An Analysis of the Legitimacy of Home Schooling and an Exploration of Its Path to Legalization in China

: With the continuous development and innovation of domestic education, the fervor of “home schooling” in China has been increasing in recent years, and the issue of the legality of “home schooling” has received more and more attention. This paper briefly summarizes the social situation of “home schooling” in contemporary China and explores attitudes towards the “home schooling” phenomenon in the current Chinese education system.In the face of the denial of the legitimacy of home schooling in China’s educational environment, the paper analyzes the relationship between home schooling and various laws and regulations under China’s current legal and regulatory system, as well as the possibility of its future legitimacy. By focusing on the relationship between “home schooling” and the constitutional right and obligation to education, and analyzing and studying the legalization process of “home schooling” in the United States and other countries, the study provides some feasible solutions for the future legalization of “home schooling” in China. By focusing on the relationship between “home schooling” and the constitutional right and duty of education, the study and analysis of the legalization process of “home schooling” by the United States and other countries will provide some feasible suggestions for the future legalization of “home schooling” in China, with a view to facilitating the further developing of China’s education.


Introduction
Since 2006, when the writer Zheng Yuanjie educated his son Zheng Yaqi at home, the educational method of "home schooling" has gradually come into the public eye in China, and has attracted the attention of more and more parents.Contrary to traditional beliefs, so-called "home schooling" is not allowed at the "compulsory education" stage, when children of school age are supposed to attend school, and public opinion is not satisfied with this so-called "home schooling" when children are educated at home or sent to "private schools" and other unauthorized places for education.Public opinion on this so-called "home-schooling" model of education has been mixed, and the reaction of the relevant regional administrations to it has also varied.
"Home schooling" refers to educational activities that take place in the home as the main place of education, and are usually organized by parents or home teachers rather than school teachers, and includes various forms such as parent-teaching, small-scale private academies, and micro-schools.According to a 2017 research report on "Home Schooling in China" published by the 21st Century Research Institute, the number of people choosing home schooling in China grew from 2,000 to 6,000 in 2017 compared to 2013, with an annual growth rate of about 30 percent.Although the number of people is increasing, there is no legal authorization for home schooling in China.According to the existing legal and regulatory framework of the People's Republic of China, it is worth examining whether "home schooling" has a relevant legal basis and whether it violates the relevant provisions of the "right to education" of the Constitution.From the perspective of relevant laws and regulations in China, this paper is intended to analyze the legal theory of the right and obligation of education involved in "home schooling", and to demonstrate the legal possibilities of "home schooling", and at the same time to put forward suggestions to deal with the relevant issues as far as possible.

Current Social Situation of "Home Schooling"
In recent years, a number of organizations related to "home schooling" have gradually come into the public eye, such as Beijing's Rizhixin School and Guangzhou's June Primary School, which have gradually formed some characteristic phenomena.In terms of geographical distribution, the main target groups of Chinese home schooling organizations are found in first-tier Chinese cities such as Shanghai, Beijing, Shenzhen and Guangzhou.In terms of education, most of the parents who choose to home-school their kids have a high level of education, while a small number of parents have a low level of education.In terms of economic conditions, the incomes of families choosing home schooling are polarized, with most families having higher incomes and a few having lower incomes.In terms of teaching philosophy, there are also different characteristics.Some families focus on traditional Chinese cultural education and send their children to institutions such as academies where they can receive more traditional and national knowledge; some other families learn from the "home schooling" model of the US and other nations to educate their children [1].The reasons why families in China choose to "home-school" their children vary, and can be summarized as follows.
First of all, parents are dissatisfied with the current school education, which is one of the most important reasons why many families give up letting their children receive education in schools.Because of China's large population base, a huge amount of school-age children need to be educated every year, and at the same time, educational resources are limited, so the current teaching method in most schools is based on large class teaching, curriculum progression, depth of learning, etc. need to take into account the overall level of the students, and therefore there must be some students think that the teaching progress is too fast or too slow and other problems.At the same time, large-class teaching makes it impossible for teachers to have a detailed understanding of each student, so for some special students, they may need more targeted teaching and care from teachers, for whom receiving education at school is boring and difficult.
Secondly, the educational choice of "home schooling" is closely related to the parents' educational background and family conditions.Regardless of the educational philosophy of "home schooling", it undoubtedly requires extra efforts and money from parents.For those with higher family income levels and parents who are well educated, having their children "home schooled" may result in faster growth.In addition, low-income families may choose to 'home-school' because it is too expensive for them to enrol their children in school and because parents' acceptance of compulsory education is limited by their level of knowledge.This paper will not discuss these cases, but will focus on the first group of home schoolers with higher family incomes [2].
It is true that the popularity of "home schooling" continues to grow, but in terms of law, is there any relevant basis to support or refute it?Now This paper will analyze the existing laws and regulations related to "home schooling" one by one and put forward a rationalization proposal on its feasibility in the future.The following will analyze the existing laws and regulations related to "home schooling" one by one and make reasonable suggestions for its future feasibility.

