Of fundamental rights, HSLDA, and homeschooling

I wasn’t planning on writing more about HSLDA but I was talking to my mom today about HSLDA’s refusal to do anything about child abuse and how it made absolutely zero sense to defend abusers. As I moved on to talking about how I feel that they’re using the Romeike family as pawns in their effort to establish homeschooling as a fundamental right, something dawned on me. Notice that phrase “fundamental right”? It’s a phrase they’ve been throwing around an awful lot when talking about the Romeike case. In law, “fundamental right” has a very specific meaning. It refers to those rights that are basic, foundational rights–things like life, liberty, freedom of association, freedom of movement, freedom of religion, the right to marry, and the right to due process. Under US constitutional law, fundamental rights automatically trigger strict scrutiny. That is, for any law restricting a fundamental right to pass constitutional muster, it must be narrowly tailored to achieve a compelling government interest and must be the least restrictive means of achieving that end. Strict scrutiny is a standard that very few laws can meet. I’ve lost track of the number of times I’ve heard professors describe strict scrutiny as, “strict in theory, fatal in fact.” If you can get the courts to find something to be a fundamental right, you’re pretty much home free. Very few regulations of fundamental rights can survive the strict scrutiny analysis. So, how does this apply to homeschooling? Right now, homeschooling is protected under parental rights to direct the education of their children. Religious freedom comes into play to some extent (especially if you’re Amish–the courts don’t like to mess with the Amish), but with parental rights it’s still a balancing of the right of the parent with the right of the child and the interest of the[…]

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