Mississippi Initiative 42 — Part III — How It Impacts Homeschooling

My wife home-schools our two children. She has been asking me to discuss the ramifications of homeschooling in the context of Mississippi Initiative 42.

On November 3, Mississippi voters will decide the fate of Initiative 42. According to the Secretary of State’s office, Initiative 42 seeks to amend the Mississippi Constitution of 1890 as follows:

To protect each child’s fundamental right to educational opportunity, the State shall provide for the establishment, maintenance and support of an adequate and efficient system of free public schools. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.

Looking strictly at the text of this referendum, the impact on homeschooling simply is not particularly clear.

On the one hand, Initiative 42 says absolutely nothing about homeschooling. All it requires is that the State “provide for the establishment, maintenance and support of an adequate and efficient system of free public schools.” As such, there is nothing in the proposed amendment that overtly requires a homeschool parent to enroll his/her child into a “free public school.”

On the other hand, Initiative 42 also states that each child has a “fundamental right to educational opportunity.” Naturally, all children – including home-schooled children – would be vested with this fundamental right. And since Initiative 42 describes how the State will “protect” this fundamental right – by “the establishment, maintenance and support of an adequate and efficient system of free public schools” – one could make the case (by reverse implication) that the fundamental rights of home-schooled children would be unprotected unless they were to enroll in the “adequate and efficient system of free public schools” that is provided by the State.

Let’s digress for just a moment. Think about the word “protect.” To protect someone implies that there is an external threat, does it not? Hypothetically, if one were to live in a society that is completely devoid of crime, one would not need police protection. Similarly, if one lived at a time where disease was completely eradicated, one would not need the protection of vaccines. Along these lines, since Initiative 42 seeks “to protect each child’s fundamental right to educational opportunity,” this need for protection would imply that some people want to undermine the educational opportunities of Mississippi children. So, pray tell, who are these people?

The proposed amendment is not exactly clear as to who (or whom) the “bad guys” are. From reading their material, the proponents of Initiative 42 seem perturbed with the Legislature for not funding education. So the “bad guys” are probably the men and women we have elected to make our laws, and not the parents who home-school their children. Nevertheless, if the powers-that-be were ever to view homeschool children as the victims and their parents as being the perpetrators, they could attempt to use Initiative 42 as a weapon to end homeschooling in Mississippi. (Whether that would fly is something that I cannot predict since the text is ambiguous.)

Although I do not see anything in the text that would implicate homeschooling at the present time, legal realists who believe in a “living breathing” U.S. Constitution may see an identical opportunity to breathe new meaning into the State Constitution if Initiative 42 passes. Because if the State must “protect each child’s right to educational opportunity,” how then would the State guarantee equal protection to all children if some children are not enrolled in the “adequate and efficient system of free public schools?”

In fairness to the proponents of Initiative 42, I do not believe this is their intention, nor do I believe the risks vis-à-vis homeschooling are great (insomuch as future restrictions on the practice may be concerned).

However, I do see one serious concern for homeschool parents. If the Constitution of Mississippi defines “educational opportunity” as being “each child’s fundamental right,” then a homeschooled child could one day have a cause of action against his parents for negligence if he felt that he had been deprived of a proper education.

Putting all the bad aside, there is one positive to homeschooled parents if Initiative 42 passes. Parents who homeschool their children might be able to require the State to allow their children to take some – albeit not all – classes at public schools.

In the final analysis, this is a mixed bag for homeschoolers and their parents. Although I do not believe that it will ban homeschooling, one day it might be used as a weapon to that end by those who are opposed to parental control over education. Likewise, it could open parents to civil litigation from disgruntled children. But, at the same time, it could open doors to public schools that may otherwise be closed to homeschool parents.

I intend to vote against the measure, but not because I am a homeschool parent. I intend to vote against the measure because I am a lawyer who believes this proposal is poorly written and far too ambiguous to be placed into our State Constitution.

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