Jurisprudential Analysis of Home Schooling
In contrast to the US and other European countries, where the phenomenon of "home schooling" has gone through a process of transformation from illegitimate to legitimate, the legality of "home schooling" has not yet been confirmed by China's relevant laws and regulations.However, there are still some legal analyses that can be discussed.
There are currently three theories in the academic community regarding the legality of "home schooling", one of which is that it is unlawful, primarily because it violates the Compulsory Education Act.; the second is that it is not illegal; and the third is that it is formally illegal, but substantively so, and that they should be allowed to try it out.
Whether the provisions of the Compulsory Education Act can have legal effect also depends on whether they are in conformity with the provisions of the Basic Law.The Constitution, as the basic law of the land, is the basis on which any law should be enacted and must not contradict it.Therefore, to clarify the legality of home schooling, it is also necessary to resort to the meaning of the right and duty to education as stipulated in the Constitution [3].
Some scholars have pointed out that the key to determining whether or not "home schooling" is legal lies in the understanding of "enrollment".The essence behind these two legal interpretations is a different understanding of the rights and interests of education.Drawing on the German definition of the attributes of fundamental rights of citizens, we can make a basic analysis of the attributes of the right to "home schooling".On the one hand, the right to home schooling, as an essential element of the freedom to education, is a subjective citizen's right; on the other hand, the freedom to home schooling, as a constitutional right, can be expressed in the form of the citizen's right to freedom and social right.Analyzing and clarifying whether the right to education is a freedom right or a society civil right may lead to a clearer understanding of the issue of "home schooling" [4].

"Home Schooling" and the Constitutional Right to Education
All citizens are subject to the right to education enshrined in our Constitution, according to the content of Article 46.It is worth pondering what kind of right is the right to education enjoyed by citizens in the constitutional sense.Does it refer to the right of citizens to freely pursue personal education in order to obtain personal ideological upgrading and self-realization, thus realizing the right to personal dignity, i.e. a negatively benefited right to freedom, or does it refer to the right of citizens to request the state to provide certain educational opportunities and educational facilities, i.e. a positively benefited social right?If the citizen's right to education is more of a freedom right, then it is necessary to respect the citizen's right to free development, and respect the citizen's free choice of the content and mode of education; If the right of citizens to receive education is more of a social right, then the reciprocal need for citizens to fulfil their social responsibilities and accept the education provided by the state is greater.By analyzing the liberty right and the social right, we can perhaps give some thoughts on whether "home schooling" is in line with constitutional norms.
Social rights and rights of freedom are divided based on the positive and negative actions of the relative of the realization of the right; social rights tend to protect the interests of the right holder by creating obligations on others; while rights of freedom are determinative rights to protect the interests of the right holder, which is a higher level of interest protection than social rights.
Next, this paper will analyse in turn the attributes of the freedom right and the social rights of the "home schooling" right.

