Reason – October 2018

embraced unschooling. “When our

focus was based less on the curriculum

and became centered around what the

kids wanted to learn about, everything

changed,” she explains. “I saw them take

ownership of their learning and, more

importantly, their life. They lead a very

rich life, full of curiosity.”

It can be difficult to take the leap from

controlling a child’s education to creat-

ing the conditions for self-education.

But more parents seem to be trying. One

in five homeschoolers surveyed by the

National Center for Education Statistics

in 2016 indicated that they “always” or

“mostly” use informal learning practices,

up from 13 percent in 2012. Some accept

help from local self-directed learning

centers and “unschooling schools.” Mil-

lions of children now participate in online

learning resources, including free options

like Khan Academy, MIT OpenCourse-

Ware, and Lynda.com, which is available

through many public library networks.

The Open School in Orange County,

California, is one such organization that

makes unschooling ideals accessible to

more families. Modeled after the Sud-

bury Valley School in Massachusetts,

which celebrates its 50th anniversary in

2018, The Open School has no set curric-

ulum, no grades, and no testing. Young

people from 5 to 18 learn together in a

multi-age setting where they’re free to

explore or seek help from adult mentors

when needed. All members of the school

community, adults and children alike,

have equal input in establishing and

executing policies and procedures.

“Some people think that self-directed

education, or ‘kids doing whatever they

want,’ means zero responsibility,” says

Open School educator Aaron Browder.

“In fact, the opposite is true. Kids in

conventional educational [settings]

have very little responsibility, because

ultimately the school, the teacher, or the

curriculum designer is given credit for

kids’ success or failure. In self-directed

education, the learner is making all

the decisions, so they get all the credit

for their own success or failure. That is

responsibility.”

K ERRY M CDO NALD is an education polic y writer

and author of the forthcoming book Unschooled:

Raising Curious, Well-Educated Children Outside

the Conventional Classroom (Chicago Review

Press).

records “are no different from the many

other kinds of business records the Gov-

ernment has a lawful right to obtain by

compulsory process.”

Gorsuch, by contrast, dissented

because he favors “a more traditional

Fourth Amendment approach” that asks

“if a house, paper or effect was yours under

law.” Cellphone records, he observed,

“could qualify as [your] papers” for Fourth

Amendment purposes.

But because that argument was not

raised by the litigants, Gorsuch felt he

had no choice but to advance his position

via dissent. He then used his opinion to

invite future litigants to make arguments

grounded in the amendment’s “original

understanding,” a development that could

prove very unfriendly to the wishes of law

enforcement.

Of course, Gorsuch had his share of

clashes with the liberal bloc too.

Consider Epic Systems Corporation v.

Lewis. Here’s how Gorsuch summarized

the case: “Should employees and employ-

ers be allowed to agree that any disputes

between them will resolve through one-

on-one arbitration? Or should employees

always be permitted to bring their claims

in class or collective actions, no matter

what they agreed with their employers?”

Gorsuch’s 5–4 opinion held that employ-

ees and employers have the legal right to

make contracts that include one-on-one

arbitration. He was joined by Chief Jus-

tice John Roberts and Justices Kennedy,

Thomas, and Alito.

Writing in dissent, Justice Ruth Bader

Ginsburg argued that the best reading of

applicable federal law was that “employ-

ees must have the capacity to act collec-

tively in order to match their employers’

clout in setting terms and conditions of

employment.”

Upping the rhetorical ante, Ginsburg

then accused Gorsuch of seeking to resur-

rect the Supreme Court’s “Lochner-era

contractual ‘liberty’ decisions.” She was

referring to Lochner v. New York, a 1905

ruling that invalidated a state economic

regulation on the grounds that it served

no legitimate public health or safety pur-

pose. For a jurist like Ginsburg, Lochner is

a dirty word; she even favorably cited the

late conservative legal thinker Robert

Bork, who attacked Lochner as “the sym-

bol, indeed the quintessence of judicial

usurpation of power.”

Gorsuch responded directly to this

critique, writing that “instead of overrid-

ing Congress’s policy judgments, today’s

decision seeks to honor them. This much

the dissent surely knows. Shortly after

invoking the specter of Lochner, it turns

around and criticizes the Court for trying

too hard to abide the Arbitration Act’s

‘liberal federal policy favoring arbitra-

tion agreements.’”

As for Ginsburg playing the Bork card

against him, Gorsuch responded in kind,

citing the liberal legal thinker Laurence

Tribe, who wrote that “‘Lochnerizing’

has become so much an epithet that

the very use of the label may obscure

attempts at understanding.” In judicial

circles, that’s what you call a sick burn.

DAMON ROOT is a senior editor at Reason

and the author of Ove rruled: The Long War for

Control of the U. S. Supre me Cour t (Palgrave

Macmillan).

Illustration: Eugene Valter/iStock REASON 7