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Thoughts on the California Home Schooling Decision

By Justin Bathon

Mark Walsh and Mitchell Rubinstein have already posted that the California Appellate Court has reversed itself on the homeschooling decision that has received so much attention this past year.Here is the opinion. There were 16 amicus briefs, including, as my friend Scott Bauries pointed out to me, some heavy hitting constitutional law scholars.

This case strikes at the core of the government's power to educate. It asks a few basic questions and I will attempt to give what I view as this court's answer to those questions:

(1) Can the government compel attendance at schools, even if parents object?

Absolutely YES. From the court's mouth: "no such absolute right to home school exists ... parents possess a constitutional liberty interest in directing the education of their children, but the right must yield to state interests in certain circumstances." (35). The Court said that courts, as agents of the government, can stand in loco parentis and make decisions for children against the will of parents if the government deems it in the best interest of the child.

The power of the State outweighs that of the parent. Period.

(2) What are the parent's rights in educating their child? 

In this court's opinion, parents have a liberty interest in directing their child's education. Thus, in order for the state to overrule the parent's wishes, there must be a compelling interest and the action must be narrowly tailored. What exactly meets that standard is a factual, case-by-case issue (see next question), but if a government's action against parents is compelling and narrowly tailored, the liberty right is overruled by the government's interest, ala Question 1 above. 

(3) At what point do we deem parents to be acting against the best interest of the children ...

This is the compelling interest/narrowly tailored question. That point apparently can be reached when the child's safety is in question, as it was in this case, because the Supreme Court expressly said so in Yoder: [the government may overrule] if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens" (234). The health or safety question here is fact specific, but I generally know what that means. If parents are abusive, their liberty rights as parents can be taken away by the state. However, that second part of the Yoder quote is substantially more confusing and harder to interpret. Significant social burdens as a compelling interest? What if the kid doesn't perform well on standardized tests? Is that a significant social burden? That is a much harder question and one that is not answered in this case ... or really any other educational law case of substance, but one that clearly needs to be addressed more substantively as the homeschooling policies in Colorado, New York, Florida and Maryland, where homeschooling rights can be terminated based on test scores, seem to be basing their compelling interest on this second phrase in Yoder. As Mitchell said in his post, legal commentary, particularly on this aspect, would be most welcome.  

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Overall, I don't like the ruling of the Court in this case. Not because they reached the wrong outcome, I agree with the outcome, but in reaching the outcome they almost explicitly stated that they are overruling an existing statute based on traditional practices within the state and not on any legal precedent. They changed the law in this case based on their feelings (and substantially stretching legal precedent) and that is a practice best left to legislatures or at least State or Federal Supreme Courts. 

Private schools are different from home schooling. Private schools have reporting, testing, certification, inspection and other requirements that home schooling does not have. Furthermore, the private tutor exception clearly stated the person should have a teaching credential for the grades taught. Legally, neither of these exceptions permit homeschooling, I don't care what the traditional practices or current legislative intent is. This case was wrongly decided, no question about it in my mind. But, clearly, the Court also reached the right outcome. 

Now, as bad as I think this opinion is, I don't think it will be overruled by the California Supreme Court. The Appellate Court got the right outcome here and everyone knows it. The fact that they did so in a messy and nearly illegal manner is regrettable, but can be overlooked. The best outcome here is for the California Legislature to act quickly to permit a home school exception to the compulsory attendance law so that the California Supreme Court can moot this case, while overruling the Appellate decision. Short of that, I don't see the California Supreme Court taking this case if they can avoid it.

It was a great case though and really got at some of the fundamental questions of education in our democracy. I encourage you to read it and use it in your educational law classes. 

Full post as published by Edjurist on August 12, 2008 (boomark / email).