Liberal Attributes of the Right to "Home Schooling"
The free attribute of the right to "home schooling" represents the holder's right to passive defence, which belongs to the private sphere of the citizen, not subject to interference by the state power, and is above all a manifestation of the subject's right to exercise his autonomy.The phenomenon of "home schooling" is a manifestation of citizens' demand for diversified forms of learning, which is also a manifestation of the continuous economic development and social progress of China.The market form of resource allocation emerged with the establishment of China's market economic system, accelerate the supply-side structural reform, promote the diversification of the main body of the education supply, the formation of different forms of education, including network education, social education, corporate education, international education and other forms of education, the formation of a substantial impact on the public education system.And the social development level of individual knowledge index requirements, also prompted individuals to seek more educational paths to learn, in order to meet their occupational needs, and individual value realization needs, so that the education market and the main body of learning to achieve consistency.As a form of education for citizens to realize their self-development in accordance with the market demand, "home schooling" should be given greater tolerance by the state.How citizens exercise their right to education is a matter of choice that the state should support, from the perspective of the right to liberty [5].

The Social Dimension of the Right to "Home Schooling"
Although the right to "home schooling" is characterized by private interests and autonomy, it is an important component of the Right to Basic Education for compulsory school-age children and is in line with the character of basic education as a social benefit for citizens.The famous Norwegian human rights scholar A. Eide (A.ED) said: "The State has at least three kinds of duties, namely the duties to respect, to protect and to fulfil.The obligation to respect requires the government to abstain from interfering with the enjoyment of social rights; the obligation to protect requires the state to prevent third parties from violating these rights; and the obligation to fulfil requires the state to take appropriate legislative, administrative, budgetary, judicial and other measures to ensure the full realization of these rights".[6] As a social right, the right to "home schooling" is not only a political or moral obligation of the State, but also a legal obligation, and the State power is required to progressively legalize and formalize the right to "home schooling" through legislative, judicial and administrative means, in order to provide for the full realization of the right to "home schooling".It is also essential for the State to progressively legalize and formalize the right to home education by legislative, judicial and administrative means, in order to establish "institutional guarantees" for the right to home education.

"Home Schooling" and the Constitutional Duty to Educate
Education, as a legal obligation of citizens, is compulsory, i.e., citizens are obliged to receive education.From the viewpoint of the relationship between citizens' obligation to receive education and their rights, citizens' obligation to receive education actually originates from the right to receive education.Precisely because the Constitution grants citizens the right to be educated, they ought to accept the obligation to be educated.Therefore, the obligation of citizens to be educated should be used to guarantee the right to education.From this perspective, since the right to freedom and social rights in the educational right leave room for "home schooling" to be considered, "home schooling" is a way of fulfilling the educational duty from the point of view of the educational duty.

4.
Current Norms Relating to "Home Schooling"

Is Home Schooling Currently Legal in China
At present, China's existing laws and regulations haven't clearly define whether "home schooling" is legal, but in 2017, the Ministry of Education issued a "Notice from the General Directorate of the Ministry of Education on the good performance of compulsory school enrolment and admission work in 2017", which was the first time explicitly put forward the "counties (cities) and districts education administrative departments in addition to strengthening the monitoring of traditional dropout control focus groups should be highly concerned about students receiving education from social training institutions such as "private schools" and "Bible reading classes".In addition to strengthening the monitoring of traditional dropout control focus groups, the education administration department of each county (city, district) should pay great attention to students who receive education from social training institutions such as "private schools" and "Bible reading classes".If children and adolescents of school age are not registered for compulsory education according to the relevant provisions of the Law on compulsory education, schools and educational departments shall immediately implement the responsibility of encouraging the return of, registering and notifying in writing those students who have dropped out of school."From this perspective, although documents issued by the Ministry of Education have a different effect than laws and regulations, in the context of China's situation, "home schooling" is currently an illegal practice in China.

