Comments on “Reconstituting the Right to Education” by Joshua E. Weishart

Comments on “Reconstituting the Right to Education” by Joshua E. Weishart

 PERSPECTIVES – News and Comments 1

 Brian D. Ray

National Home Education Research Institute, Salem, Oregon, USA

References to homeschooling are showing up in an increasing number of sometimes obscure places. For example, Weishart (2016) mentions homeschooling in two of his footnotes. The opening to the article presents the author’s dilemma.

Deconstructed, the right to education held by children has been formulated doctrinally as both a claim-right, imposing affirmative duties on the state to act, and an immunity, disabling certain state action. These two strands—oft-manifested as the claim-right to educational “adequacy” and an immunity entailing “equality” of educational opportunity—once considered irreconcilable are actually interlocked by the right’s core, historical function to protect children’s liberty and equality interests.

And yet the right to education is ill-equipped to fulfill its protection function. Education clauses in state constitutions do not fix the standards for mutually enforcing equality and adequacy. This encumbers already-reluctant courts in addressing educational disparities and emboldens legislative resistance when they do. Appreciating that the right to education has a protection function entailing equality and liberty interests nevertheless suggests that it can be adjudicated in a way that unifies the demands and guarantees of substantive due process and equal protection.

It appears that Weishart is bound and determined to find a way for the state, the government, to define, construct, and promote its preferred understanding of a child’s right to an education – in a way that is consistent with Weishart’s belief system – sooner rather than later. Near the end of his treatise, the author concludes the following:

Together, substantive due process and equal protection guarantees can have synergistic effects but precisely how they should be balanced, if at all [since the Supreme Court did not clearly address this in Obergefell], in adjudicating the right to education bids further research and consideration.385 I suspect that the lodestar for the analysis is the right’s protection function in securing children’s liberty and equality.

Homeschooling enters the author’s discourse when addressing to what extent a parent has the (ultimate or full) authority to direct a child’s education, especially if a scholar or the state thinks that the education being given – or might be given – to a child does not meet the scholar’s or state’s faith-based standards. That is, all systems of education and what constitutes a proper or right education are based on presuppositions and, in the end, faith in something that is not ultimately provable against an absolute standard upon which every person in a society agrees. Consider Weishart’s footnote 87 (p. 15). He references works in which authors present cases involving homeschooling where courts have not been enthusiastic about, or “… have balked at …” clearly holding that there is a fundamental parental right to direct their children’s education.

In footnote 221 (p. 36), Weishart cites other authors to argue that the state’s education obligations are non-waivable. In this footnote, the author also claims the following:

To be sure, parents or guardians can “waive” the state’s duty to provide a publicly funded education to their children, but the duty itself is not relinquished; it is merely assumed by the parent or guardian to pay for private education or homeschool the child. Therefore, the right to education remains inalienable.

That is, he is arguing that simply because parents are not required by the state to use state-offered education/schooling, parents do not necessarily have the right or authority to provide an education/schooling to their children.

Weishart misses two fundamental things in his theoretical piece. First, he fails to clearly state his agenda and his worldview and where it is taking him in terms of defining education, to which he apparently wants a child to have a right. In other words, it appears he never defines education. A theoretician should define the construct to which he wants Americans to have a right before proceeding with his case. Maybe footnote 261 was his effort to define education, in which he writes:

  1. See, e.g., Abbott IV, 693 A.2d at 429 (“[A] constitutionally adequate education has been defined as an education that will prepare public school children for a meaningful role in society, one that will enable them to compete effectively in the economy and to contribute and to participate as citizens and members of their communities.”).

This definition, however, is about public school children and it is so vague that a committee of twenty randomly selected full professors of education might never be able to reach consensus on a practical application of this definition. Even if they did, a state legislature would have much trouble voting on one.

Second, Weishart fails to note that all children as Homo sapiens young, ipso facto, receive an education. Further, parents do, de facto, and as parents, ipso facto, provide an education to and for their children, whether or not it meets Weishart’s standards or the criteria that legislators or experts or bureaucrats in any given state might contrive for children who will become adult citizens. For example, a boy (whether public schooled, private schooled, or homeschooled) who grows to be a man and cannot read a book and never votes in elections but has a strong work ethic as a welder, is respectful of his neighbors, obeys the laws of the land, enjoys creating watercolor paintings of landscapes, and diligently provides food, shelter, and clothing for his family is an educated man. For another example, a girl (whether public schooled, private schooled, or homeschooled) who grows to be a woman who cannot do multiplication facts and never wanted to go to college but leads a book club in her neighborhood, nurtures her three children, and lives frugally on a meager household income is an educated woman.[1]

Does Weishart think that the state must define and mandate “an education” in order for boys and girls to grow up to be thoughtful, respectful, and productive American adults? Does he think that all of the government-run planning, defining, testing, controlling, expert-opinion policy making, tax funding, teacher training, certified-teacher-education delivering that has been offered and given over the past 115 years to the majority of American children has brought our society to a place of Nirvana that significantly supersedes that of the late 1800s? If yes, then perhaps thinking as utilitarians, America needs more government control of education. If not, what is the point of Weishart’s argument? If one would rather proceed as a classical liberal, freedom-loving, or scripture-based thinker, instead of a utilitarian or statist, then one would think Weishart’s agenda is worthless.


Weishart, Joshua E. (2016, in press). Reconstituting the right to education. Alabama Law Review, 67, 1-63. Retrieved January 23, 2016 from


  1. The “Perspectives – News and Comments” section of this journal consists of articles that have not undergone peer review. ¯

[1] I am fully aware that these examples, of a boy and a girl, may be construed as sexist.