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    Video Games, Home Education, and the US Supreme Court

    July 1, 2011 by Brandy Vencel

    How’s that for a title? Apparently, I’m feeling very ambitious today, but I blame my Monday post for getting me thinking. Isn’t that what we do around here? Think about things after other people have already thought them?


    Last night, while my husband was working, I found myself pondering my ceiling. When I got bored with that, I started thinking about what I’ve heard termed the third wave of homeschool persecution. Some friends of ours came home from a conference with a copy of an extensive paper on the idea, and I wonder if that podcast I linked to is the same thing? I don’t know.

    Anyhow, the general idea is that the first two waves of persecution were based upon false “facts” about homeschooling–that homeschoolers weren’t really educating their children, or capable of educating their children, and so on. I am sure you’ve come across these fallacies; I know I have.

    One of my favorites is the socialization fallacy where people worry that my children aren’t with other children for the majority of the hours of their day.

    If I were Dr. Phil, I suppose the appropriate response would be, “Yeah. So…how’s that workin’ out for ya?”


    The supposed third wave of homeschooling persecution, then, is a direct, frontal assault based upon the truth. We parents dare to hand our beliefs down to our children as a legacy, and our beliefs are “dangerous” and unacceptable (such as the belief in an absolute truth which is actually knowable, or the belief that homosexuality is wrong because it is a violation of the natural created order), therefore we shouldn’t be allowed to spend so much time with our children, and they definitely should be put in public schools so that the public schools have time to undo our teaching.

    Private schoolers better be listening here, becayse the dirty little secret is that your schools are likely an extension of your beliefs and values, and therefore your rights to educate your children privately are also in danger.

    This says a lot about the possible purpose of public schools, but I digress.

    My point in bringing all of this up is to direct your attention to the possible advantage gained by the home team {being us, in case you were wondering} as a result of the new Supreme Court ruling. The interesting thing to me is that our parental rights are actually upheld by both the opinion of the Court and at least one of the dissenting opinions.

    Let me explain.

    In the opinion of the Court, Justice Scalia writes:

    …disgust is not a valid basis for restricting expression. {p, 11}

    Personally, I see this proposed opposition to home education through, among other things, a free speech lens, because it proposes to remove children from their homes for many hours every day, for the express purpose of preventing certain types or quantity of conversations from taking place between the parents and their children. They are a deliberate desire to forbid the transmission of ideas, and as such, this falls into a First Amendment discussion, does it not?

    Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. R. A. V, 505 U. S., at 395. The State must specifically identify an “actual problem” in need of solving, Playboy, 529 U. S., at 822–823, and the curtailment of free speech must be actually necessary to the solution, see R. A. V., supra, at 395. That is a demanding standard. “It is rare that a regulation restricting speech because of its content will ever be permissible.” Playboy, supra, at 818. {p. 11-12}

    Scalia goes on to say that the State would have to prove a “direct causal link” to an actual outcome, something that cannot be done.

    In addition, the Court’s opinion sided with parental authority in restricting the right of the State to limit speech directed at minor children because the State could not prove that they were helping parents achieve their goals in regard to their own children.

    The Court acknowledged that the State has a right to prevent harm to children, but it writes:

    that does not include a free-floating power to restrict the ideas to which children may be exposed. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik at 213–214.

    I would think this is compelling enough. But we can take it further when we see that, in Justice Alito’s concurring judgment, we once again see the implicit assumption that it is the parents who have prerogative in regard to their children:

    If parents want their child to have a violent video game, the California law does not interfere with that parental prerogative. Instead, the California law reinforces parental decision making inexactly the same way as the New York statute upheld in Ginsberg. Under both laws, minors are prevented from purchasing certain materials; and under both laws, parents are free to supply their children with these items if that is their wish. {p. 61)

    I was further intrigued when I read Justice Thomas’ dissenting opinion, which reinforced parental rights even more so than the judgment itself: He is in favor of the California law, because it prohibits marketer from bypassing parents to speak with their children. Why? I’ll let him explain:

    In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents. McIntyre, supra, at 360. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors {or a corresponding right of minors to access speech} without going through the minors’ parents. Cf. Brief for Common Sense Media as Amicus Curiae 12–15. The founding generation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents. {pp. 39-40}

    In all, I see in that all of these arguments acknowledge parental authority, something the “third wave” of persecution is going to have a hard time getting around. It is natural for parents to be in authority over their children, and something acknowledge by both our laws and tradition.

    And this, my friends, is good news for those of us who choose alternative forms of education.

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    1 Comment

  • Reply Kelly July 2, 2011 at 4:22 pm

    Excellent post — and so nice to hear good news on the political front.

    I started to write a reply to something you metioned in passing, but it grew so long that I posted it on my blog instead:

    Hope y’all have a great weekend!

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