Possible Legal Sources of "Home Schooling" in China
Although the legality of "home schooling" has not yet been confirmed by clear laws and regulations, "from a legal point of view, only what is prohibited by law is forbidden to citizens, and what is not prohibited by law can be done by citizens.This is a characteristic of the rights of citizens".Therefore, the actual legal source of the right to "home schooling" can start from the opposite direction, i.e., the entry point of "prohibited by law", and the author will analyze the possible legal sources of China's "home schooling" in turn.In the following, I will analyze in turn the possible legal sources of "home schooling" in China [7].

The Constitution and "Home Schooling"
The right to education and the right of citizens to receive education are enshrined in the Constitution as the basic law of the land.The provisions of our Constitution on the right and obligation to education are set out in Article 46, which states: "Citizens of the People's Republic of China have the right and duty to obtain an education.The State promotes the comprehensive development of adolescents, youths and children in terms of morality, intelligence and physical fitness.Article 47 of the Constitution reads: "The State shall encourage and support citizens engaged in education, science, technology, literature, art and other cultural endeavours in their creative work for the benefit of the people".This provision recognizes the freedom of parents to educate their children.These legal provisions set the tone for home schooling by laying the foundations for the right of citizens to education.The Constitution does not explicitly define the right to education, and it is this broad definition that allows for the expansion of the ways in which education can be received to include education at school, at home and through the Internet.At the same time, article 47 of the Constitution encourages creative work on education and provides a possible basis for the realization of "home schooling".

Compulsory Education Law and "Home Schooling"
China promulgated the Law on Compulsory Education of the People's Republic of China for the first time in 1986, providing the most direct legal basis for citizens to safeguard their right to education.Article 5 states: "The people's government at all the levels and its competent departments shall carry out the tasks stipulated in this Law and guarantee the right of children and adolescents of school age to receive compulsory education.The parents or legal guardians of school-age children and adolescents shall, in accordance with the law, ensure that they are enrolled in school on time to receive and finish compulsory education".Article 11 stipulates: "When a child reaches the age of six, his parents or other legal guardians shall send him to school to receive and complete his compulsory education; for children in regions where conditions are not favourable, this may be deferred until they reach the age of seven.If a child or adolescent of school age needs to postpone enrolment or take a break from school due to his or her physical condition, his or her parents or other legal guardians shall submit an application to be approved by the people's government of the local township or the administrative department of education of the people's government at the level".In addition, the Compulsory Education Law also stipulates the legal responsibility of parents for failing to comply with this obligation.Article 58 states: "If the parent or other legal guardian of a school-age child or adolescent fails to send the child or adolescent to school to receive compulsory education in accordance with the provisions of this law without justifiable reasons, the local township people's government or the administrative department of education of the people's government at the county level shall give them a critical explanation and order them to make corrections within a specified period of time.".It can be seen that the Compulsory Education Law of the People's Republic of China on the Compulsory Education of Children to Receive Education sets out 'enrolment' requirements, but "enrollment" nature has not made a clear definition.Enrolment can be interpreted as "enrolment in a school", and can likewise be broadened to mean "entry into the learning process at the compulsory education stage", and from this point of view, "home schooling" has its own legitimacy.Under China's existing educational framework, the Compulsory Education Law and the various guidance documents issued by the State contain strict provisions on the educational policy and teaching of compulsory education, making "enrolling in school" very often equivalent to "entering a school".However, by analyzing the Compulsory Education Law, the author has found some support for the possibility of giving legitimacy to "home schooling".First of all, the Compulsory Education Law stipulates in Article 5(2) that "Parents or other guardians of school-age children and adolescents shall ensure, in conformity with the law, that they are enrolled in school in a timely manner in order to receive and receive their compulsory education", where the legislative terminology used is "shall" rather than "must", and "must" is "shall".The word "shall" provides the possibility of choosing whether or not to send a child to school to receive an education.The second support comes from Article 58: "If the legal guardians of school-age children or adolescents fail to send their school-age children or adolescents to school to receive compulsory education in accordance with the provisions of this Law without a valid reason, the township people's government or the county people's government shall give them a critical explanation and order them to make corrections within a certain period of time'.It can be inferred that the state will only hold parents or guardians accountable for failing to enrol children and adolescents of school age in compulsory education 'without a valid reason'.In other words, if parents have a valid reason, they should be able to choose not to have their children educated at school.

