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Monday 26 October 2020

Is Forced School Unconstitutional?

Most of us usually take it for granted that kids have to go to school. And that they can be forced to under the authority of the law. But should we accept that? 

In fact, might it be unconstitutional to force kids to go to school? 

My totally unofficial* non-legal legal analysis is that theoretically, in some situations, compulsory school might be unconstitutional. 

First, what is "compulsory school?" 

I'm referring to forced schooling, aka mandatory school attendance, which is enforced by police, usually under the authority of truancy laws. 

Here's my explanation of one legal argument: 

It's a basic principle of our constitution and society that people have liberty -- that generally, the government can't force people to do things they don't want to do. And that the government can't just randomly lock people up for no reason. 


Sometimes the government does lock people up (prison), and sometimes people have to do things they might not want to do (wear seatbelts, go to school, etc.). 


Because, according to the Supreme Court, when the government's "interests" or reasons for doing something outweigh the individual person's interest in liberty, it is valid under the Constitution. 

So, for example, courts usually agree that the government's reasons for putting a serial killer in prison outweigh the serial killer's interest in being free. 

This is called a "balancing test." The equation looks kind of like this: 

government interests > deprivation of liberty = constitutional 


government interests < deprivation of liberty = unconstitutional 

One of the big things that courts consider is whether there is another, less restrictive way to achieve the government's interest. 

So, for example, say that in order to ban hate speech, the government makes a law that says no one can talk or write about other groups of people. That's clearly way too restrictive. You could just say "no hate speech." That's a less restrictive alternative. 

So, what does this all have to do with school? 

Well, let's look at the balancing test again: 

government interests vs. deprivation of liberty = ? 

The government has lots of reasons for wanting kids to be in school (preparing them to be citizens, preparation for the workforce, social equality, babysitting, etc.). 

But the deprivation of liberty -- spending 15,000 hours over 13 years doing mostly mindless work in constraining environments -- is pretty big. Add to that the fact that many students suffer serious emotional and psychological harm from schooling. And the fact that many students -- especially in poor school districts -- don't even learn to read after 13 years of school. And the fact that education can be accomplished in other, less restrictive ways (homeschooling, unschooling, democratic schools, etc.). 

Considering all these factors, it starts to look like the deprivation of liberty might be greater than the government's interests. 

If a court agreed, they could find that it would be a violation of a youth's constitutional rights to force them to attend a restrictive school. 

And, btw, I didn't make this all up. A federal court laid out the argument in this case about public schools in Detroit, although they didn't decide the issue of compulsory schooling then (although they did find a fundamental right to education, which is a big deal). 

So, tl;dr, compulsory school might be unconstitutional in some situations. 

*Disclaimer: This is not legal advice. Please speak with a lawyer before you take any sort of legal action or refuse to go to school. 

1 comment:

  1. It's totally illegal. Everything about school is illegal.