Tempest over attendance law: It’s all about money and power

800px-School_bus_invasionMuch will be argued over Senator Aaron Osmond’s proposal to revise Utah’s compulsory attendance law, but my guess is, most people will ignore the central question: Who (or what) has final say over the education of children? Utah’s compulsory attendance law provides one answer: the state. But other Utah statutes, not to mention the Utah Supreme Court and United States Supreme Court, provide another answer: parents.

I think there is some room for fact-based, reasonable compromise to align Utah’s compulsory attendance law with federal and state constitutional law and other state statutes.

In 2003 and again in 2011, Sutherland Institute detailed in a publication, Saving Education and Ourselves: The Moral Case for Self-Reliance in Education, the legal and public policy histories regarding the “upbringing and education” of children. Additionally, a former Sutherland board member, Daniel Witte, and I authored a paper for Brigham Young University Law Review (2008), “Removing Classrooms from the Battlefield: Liberty, Paternalism, and the Redemptive Promise of Educational Choice,” wherein we argued, in part, that the pretext for compulsory education has been used consistently by federal and state governments to unjustly assimilate (i.e., “Americanize”) indigenous, immigrant and religious minorities – a pretext that assumes that the state has the final say over the education of children.

Closer to home, during the great voucher debate of 2007, I wrote Vouchers, Vows, and Vexations: The Historic Dilemma over Utah’s Education Identity – again, providing some historical narrative about the control of education, especially (and unavoidably) regarding the experience of Latter-day Saints with public education in Utah.

This debate over who controls the education of children is an old and important one.

Senator Osmond resurrects a very practical point: Even if you believe in compulsory attendance laws, you’d be hard pressed to prove they have any relationship to academic performance – unless your academic bar is set so low that a child’s mere presence in a classroom, absent any achievement, is considered a success. By the way, that’s the fear-based “do you want them roaming the streets?” retort. It’s also a subtle form of racism given that the “them” in that retort are always “at-risk” (read: minority) students.

What I really enjoy in this debate is how it uncovers the façade of public education ideologues and forces all of us into the same reality. It forces us to ask defining policy questions, in this case: Who (or what) has the final say over the education of children? And, notwithstanding all of the obfuscation by the ideologues, the answer is clear. How clear? Crystal.

Despite the delusions of public education ideologues, the state has no claim on a fit parent’s child, even in the name of education. Because there is no constitutional right to education (it’s true … read it here, here, and even here), there is no legal responsibility accorded to the state to claim every child as its own. That Utah has a constitutional requirement to provide a system of “free” public education accessible to any school-age child does not mean that every school-age child in Utah belongs to the state or must attend a public school. Utah’s constitutional provision for public education simply means it’s provided, and when provided, it is open to all school-age children if parents choose to utilize that form of schooling. And these facts don’t change even if 95 percent of Utah families use public schools.

Here’s another legal fact: If a parent does choose to utilize public schools to educate a child, that parent no longer has any direct say in that child’s education.

What? How can that be? Public schools and parents are “partners in the education of children,” aren’t they?

Well, no. And here is another reality that Senator Osmond’s compulsory education debate will reveal: Public education officials always will have the final say inside public schools; the voices of parents are ultimately irrelevant. Legally, if a parent puts a child in public school, that parent’s voice is subordinate to the authority of school officials. Period.

Read Fields v. Palmdale School District, a decision from the United States Court of Appeals, Ninth Circuit – and we have no reason to think that the Tenth Circuit would rule differently. Parents in Palmdale, Calif., thought they had a say in sex education curricula in their local public schools. Turns out they were wrong. Please pay close attention as you read from that decision,

As the First Circuit made clear in Brown, once parents make the choice as to which school their children will attend, their fundamental right to control the education of their children is, at the least, substantially diminished. The constitution does not vest parents with the authority to interfere with a public school’s decision as to how it will provide information to its students or what information it will provide, in its classrooms or otherwise. … Perhaps the Sixth Circuit said it best when it explained, “While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child. Whether it is the school curriculum, the hours of the school day, school discipline, the timing and content of examinations, the individuals hired to teach at the school, the extracurricular activities offered at the school or, as here, a dress code, these issues of public education are generally ‘committed to the control of state and local authorities.’ ” Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395-96 (6th Cir. 2005). We endorse and adopt the Sixth Circuit’s view…

In sum, we affirm that the Meyer-Pierce right does not extend beyond the threshold of the school door.

Can you see why public education ideologues fight to maintain compulsory attendance laws? It’s a matter of political power and, ultimately, money. Once a child crosses that public school threshold, parents give up their rights for all intents and purposes – and, if you run a public employee union, such as the Utah Education Association, you relish this power and fight to the death not to relinquish it; your union is a government unto itself with this power and you’re not going to let go of it. Revising Utah’s compulsory attendance law disrupts, perhaps eliminates, that power.

Let’s be clear about this: The real opposition to revising Utah’s compulsory attendance law comes as a result of disrupting the political power of public employee unions and affiliates, not as a result of eliminating the public interest or the common good.

Utah’s compulsory attendance law holds all school-age children (and their parents) accountable to the state – without any rational or compelling nexus between academic success and compulsory attendance. Under our current compulsory attendance law and culture, private schooling and home schooling are not natural, constitutionally granted exceptions to the rule of compulsory attendance – these exceptions are noblesse oblige from the education elite, granted statutorily by the state. In other words, a child attends a private school or a home school in Utah only by permission of the Legislature – again, notwithstanding a fit parent’s constitutional fundamental liberty interest in the upbringing and education of a child – passing laws influenced heavily by the education “experts” and the business community. In Utah, a clear constitutional parental right has become a political football; hence all of the hoopla over Senator Osmond’s proposal.

The educational irony, of course, is that parental involvement is the only sure factor in the academic success of a child – so what is granted to parents noblesse oblige, through the arrogance of the education elite, is actually the solid foundation for academic success. The “rights” granted begrudgingly and antagonistically by the education elite to Utah’s parents to educate their children any other way than in a public school are actually the only sound basis for educational achievement. That’s a pretty condemning aspect of any attempt to keep parents in their proper place through compulsory attendance laws.

So how do reasonable people overcome such political power and reaffirm the integrity of constitutional law in this case?

Perhaps a compromise for Senator Osmond to consider might be to uphold the constitutional fundamental liberty interest of fit parents in the upbringing and education of their children, through a revision of the current compulsory attendance law, by explicitly exempting school-age children who do not utilize the public school system as their primary mode of schooling, while maintaining a compulsory attendance law for those school-age children who do? Such a compromise would align law and public policy.