Rights, responsibilities and regulation – the three Rs of education: a consideration of the state's control over parental choice in education

Abstract

Education is both a right and a responsibility. International instruments such as the International covenant on civil and political rights and the International convention on the rights of the child affirm the right of all children to education. This right is spelt out in the education legislation of all states and territories in Australia. Education is not only free but is compulsory for all children between certain ages. The obligation is imposed on parents (in accordance with definitions contained therein) to ensure that their children are both enrolled at and attend school. However, parental choice of education provider is allowed within each jurisdiction by way of state, private or church schools, all of which are registered and regulated to varying degrees by the state. The legislation of each jurisdiction also makes some degree of provision for parents who choose to opt out their children from any formal education setting and to educate them at home. Home education is also subject to state regulation. The assumption by the state of the responsibility for education guides this policy and legislation. The argument for state control of all education, no matter how and by whom it is provided, is that the state has an overriding interest in ensuring the economic well-being of its citizens and the growth of its intellectual capital. The state acknowledges that the responsibility for education is shared with parents, primarily by providing penalties for parents who fail to ensure enrolment and attendance of their children at a school. There is evidence that more and more parents in developed countries worldwide are choosing to educate their children at home, and anecdotal evidence suggests that Australia is part of this trend. To this end, this article critically examines the balance and relationship between the exercise of parental choice and responsibility in education, and state regulation and control. It does so by examining the means by which the legislation of different jurisdictions allows for choice in the exercise of the right to education, with particular reference to home education, places limitations on that choice and imposes control on the delivery of education outside state schools.

Keywords:

• home education
• parental choice
• children's rights
• private schooling

Notes

1. Cooper, B.S., and J. Sureau. 2007. The politics of homeschooling: New developments, new challenges. Educational Policy 21, no. 1: 115.

2. Stewart, D.J., and C.J. Russo. 2001. A comparative analysis of funding non-government schools in Australia and the United States. Education and the Law 13, no. 1: 29–41.

3. Varnham, S. 2008. My home, my school, my island: Home education in Australia and New Zealand. Public Space: Journal of Law and Social Justice 2: 8.

4. Harding, T., and A. Farrell, 2003. Homeschooling and legislated education. Australia and New Zealand Journal of Law and Education 8, no. 125: 128–9, quoting from Harding, T.J.A. 1997. Why Australian Christian Academy families in Queensland choose to home school: Implications for policy development. PhD thesis, Queensland University of Technology.

5. Reasons given in a 1998 report by the New Zealand Education Review Office (ERO) entitled The quality of homeschooling. http://www.ero.govt.nz.

6. This is despite the fact that the education legislation of most Australian states and territories allows for the provision of general religious instruction and special religious instruction where a need is demonstrated: for example, Education act 1990 (New South Wales) ss 32, 33 and Education (general provisions) act 2006 (Queensland) ss 76-80. See note 3. As Monk wrote: ‘In particular in the USA, espousal of home education by the Christian Right is intimately connected to their opposition to what they perceive as secular, liberal and pluralistic indoctrination in public schools’. Monk, D. 2003. Home education: A human right? Evaluation and Research in Education 17, no. 2/3: 157–66.

7. See Williams, Sally. 2007. The God curriculum. The Daily Telegraph Magazine, April 7. http://www.telegraph.co.uk/culture/3664300/The-God-curriculum.html.

8. A child is defined as a human being below the age of 18.

9. Grover, S. 2007. Children's human rights. Challenging global barriers to the child liberation movement. Melbourne: Sandstone Academic Press.

10. Article 13(3).

11. Article 18(4). For a discussion of the right to education guaranteed by the European convention of human rights see Monk, D. 2003. Home education: A human right? Evaluation and Research in Education 17, no. 2/3: 157–66.

12. While both New Zealand and Australia have ratified these instruments and such ratification is generally believed to confer a legitimate expectation of adherence [The Minister of Ethnic Affairs v Teoh (1995) 128 ALR 353], the extent of this principle was questioned by the High Court of Australia in Re Minister for Immigration and Multicultural Affairs; Ex Part Lam (2003) 195 ALR 502.

13. Green, C.L., and K.V. Hoover-Dempsey. 2007. Why do parents homeschool? A systematic examination of parent involvement. Education and Urban Society 29, no. 2: 264. See Jeub, C. 1994. Why parents choose home schooling. Educational Leadership 52, no. 1: 50.

14. Cited Cooper, B.S., and J. Sureau, 2007. The politics of homeschooling: New developments, new challenges. Educational Policy 21, no 1: 115. Although this is not the case in reality in Australia, New Zealand and the USA (see below).

