Bulletin #16 States' Rights 12/14/2003


Did you know: HR2732 and SB1562 and similar legislation is not only a homeschooling issue - it is a threat to States' rights.


Contrary to popular belief, the United States Constitution does not allow the federal government to regulate education of any kind. The tenth amendment to the Constitution plainly states: "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." In other words, if it is not clearly specified in the Constitution that the United States government has the power to do something, and as long as the Constitution does not prohibit the states from utilizing that power, then that power is left up to the States and to the people alone. The Constitution does not specify that the United States government has any power to regulate education of any kind. Consequently, the power to regulate education is left to the States and to the people.

The fact is that there are many federal laws attempting to regulate education. However, the primary means that the federal government uses to regulate education is through its power enumerated in the Commerce Clause of the Constitution. The courts have interpreted the Constitution to allow the federal government to give money to the states. So, the federal government, through Congress, adopts a law that, in essence, says, "If states adopt a law that provides for all of the things listed in this federal law, then, only under those conditions, the federal government will give the states money." The states, in turn, wanting the federal money, adopt laws that mirror the federal law. This is how the No Child Left Behind legislation works. Through the years, this practice has become so commonplace that often the distinction between the authority of the federal government to regulate and the authority of the state government to regulate is blurred sometimes to extinction. People forget that the states have a perfect right to say "no thanks" to the federal law and it purse strings, and sadly most states don't do this because the financial gain is so enticing. In fact, your state can reject the mandates of NCLB if it so desires. There are individual school districts in CT and VT who have done just that! It is also important to note that while Congress may adopt whatever laws it chooses, not all of those laws are constitutional. Far too many of them are not constitutional. However, until and unless the constitutionality of those laws is challenged, they remain in force.


When congress considers or passes laws regarding homeschooling, they are usurping State's rights. Homeschoolers do not accept federal or state funding so they cannot be regulated through the Commerce Clause. This gives the government no basis whatsoever to legislate homeschoolers - even if it is to include them or exclude them from current law. State legislators need to be made aware of the instances where the federal government is encroaching on States' rights. Legislation like HR2732 must be brought to the attention of your state legislators so that they can also speak to their state congressional delegates and make them aware of the problem. State legislators will want to protect their state's rights under the US Constitution, when congressional delegates may not be paying attention.

Education is an issue more properly left to the states and to the people, not to the federal government. It is not only important for you to speak to your congressional representatives, but it is equally important for you to let your state legislators know how you feel about legislation like HR2732.


Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense. www.nheld.com or email : info@nheld.com

Judy Aron - Director of Research, NHELD imjfaron@sbcglobal.net