Law on the Protection of Minors and "Home Schooling"
The basic interest defended by the practice of "home education" is, in fact, the "rights and interests of the child", which should not be infringed upon by either the state or parents in the exercise of the child's right to education.In China, the rights and interests of the child are protected by the Law of the People's Republic of China on the Protection of Minors, which basically follows the relevant provisions of the Convention on the Rights of the Child.China ratified the Convention on the Rights of the Child in 1991, and Article 18 of the Convention on the Rights of the Child essentially reaffirms the Declaration of the Rights of the Child, which states that "those who have the responsibility for the upbringing and guidance of the child shall be guided by the principle of the best interests of the child.This responsibility rests first and foremost with the parents" and stipulates that "parents or, where appropriate, legal guardians have the primary responsibility for the upbringing and development of the child" China's Law on the Protection of Minors contained several basic principles for the safeguarding of children's rights: non-discrimination; ensuring the integrity of the child's right to life, survival and development; and respecting the views of the child.As China had ratified the Convention on the Rights of the Child, the principle of protecting the child's best interest should also be followed.

Marriage Law and "Home Schooling"
Article 23(1) of the Marriage Law of the People's Republic of China states that " the parents have the right and duty to protect and educate their minor children".This refers to the parents' right to choose their own education, and "home schooling" is not only related to the children's education, but also to the parents' right to education.Although "home schooling" is a matter of minors choosing their place of education, it can also reflect the game between the parents' law of education and the state's law of education, and is a typical manifestation of the parents' right to choose education.Since the Marriage Law stipulates the parents' right to education, parents have the rights to choose the way their children are educated, which also provides some space for "home schooling" to be legal [8].

5.
Reflections and Suggestions on the Path to Legalization of "Home Schooling" in China "Home schooling has not been illegal since its inception.At present, many countries have established legal systems related to "home schooling", which can provide some reference for the possible legalization of "home schooling" in the future in mainland China.

A Brief Analysis of the Path to Legalization of "Home Schooling" in the United States
Until the 1970s, home schooling was considered illegal in most U.S. states and was resisted by public authorities.The first time the U.S. judiciary addressed the issue of home schooling was in 1893, when the Massachusetts Supreme Court emphasized in Common Wealth v. Robert that all children should be educated, but not in one way [9].In other words, there can be a variety of ways of education, which to a certain extent implicitly recognizes the legality of "home schooling".Since then, American society has gone through a long process of development to make "home schooling" legally legalized.
In terms of legalization of home schooling in each state, in the United States, from the 20th century onwards, home schooling has been legalized in all states, including the United States.It took nearly 30 years for some states to pass laws in the 1980s and for all states to legalize "home schooling" by 2009 [10].

Suggestions on the Path to Legalization of "Home Schooling" in China
Looking at the reality, China's "home schooling" has already shown a tendency towards legalisation.Due to the strict restrictions on schooling under the current compulsory education law, we can start from different aspects and provide a reference for the legalisation of "home schooling" from different angles.

