Strengthening Constitutional Self-Government

No Left Turns

Homeschoolers and the law in the Golden State

Is the title of my essay over on the First Things site.

Update: An attorney writes in response to my essay (I omit the honey that precedes the wormwood):

. You follow your quotation of the relevant statutes establishing the alternatives available to California parents to public schooling with the interpretation of those statutes in Turner, concluding that "[t]he clever and creative interpretation of the law that makes every home potentially a private school has no clear foundation in legislative intent." This begs the question, by assuming that Turner correctly interpreted the statutes, of what the statutes actually say. (By the way, do legislatures have intentions? They always struck me as being a more or less incoherent collections of interests with manifold purposes playing out in their every act. I might go so far as to observe that in the circles in which I move, we usually call judges who believe they are competent to divine "legislative intent" "liberal judicial activists".) Is it impossible that the distinction between the alternatives offered in the statutes does not turn on home vs. private school instruction
(I have searched in vain for any reference to home-based education in the credentialed tutor option), but rather on "full-time day school" vs. "study and recitation for at least three hours a day"? Let us not forget that California’s largest city was historically something of a company town, the industry centered therein being one of the few in the country that makes some considerable use of child-labor, necessitating education practices that accomodate that labor. As a homeschooler yourself, I am sure you are aware that the nature of homeschooling does not always readily lend itself to the hours and days parameters of classroom schooling (some would contend that this is one of its advantages). Nevertheless, hours and days requirements (usually calibrated to public school requirements) are quite common in state homeschooling statutes, though I cannot recall any that would allow a mere three hours beyond the earliest years of primary schooling (forgive me, I do not have my
statutes at hand). Might the credentialed teacher (as opposed to the person "capable of teaching") requirement of this alternative be directed at balancing the "full-time" and three hour a day options? (Perhaps I am wrong and the California statutes offer an incompatible definition of "private full-time day school". If not, I wonder what makes such a school: how many students must such a school have? is one enough? is it the parent-student relationship that is the problem? is that cured if I also teach my neighbor’s child music while my neighbor teaches my child mathematics?)

2. With all due respect to Justice White, his dicta in Board of Education v. Allen does not amount to res judicata. I do not believe the Supreme Court has delivered an opinion on homeschooling (other than Yoder, of course, which is really about free exercise of religion). Troxel v. Granville’s finding of a fundamental constitutional right of parents to rear their children, read together with Pierce v. