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Why Michael Farris is Wrong about Ron Paul on Homeschooling


I just came across this particular Facebook post from Michael Farris of the Home School Legal Defense Association (HSLDA) and Patrick Henry College. It doesn’t surprise me at all given his previous posts regarding his belief that Ron Paul is dangerous and unsuitable for the presidency. While he has done great things for home schooling in this country, Farris is someone who believes that Lincoln was justified in his position and actions against the southern states before and during the Civil War (which seems difficult to comprehend in light of the way Lincoln trashed the Constitution, judicial system, due process, and the 10th Amendment during his presidency). I say this based on personal correspondence that my dad had with him a few years back, along with his own published writings.

[1/12/2012 @ 10:45pm: I have learned some new things about Ron Paul, the Constitution, and my arguments over the last 72 hours. If I were to write this article right now, I would change some of it in a few significant ways. But since a couple thousand people have already read this and many have linked to it, it wouldn’t be fair to simply modify the article, even if I no longer agree with everything I wrote. So, for the most complete view of my argument along with its history, feel free to read this including the two updates at the bottom, but please also read the revised analysis and rebuttal, Michael Farris, Homeschooling, and Ron Paul Redux. It is more thorough and deals with other underlying legal issues. I do still believe Michael Farris is wrong about Ron Paul on Homeschooling.]

Now, I am admittedly a very big fan of Ron Paul, and I think he is consistent, honest, and full of integrity. But lest you think I am blindly biased or only trying to kill the messenger, let’s look thoroughly at Mr. Farris’ argument.

The core of Dr. Paul’s supposed heresy is this:

“Ron Paul is an enemy of the legal principles that the homeschooling movement has used successfully to defend our freedom to teach our own children. He recently said that he does not believe that the 14th Amendment trumps the 10th Amendment. He said this is an abortion context (which proves that he is not politically pro-life) but, let’s examine what this means in a homechooling context.”

He then explains that this means that Dr. Paul believes that the 10th Amendment gives states the right to prohibit or regulate homeschooling, by virtue of the fact that Farris has leveraged the 14th amendment to win some of his cases:

“The case I won before the Supreme Court of Michigan for homeschooling freedom was based on the 14th Amendment. The federal constitutional principles of religious freedom and parental rights overrode the power of Michigan to require homeschoolers to all be certified teachers.”

Then, he makes this patently false claim, presumably to scare us:

“Home schooling would be legal in about 3 states in this country today if Ron Paul’s view of the Constitution was actually practiced by the Supreme Court.”

And finally, he asks this very loaded question, which sums up the straw-man argument:

“Do you agree with Ron Paul that the states have the exclusive authority over the legality of homeschooling and the 14th Amendment provides no constitutional right to homeschool?”

Yikes. How could any self-respecting homeschooler, or any advocate of civil liberties for that matter, support such a horrific concept? (I say “loaded question” in this case because the wording only allows him to be correct, and he’s actually asking us whether or not we are misguided idiots.)

The problem is that he has either twisted or misunderstood what Ron Paul actually believes and clearly says. First, let’s examine the particular part of the 14th Amendment in question, known as the “due process” clause:

“No state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

And here’s the full text of the short and sweet 10th Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

And now, Dr. Paul’s 10th vs. 14th Amendment quote that serves as the basis for the argument:

“The Fourteenth Amendment was never intended to cancel out the Tenth Amendment. This means that I can’t agree that the Fourteenth Amendment has a role to play here, or otherwise we would end up with a ‘Federal Department of Abortion.’ … We should allow our republican system of government to function as our founders designed it to: protect rights at the federal level, enforce laws against violence at the state level.”

This was a written statement offering clarification, included as an addendum to his recent signature of the Personhood Pledge. It was clearly written with respect to abortion and not homeschooling, though at least Farris does admit that much. Ron Paul clearly believes that life begins at conception and therefore that abortion is killing a child. The individual rights of the unborn are no different from the individual rights of any other person. Abortion ought to be subject to the exact same laws that “regular” killing is, and these laws are written and enforced on a state level. However, the federal government DOES exist, as he stated, to protect rights, including the right to life. Therefore, no state can make a law that allows murder.

Farris would have us believe that Ron Paul thinks the choice for whether to allow homeschooling should be left up to the states. Nothing could be further from the truth. Here’s Dr. Paul’s official position.

Notable excerpts:

“Ron Paul believes no nation can remain free when the state has greater influence over the knowledge and values transmitted to children than the family does. … Congressman Paul wants parents to have the freedom to choose the best educational options for their children, and his commitment to ensuring homeschooling remains a practical alternative for American families is unmatched by any other Presidential candidate. As President, he will veto any legislation that encroaches on homeschooling parents’ rights. Returning control of education to parents and teachers on the local level is the centerpiece of Ron Paul’s education agenda.”

This is consistent with the volume of material written and spoken by Dr. Paul. Remember that he wants to (and has always wanted to) completely shut down the Department of Education, without delegating any of its roles to the states (as he would do with some other federal departments).

In Ron Paul’s view of the Constitution, contrary to what Farris says, any attempt whatsoever by either the state governments or the federal government to try to limit or otherwise control the legality of homeschooling is a clear violation not of the 14th Amendment, but of the 4th Amendment: the right to privacy. While the 14th Amendment is not bad, the 4th Amendment makes it mostly irrelevant in the case of homeschooling. The Constitution provides absolutely zero authority for the federal government to affect education. Presumably, individual state constitutions do not either, but if they do, that is a separate issue to be addressed as that would put states in violation of the 4th Amendment as well.

The 4th Amendment provides a strong foundation for keeping government entirely out of our personal lives until and unless we violate the rights of someone else (which, as Dr. Paul states, it is the role of the federal government to prohibit nationally and of the state government to punish locally).

Simply stated, with respect to homeschooling, the 14th Amendment says this:

“We can’t tell you not to teach your kids at home unless we do it in a way that maintains equality under the law.”

…while the 4th Amendment says this:

“We can’t tell you not to teach your kids at home.”

Which one is more reassuring?

As to Farris’ claim that, with Dr. Paul’s interpretation, homeschooling “would be legal in about 3 states,” it is easy to see that with Dr. Paul’s interpretation homeschooling would be legal in every state, with zero government restrictions. The 4th Amendment is extremely important to Ron Paul.

And as for his final question:

“Do you agree with Ron Paul that the states have the exclusive authority over the legality of homeschooling and the 14th Amendment provides no constitutional right to homeschool?”

Ron Paul clearly does not believe that the states have any authority, let alone exclusive authority, over the legality of homeschooling. And, strictly speaking, the 14th Amendment provides no such right to homeschool. That’s what the 4th Amendment does, combined with the utter absence of educational authority specified in Article 1, Section 8. The 14th Amendment, on the other hand, merely says they can’t take away any rights without due process. [Note: see Updates #1 and #2 below for further discussion of this point, which I would clarify differently, having done more research.]

However, I believe that Mike Farris also opposes Ron Paul on his drug policies, which indicates that perhaps he does not appreciate such a comprehensive, all-encompassing understanding of the 4th Amendment in the first place.

For some additional arguments and perspectives, check out these posts from others:

Update #1 – 1/9/2012 @ 8:30am

Michael Farris makes the following argument against using the 4th Amendment:

“The 4th Amendment prevents unreasonable searches and seizures. It is the 4th Amendment that we use to stop social service agencies from invading people’s homes. But, like the rest of the Bill of Rights, the 4th Amendment does not apply directly to the states. It only applies through the 14th Amendment. Anyone who claims that the 4th Amendment will protect homeschooling against state governments but that it is improper to use the 14th Amendment is simply and totally wrong and demonstrates that they know absolutely nothing about this area of law. Moreover, the 4th Amendment has nothing to say to any level of government about issues arising from compulsory attendance laws. That is straight up 14th Amendment issues with a bit of 1st Amendment thrown in on the side.”

This is misleading, particularly with respect to homeschooling. The 4th Amendment has indeed been incorporated against the states. Much, but not all, of the Bill of Rights are forced against the states via the Incorporation Doctrine. This is not the same as using the 14th Amendment as a legal basis (let alone the only legal basis) for applying the 4th Amendment to the states. From the linked page about the Incorporation Doctrine:

Rep. John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth applied the first eight Amendments of the Bill of Rights to the States. The U.S. Supreme Court subsequently declined to interpret it that way. Until the 1947 case of Adamson v. California, Supreme Court Justice Hugo Black argued in his dissent that the framers’ intent should control the Court’s interpretation of the 14th Amendment, and he attached a lengthy appendix that quoted extensively from Bingham’s congressional testimony. Although the Adamson Court declined to adopt Black’s interpretation, the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending to the States almost of all of the protections in the Bill of Rights, as well as other, unenumerated rights.

This is not at odds with Ron Paul’s position on the 4th, 10th, and 14th Amendments with respect to either homeschooling or abortion. However, it is at odds with Mr. Farris’ position on the 14th Amendment.

However, it is admittedly true that a plain, logical reading of the 4th Amendment does not indicate anything about compulsory attendance. This is a separate issue. The federal government has no Constitutional authority in the realm of education, and so cannot force you to attend school any more legitimately than they can force you to purchase health insurance. However, there may be room in this area for individual state constitutions to require some kind of compulsory public education, as long as that is clearly specified as part of that state’s authority. They still may not prohibit homeschooling (the core of the argument here), but if the state does include compulsory public education as part of their governing document, then it is up to the citizens of that state to change that legally, or move to a different state where there is no such requirement.

On a different note, Mr. Farris has said that he is pursuing a possible debate/discussion directly with Dr. Paul, which is an excellent way to resolve (or at least clarify) this whole thing. I hope they actually do it.

Update #2 – 1/9/2012 @ 1:15pm

I am continuing to learn here, and I have to be up-front with what I have discovered about the previously mentioned Incorporation Doctrine. Ron Paul apparently does not believe this is a wise approach to expanding federal power, even though in many cases it has been used in ways where I (and he) would agree in principle with the outcome. If individual rights (life, liberty, property ownership, free speech, privacy, etc.) are universal and unalienable, then it seems like a good thing to enforce them universally. But doing so by reinterpreting the federal Bill of Rights so as to apply them to the states, which the states clearly did not sign up for in the beginning, may not be the right way to do it. It is still an expansion of federal authority beyond what was written, effected by the Supreme Court. I believe this is not allowed, given logically and thoroughly consistent reading of the Constitution as written.

It seems that many of the states have their own equivalent Bill-of-Rights-style language in their governing documents, and this is where the true authority is. The federal government has limitations on itself, while it has virtual no limitations on the states from a strict literal reading. The Incorporation Doctrine is a bit dangerous in this light, since it allows for an expansion of federal powers beyond what was written—even if, in many cases, this has been used in an arguably good way.

This does not change the constitutionality of federal interference in education, but it does affect the scope of what individual states can theoretically do (depending on their own respective state constitutions). My argument is largely the same, but leaves more potential for fighting battles on the state level. Federal legislation regulating, allowing, or prohibiting homeschooling still has no constitutional authority.

This is largely a moot point at this time, since the Incorporation Doctrine is alive and well—whether or not it should be from my or Ron Paul’s perspective. But it is important to note that this doctrine will not be used as a central part of a Ron Paul administration, at least not if he has anything to do with it. Given his strong pro-homeschooling perspective, the precedents that already exist, his desire to eliminate the Department of Education, and the growing social acceptance in general of homeschooling, I don’t believe this will be a significant problem.

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Evan January 9, 2012 - 12:19 pm

Thanks, Excellent critique of Farris’ and his dishonest debate tactics.

Spunky January 9, 2012 - 12:32 pm

Nicely written. I do have one question for you….

You wrote, “The Constitution provides absolutely zero authority for the federal government to affect education.”

Then how do you explain Dr. Paul’s advocacy for a $5000 homeschool tax-credit? This gives the IRS authority to potentially define who is a homeschooler and what is a legitimate educational expense, or institution. Paul’s desire to give us back some of our money is noble but with a terrible outcome and very weak Constitutional legitimacy. Add to that Paul’s desire to ensure that homeschoolers are treated “fairly” in federal hiring and you have another potential arena for federal mischief.

Jeff Rowberg January 9, 2012 - 12:54 pm

Thanks, Spunky. You ask a valid question about tax credits. My understanding is that Ron Paul will vote affirmatively for any change to the tax code that lets individuals keep more of their income. Given that he thinks the IRS and the income tax shouldn’t exist at all (and fully intends to end them both if possible), this seems to be defensible. I don’t know how that might set a dangerous precedent, even if the IRS does then need/get to specify what qualifies someone as a homeschooler; the end result is that whoever does fall into the category gets to keep more of their money, while the rest of us are no worse off.

Dr. Paul’s desire for homeschoolers (and every individual, for that matter) to be treated fairly is based on his understanding of universal individual rights, not specifically of “homeschooler’s rights” or something like that. Whether someone is classified by the IRS as a homeschooler or not should, in his view, have no bearing at all on their treatment by the federal government. Can you elaborate on how this might actually result in mischief?

Spunky January 9, 2012 - 1:32 pm

” don’t know how that might set a dangerous precedent, even if the IRS does then need/get to specify what qualifies someone as a homeschooler; the end result is that whoever does fall into the category gets to keep more of their money, while the rest of us are no worse off.”

