CaliforniaRepublic - Homeschooling in California by Joseph Knippenberg

Here’s what I can figure out on the basis of a quick reading of the materials. First, California law doesn’t make it easy to homeschool. There are four ways to accomplish this: qualifying your home as a private school, hiring a qualified (appropriately credentialed) tutor, or pursuing an "independent study program," using a public school curriculum (and subject to public school supervision) or using a private school curriculum (and subject to its supervision). Without knowing any better, I’d bet the fourth has been the option of choice, enabling families to homeschool by affiliating with an umbrella program that provides some curricular support, some (probably minimal) supervision, and testing facilities.

Second, in this case, a complaint was filed on behalf of the three youngest children in a family of eight (the oldest is 29), alleging "physical and emotional mistreatment" by the father. Upon investigation, the L.A. County Department of Children and Family Services discovered that the kids were being homeschooled. An attorney for the two youngest sought a court order requiring them to be enrolled in and actually attend a public or private school (that is, spend time in an educational setting outside the home). Despite the fact that the juvenile court judge regarded the education provided at home was "lousy," "meager," and "bad" (which might also describe some public school experiences), he found that there was a "constitutional right" to homeschool.

The appellate court rejected this right, upholding California’s compulsory schooling laws and interpreting them in such a way as essentially to invalidate the private school independent study programs that most families probably follow (asserting that they don’t provide adequate supervision of the parent educators).

The appellate panel also made short work of the parent’s assertion of a First Amendment right to homeschool their children, following from “sincerely held religious beliefs...based on Biblical teachings and principles.” Anyone could make such an assertion and escape state supervision. What’s needed is something more like a deep-seated and organized religious tradition, such as that found among the Old Order Amish in Yoder.

Now, this line of argument raises three sorts of interesting issues. First, there’s the complex of questions that arise out of attempts to accommodate relgious freedom in the face of generally applicable laws. Some justices we tend to like (e.g., Scalia) are very suspicious of free exercise exemptions. But I wonder whether free exercise means anything if it doesn’t permit some assertion of a right to be exempt from an otherwise generally applicable law. (And yes, I know that if I were a truly strict constructionist, I wouldn’t apply the First Amendment to the states. Fair enough; as I’ll argue in a little while, I think the best remedy for California’s law is to persuade the legislature to make it more accommodating to homeschoolers.)

Second, there’s the contrast between this court’s approach to homeschoolers and the Supreme Court’s approach to conscientious objector cases (like Seeger). In the latter, the Supremes broadened the letter of the law to include exemptions for those whose objections didn’t flow out of religion, let alone out of a traditional peace church. I recognize that the Court in this case was construing a statute and trying to avoid supposed problems of establishment: a law that granted c.o. status only to "religious" believers or peace church adherents might be regarded offering the religious a privilege that others aren’t offered. (Of course, some might argue that that’s the purpose of the First Amendment free exercise clause.) But my point here is simply that the California court here seems to read any free exercise exemption very narrowly. If a law were drafted so as to embody this narrow construction, it would likely be subject establishment objections under Seeger.

Third, in considering the possibility of a free exercise exemption, the California court treads on dangerous ground, putting itself in the position of deciding what counts as a genuinely religious ground of a duty to homeschool. If I were inclined to be generous, I’d say that they were erring on the side of extreme caution in permitting exemptions, so that only members of churches or denominations that positively ordered their adherents to homeschool their children would have access to a free exercise exemption. But don’t free exercise rights belong to individuals, who have to consult their consciences? How can a judge tell me what my genuinely conscientious duties are? In other words, the court’s caution here--if indeed that’s what it is--compels it to run the risk of deciding what counts as a religion or a religious/conscientious scruple.

Stated another way, in its efforts to protect the children in this case (I have no idea what the dad was doing or how the mom was teaching) and to promote some goods that public schools are said to accomplish (as do many families that homeschool) the court has potentially made it nearly impossible to homeschool in California. The many who are decent and scrupulous about caring for the good of their children and of their country are sacrificed because a few might not do well by their children. We might as well take all children out of their parental homes because some parents are abusive behind closed doors.

My conclusion from all this is that the court was probably too zealous in narrowly reading California’s law, but also that the law is unduly restrictive of homeschooling. The remedy I’d propose, however, is new legislation, making state law more accommodating to homeschoolers. Else we necessarily enter the thicket of judicially carved (and hence necessarily arbitrary) exemptions and restrictions. I can play that game with the best of them, but would prefer to use cases like this to make law the old-fashioned way, by legislators responding to the appeals of concerned citizens and deliberating about how most effectively to improve matters.

Update: Thanks to a commenter for noting both that the likely option of choice for California homeschoolers has been setting up your home as a private school and that it’s possible to read the appellate court decision as not permitting this option either.

According to the court, the intent of the California law is to protect the rights of children by seeing to it that their teachers are competent. Parents can "protect" the "rights" of their children by acquiring the appropriate teaching credentials themselves, hiring appropriately credentialed tutors, or enrolling their kids in a school that engages in quality control. Public schools do so by enforcing credentialling requirements. Private schools don’t have to hire credentialed teachers, but their administrators have an incentive to assure that their employees are "capable of teaching" and it’s relatively easy for the state to engage in quality control here.

In other words, it’s possible to read the state’s requirement that home tutors have appropriate teaching credentials to mean that no one can educate at home without such a credential. On this reading of the law, the private school affadavit is merely a dodge not in keeping with the intent of the law.

The recent appellate opinion relies on this old California ruling on charges filed against the proverbial great grandparents of today’s homeschoolers. All the reasoning found in the current decision is in place here.

Also worth noting that Pierce v. Society of Sisters, the great parental rights decision, contains the followiung two statements (I’ve reversed the order):

While the first statement is a ringing endorsement of "the liberty of parents and guardians to direct the upbringing and education of children," the second indicates that this liberty is not absolute, that the state may reasonably regulate how parents exercise their liberty (and responsibility).

Update #2: You can read a little more on our commenter’s blog here; there’s some discussion of the practical import of the court’s dismissal of the First Amendment objection, offered by an attorney for the HomeSchool Association of California. CRO