15. Strange, P. How many home educators in Australia. http://www.hea.asn.au/resources/disp_res.asp?type=4&id=60.

16. Home School Legal Defence Association. Home schooling in New Zealand. http://www.hslda.org/hs/international/NewZealand/200211250.asp.

17. Yuracko, K. A. 2008. Education off the grid: Constitutional constraints on home schooling. California Law Reveiw 96, no. 123: 145.

18. Cooper, B.S., and J. Sureau. 2007. The politics of homeschooling: New developments, new challenges. Educational Policy 21, no. 1: 115.

19. Green, C.L., and K.V. Hoover-Dempsey. 2007. Why do parents homeschool? A systematic examination of parent involvement. Education and Urban Society 29, no. 2: 281.

20. Cited in Cooper, B.S., and J. Sureau. 2007. The politics of homeschooling: New developments, new challenges. Educational Policy 21, no. 1: 114.

21. Education act 1999 (New South Wales) s 22; Education and training reform act 2006 (Victoria) s 2.1.1;Education act 1972 (South Australia) s 76;Education act 1994 (Tasmania) s 4;Education (general provisions) act 2006 (Queensland) s 177;School education act 1999 (Western Australia) s 23;Education act 2006 (Australian Capital Territory) ss10, 11; Education act 1996 (Northern Territory) s21.

22. Education act 2004 (Australian Capital Territory) s 128.

23. Education act 1990 (New South Wales) s 5.

24. Education (general provisions) act 2006 (Queensland) s 77(a).

25. Education (general provisions) act 2006 (Queensland) s 199.

26. School education act 1999 (Western Australia) s 3.

27. Education and training reform act 2006 (Victoria) s 1.2.1(d) and s 1.1.1(2)(c).

28. Education act 1972 (South Australia) s 76.

29. Education act 1994 (Tasmania) s 17.

30. Education act (Northern Territory) s 21.

31. Education Act 1989 (New Zealand) s 21.

32. Yuracko, K.A. 2008. Education off the grid: Constitutional constraints on homeschooling. California Law Review 96, no. 123: 124.

33. (2008) B192878 Ct No JD00773. http://www.courtinfo.ca.gov/opinions/documents/B192878.pdf.

34. (2008) B192878 Ct No JD00773. http://www.courtinfo.ca.gov/opinions/documents/B192878.pdf. para. 2.

35. Jonathan L. et al petitioners v The Superior Court of Los Angeles County (2008) B192878 Ct No. JD00773. http://californiahomeschool.net/howTo/B192878August8.pdf.

36. Cooper, B.S. and J. Sureau. 2007. The politics of homeschooling: New developments, new challenges. Educational Policy 21, no. 1: 110–31. It is of interest in this context to consider Germany, where a key justification for compulsory schooling is the belief that it is vital to the existence of a democratic state and home schooling is outlawed – see Monk, D. 2003. Home education: A human right? Evaluation and Research in Education 17, no. 2/3: 157–66; Leuffen v Federal Republic of Germany ECHR application no. 00019844/92; Konrad & Ors v Germany [2003] ECHR application no. 35504/03, where it was held that attendance at compulsory schooling is necessary for the integration of children into society.

37. Ray, B.D. 1992.Marching to the beat of their own drum: A profile of home education research. Salem, OR: Home School Legal Defence Association.

38. Harding, T., and A. Farrell. 2003. Homeschooling and legislated education. Australia and New Zealand Journal of the Law and Education 8: 125, 128.

39. Cited in Yuracko, K.A. 2008. Education off the grid: Constitutional constraints on homeschooling. California Law Review 96, no. 123: 127.

40. 347 US 483, 493 (1954).

41. Yuracko, K.A. 2008. Education off the grid: Constitutional constraints on homeschooling. California Law Review 96, no. 123: 145.

42. For example: Education act 1999 (New South Wales) s 23; Education and training reform act 2006 (Victoria) s 2.1.2;Education act 1972 (South Australia) s 76(3);Education act 1994 (Tasmania) s 6(1); Education (general provisions) act 2006 (Queensland) s 176; School education act 1999 (Western Australia) s 23; Education act 1996 (Northern Territory) s 22(3).

43. [2003] 2 NZLR 742 (CA).

44. While concerned with different aspects, a similar view on the common issue relating to the right to education was taken very recently by the House of Lords in Ali (FC) v Headteacher and Governors of Lord Grey School [2006] UKHL 14, and in R (on the application of Begum (by her litigation friend, Rahman)) v Headteacher and Governors of Denbigh High School [2006] UKHL 15, delivered on the same day.