Because right now the federal government tax code is silent on homeschooling and that is as it should be. Homeschooling is an educational choice and using the tax code at the federal level to incentive this choice has not been done and a bad precedent. The need to specify who qualifies will have ramifications in other areas. And those who don’t qualify are worse off because of the ramifications in other areas. So for example, currently the FAFSA (federal student aid form) has a question for “valid” high school diploma or homeschooled. Given that this is a finance form it is conceivable that the IRS definition could be applied here. And FAFSA not only affects federal money, but private scholarship money which uses FAFSA (and many do.) it can also affect how much money is allocated to the student. Because as my daughter found out when she chose not to fill out FAFSA because she didn’t want to go to the Feds first, she was not considered for other private money that the university had available because the assumption was that there was no financial need. The same can be said of a homeschooler who chooses not to identify themselves on the tax form as a homeschooler for the tax-credit. Well if they don’t declare that they are homeschooling and they don’t have their child in a “legitimate educational institutuion” where are they going to school. Because not taking the tax credit would be a huge red flag because according to the IRS no one in their right mind would refuse a tax credit. Lol. And if a the university accepts federal dollars (most do) the number of “valid” verses homeschooled students is easily manipulated. There’s so much more to this but that is one example of the mischief when the federal gov’t begins to identify who is a valid homeschooler. And it’s easy to say that Paul would just abolish all of this. Great but in the meantime he’s also proposing something that strengthens it. And the worst way to abolish something is to make it stronger and more people dependent on it.

Spunky January 9, 2012 - 1:48 pm

“Dr. Paul’s desire for homeschoolers (and every individual, for that matter) to be treated fairly is based on his understanding of universal individual rights,”

Find but how does the IRS do this given that there are 50 distinct definitions of homeschooling based on the one resides? Do they use Michigan where it is easy or Pensylvania where it is more onerous? Is that something for the IRS to decide. No? It is a state issue. But if they don’t pick one state and let each one who claims a credit use his own state’s definition, the IRS is not longer treating homeschoolers fairly at the federal level and a homeschooler in PA is providing more info than a homeschooler in MI to prove they are a legit homeschooler. And this says nothing about what is a legit educational expense. Are the pots and pans I use both for dinner and home ec. a valid expense? How about my bible? Do we want the IRS (with some help from the ACLU) getting into this so we get a tax break? I sure don’t.

So while I appreciate the rebuttal of Farris as a learning exercise but he’s not running for anything. But Paul is and I would like to a valid explanation for these policies of Paul’s that create a real dilemma for a candidate who says he wants education to remain a state/local issue. This does the exact opposite.

Jeff Rowberg January 9, 2012 - 2:41 pm

I think you are complicating the issue on two important points. One is that the IRS already does things differently on a state vs. federal level. They could certainly have a federal deduction for homeschooling, and/or up to 50 unique state deductions with different criteria. This would be “fair” in the important sense, although it would be complex. I do not think it is the best solution, but it is not a bad outcome when choosing between no tax credits and some tax credits. The goal is to eliminate ALL credits and loopholes by eliminating the income tax. Poof, problem solved. Except, this cannot be done easily or instantly. So in the mean time, when Congressman Paul has an opportunity to vote in favor of taking less money from people, he goes for it.

The other point is has to do with the side effects you mention. If a tax credit for homeschoolers also incorporates an extra tax burden in a different area, that’s a separate problem (and would likely result in a “no” vote from Dr. Paul). The FAFSA problem you use for an example is not a problem because of tax credits and qualifications, it’s a problem because of inefficiencies or other issues within the private scholarship system. If a private university chooses not to consider anyone for private financial aid if they haven’t already asked for federal aid, that’s their business unless they are in violation of whatever federal requirements are placed on them as a result of taking some federal funding. Requiring a prior request for federal funding seems to me like an odd requirement to qualify for private funding, but that is their prerogative.

Keep in mind that Ron Paul also believes that federal funding for education in the form of scholarships, grants, or loans is also unconstitutional (and I would agree). Separately, if a homeschooler chooses not to identify themselves as such on their tax return, why is that a problem? The IRS doesn’t usually consider it to be bad when you let them keep more of your money. I do agree that the federal tax code should be silent on homeschooling, but only as a consequence of being wiped out entirely. Until the government stops believing it is justified in taking money that I earn simply because I earned it (a.k.a. income taxation), then I am all for any incremental movement in that direction (provided it is not offset by a step in the opposite direction in some other area).

Also, I still maintain that simply voting in favor of tax credits for homeschoolers doesn’t strengthen the federal government’s grip on education. It would honestly seem to do the opposite. As Dr. Paul says, if you subsidize something, you tend to get more of it. (Calling a tax credit a “subsidy” is definitely the wrong label, but the economic result is still the same on the bottom line.) If people get to keep more money if they teach their kids at home, then more people will be inclined to do it. That takes them out of the government-indoctrinating school system, which can have a huge impact on the kind of people those students turn out to be.