Emancipate the Mind and Change the Mindset
In order to promote the legalization of "home schooling", a change in the general mindset of the people in China's broader environment is needed.The diversified development of modern society and the increasing improvement of material and cultural conditions can provide a good social foundation for the legalization of home schooling, and also create favorable conditions for the emancipation of ideas and the conversion of concepts.With reference to the development of home schooling in the United States, it has gone through a process from illegitimacy to legitimacy and recognition by the public.The social recognition of home school education reflects, on the one hand, the respect for personal interests in the tolerant and free social environment of the United States and, on the other hand, the significant change in the concept of compulsory education, i.e., this respect is based on the changed concept of compulsory education.In recent years, with the popularization and development of compulsory education and the extension of its duration, more emphasis has been placed on the realization of children's right to education from the point of view that it is their inherent right, under which conditions more space can be provided for the legalization of "home schooling" [11].

Improvement of Legislation, Checking for Gaps
At present, China's education-related laws are mainly supported by the Compulsory Education Law, and there is no law to support "home schooling".The Compulsory Education Law focuses unilaterally on the responsibility of parents to ensure that their children receive compulsory education, but neglects the right of parents to participate in and choose the kind of education their children receive.As education develops and diversifies, the relevant legal system should also be enriched and improved, so as to respect the right of every member of society to choose education and to meet his or her different needs for education.

Deepening the Reform of the Education System
China is currently in the process of implementing basic education reform, which covers many levels and systems of education.In the face of "home schooling" and other modes of schooling that are different from schooling, the relevant governmental organizations can issue appropriate policies and documents on how to manage students who choose to "home school," and how to ensure that the level of education they receive is above a certain threshold, and how to help them better integrate into the school community so as not to become disengaged from society, are all areas that can be reformed and developed.How to manage students who choose to "home-school", how to ensure that their level of education is above a certain bottom line, and how to help them better integrate into the school community so as not to be disengaged from society are all areas that can be reformed and developed.

Increased Awareness of Parental Involvement in Education and Increased Interaction
By analyzing the "home schooling" education model in the United States and the situation of some families in China who choose to let their children receive education at home, we can see that parents play an important role in their children's education.Unlike the traditional concept of "sending children to school and leaving them in the hands of teachers", the "home schooling" model requires more guidance and cooperation from parents.Currently, Chinese schools and teachers do most of the work of educating students, and rarely communicate with their parents.Parents can take the initiative to understand the progress of the school's educational work, understand the school's management mode, and play their own roles and strengths appropriately [12].Schools can also fully understand the views of parents before making relevant decisions and implementing them together with parents.When parents have a better understanding of the development of education, there will be a greater possibility for the development of "home schooling".
The development of a new thing always has to go through a long process, and the legalization of "home schooling" also has a long road to explore.Although the current environment in China does not allow home schooling, the road is long and we can still find more new directions in continuous exploration and research.

Conclusion
As a new form of education, "home schooling" meets the educational needs of some groups, and "home schooling" can demonstrate some advantages that are not found in the traditional education model.Therefore, it is not appropriate for China to take an attitude of avoiding or resisting the issue of whether "home schooling" is legal or not at the legal level, but it is more appropriate to explore what groups "home schooling" is suitable for in the new era through improving the law, revising the system and other ways, how to make China's "home schooling" legal at the legal level, how to make China's "home schooling" legal and how to make China's "home schooling" legal.Instead, it is more appropriate to explore what groups are suitable for "home schooling" in the new era by improving laws and modifying systems, how to legalize "home schooling" in China, and how to regulate and restrict it through the formulation of legal norms, so as to promote the development of China's education cause.In this paper, we compare and analyze "home schooling" with the existing laws from the perspective of reality, and put forward some personal opinions on how to realize the legalization of "home schooling" in China in the future.The road to legalization of "home schooling" can never be achieved only by changing one aspect, it needs to reach a unification of national policies and citizens' thoughts before it can be truly legalized.In the face of a fast-paced society that is constantly evolving, the legalization of home schooling in China has become a general trend.The United States and other Western countries have legalized "home schooling" before us, and we believe that in the near future, China's education will continue to progress, and through different educational methods and pathways, a new generation of aspiring young people will be nurtured to open up new territories and build up the country.