45. [2003] 2 NZLR 742 (CA).

46. s 8.

47. Cited in Yuracko, K.A. 2008. Education off the grid: Constitutional constraints on homeschooling. California Law Review 96, no. 123: 131.

48. Education act 1990 (New South Wales) s 73(2)(b).

49. Education act 1990 (New South Wales) s 74.

50. Education act 1990 (New South Wales) s 74.

51. [2000] NSWSC 166 (15 March 2000).

52. Contained in Chapter 5 of the Education act 2004 (Australian Capital Territory).

53. Education act 2004 (Australian Capital Territory) s 4(2)(b)(iii).

54. Education act 2004 (Australian Capital Territory) ss 130–2.

55. School education act 1999 (Western Australia) s 50. Such evaluations must be made within three months of the registration, and at least once in every 12 month period (s 51).

56. School education act 1999 (Western Australia) s 53.

57. Curriculum council act 1997 (Western Australia) s 11.

58. Home education. Department of Education and Training, Government of Western Australia. http://www.eddept.wa.edu.au/regframe/index.cfm.

59. Education act 1994 (Tasmania) s 17.

60. This is similar to New Zealand, as outlined above.

61. See s 81A Education act 1972 (South Australia).

62. Education act 1996 (Northern Territory) s 21(1)(b).

63. This is also the case in New Zealand, where it causes homeschoolers some concern.

64. Information booklet for parents applying for home education, Northern Territory Department of Employment, Education and Training.

65. Education (general provisions) act 2006 (Queensland); Education and training reform act 2006 (Victoria).

66. Education and training reform bill – home schooling consultation. http://www.det.vic.gov.au/det/resources/edtrainreform-homeschooling.

67. Education and training reform bill – home schooling consultation. http:www.det.vic.gov.au/det/resources/edtrainreform-homeschooling.

68. Education and training reform act 2006 (Victoria), clause 5.8.4.1(b).

69. See New Zealand legal and administrative issues. http://www.home.school.nz/homelaw.shtml.

70. Homeschooling: Don't ‘fix’ what isn't broken. Home School Legal Defense Association. http://www/hslda.org/hs/international/Australia/.

71. In its March 2001 report ERO stated that in the reviews conducted in the period from 1999 to 2001 90% were satisfactory; the conclusion in 7% was that the children were not taught at least as regularly and as well as in a registered school; and no conclusion could be reached for 2% of students. ERO reviews of homeschooled students, March 2001. http://www.ero.govt.nz.

72. On 28 February 2008 the Court of Appeal of the State of California handed down its decision in the case of In Re Rachael L. et al persons coming under the juvenile court law, Jonathon L. and Mary Grace L. v Superior Court of the State of California for the County of Los Angeles, (2008) B192878 (Los Angeles County Super. Ct no. JD00773), essentially holding that parents do not have a constitutional right to home school their children. The court held that the parents did not fit within the exemptions to compulsory education contained in the Code, which are that the children attend a full-time day school or are instructed by a tutor who holds valid teaching credentials (Ed.Code 48222 & 48224).

73. Upheld for example in Arkansas in the case of Murphy v State of Arkansas 852 F.2d 1039 (8^th Cir. 1988).

74. See also the case emanating from the European Court of Human Rights, Konrad & Ors v Germany [2003] ECHR application no. 35504/03.

75. Applying general laws c. 71, sec. 1. This is not the case in other states, for example, Kentucky, South Dakota and Hawaii, where there is no qualification requirement mandated for parents. For a full discussion see Cooper, B.S., and J. Sureau. 2007. The politics of homeschooling: New developments, new challenges. Educational Policy 21, no. 1, 110–31.

76. (1987) 399 Mass. 324.

77. Brunelle v Lynn Public Schools (1998) SJC-07709 at p. 4.

78. In Australia it is difficult to obtain accurate statistics due to the varying state and territory provisions for dispensation from compulsory education and registration for home schooling and, anecdotally, the failure of many home-schooling parents to take any formal action. A study undertaken in Queensland in 2003 showed an increase from 907 in 1996 to 1474 in 2002 of parents who had applied for dispensation from compulsory enrolment for their children. Homeschooling organizations, from their experience and using Queensland as an example, report an increase in the numbers of children being schooled at home throughout Australia.

79. In New Zealand the number of children being schooled at home increased by 22.8% from 1988 to 2007. www.educationcounts.govt.nz/statistics.

80. See the National Center for Educational Statistics. http://nces.ed.gov/pubs2006/homeschool.estimated.asp.