Spunky January 9, 2012 - 3:13 pm

You said, “The goal is to eliminate ALL credits and loopholes by eliminating the income tax.”

IF that is the ultimate goal then offering a tax in a new area previously is certainly counter productive. And I’m not disputing that they do things differently on a state versus federal level, I am saying that this would be doing things unfairly to two equal homeschoolers at the state level simply because of the state where they resde. But both live in the United States and under a federal tax code should be treated equally. That cannot be done without creating a uniform IRS standard for who qualifies as a homeschooler. And that’s not a precedent I want to set. This only strengthens the IRS’s authority and is counterproductive to said goal.

A homeschooler who chooses not to identify is not immune to the ramifications of a federal definition. When my two sons applied for the military as high school homeschoolers their diploma was considered not valid even though they met our state requirements. They said we could overcome this if we had 15 college credits, something not required of a “valid” high schooler. This was done by federal guidelines but the origin was not known and they would not document it for me. We successfully over came this obstacle but federal guidelines whether they be through the military or the IRS have implications that reach beyond the scope of the tax code. Add to that Common Core which I haven’t even gone into that creates a uniform standard and has been adopted by 48 of the 50 states and it is likely that the federal tax code would likely adopt this structure for the tax credit. Since some homeschoolers would have to meet that standard as part of their individual state requirements. And that leads into my final point that this is Paul is not just proposing a homeschool credit but a education tax credit. So it is likely that the Common Core State Standard will factor in the regulation because a “legitimate” educational institution will have to use the Common Core Standard.

This is an educational tax credit so it just isn’t for homeschoolers but anyone who can prove their child attends a “legitimate educational institution” public, private, or home school. So the idea that this would create more home schoolers is dubious. Especially since a public school parent gets free “tuition” and then can expense their other costs.

Jeff Rowberg January 9, 2012 - 5:31 pm

Again, you are warning us against something that has already happened. People residing in two different states are under different state tax laws already. But they are under the same federal tax law. If one state provides a homeschooling tax credit and the other one doesn’t or does so with different criteria, is that unfair? It certainly isn’t equal. But each person chooses to live in whichever state they live in, and different states have different laws.

I have worked at the same job for a company in Orange County, CA for over eight years. In 2009, I moved to Virginia, and my taxes went down overall because of the differences in state tax laws, even though my job is exactly the same. While it’s not equal, it’s hardly unfair. For a tax credit specified as part of the federal tax code, they could certainly use a single set of criteria that applies to all US citizens, and it might not match with individual state definitions. So what? This is hardly new, unfair, or dangerous. If states provide their own homeschool tax credits, then their criteria will be unique also. Your argument seems to suggest that all tax laws everywhere should be exactly the same in order to be fair, regardless of which state you live in (which is not automatically a bad argument, but the important factors there have nothing to do with credits or homeschooling).

For your military example, the fact that the military requires some particular standardized level of scholastic achievement also has nothing to do with tax credits or the definition of homeschooling. The lack of documentation outlining the requirements is a concern, and indicates that it was poor communication on their part rather than incomplete research on your part. But it still has nothing to do with the definition of homeschooling, but rather the fact that the military’s enrollment requirements are not as clear and/or specific as they should be. Note that this is already happening despite the fact that the IRS has not defined homeschooling. The solution is not to avoid defining homeschooling, but to elaborate on or change the military enrollment criteria.

Let’s say Common Core does become the standard (I am familiar with the concept of Common Core, but not the specific requirements). Assuming that’s a legitimate system, which it may be if states get to voluntarily sign up to use it or not, then why would it be a problem? Wouldn’t this provide the uniformity and equality that you think would be necessary to keep things fair with respect to tax credits?

Finally, the $5k tax credit is, as you say, an educational tax credit, and not merely one for homeschoolers (which does discount my point about encouraging more homeschooling, but also seems to sideline a whole lot of the previous argument here). It is basically a deduction for school supplies, which seems much more widely justifiable than a generic $5k credit for homeschooling—though I would be in favor of both. I know that my parents, as homeschoolers, had to pay for a lot of stuff for me and my two brothers as they taught us all the way through high school. I also know that they didn’t get any property tax discounts just because we weren’t utilizing the local public schools; they still had to subsidize public education while paying out-of-pocket for our own. Going back to my original point, this tax credit would simply allow people to keep more of their own earned income. As such, and as long as it is not accompanied by subsequent limitations or offsets in other areas, this is a very good thing, even if the ultimate goal is to eliminate income tax.


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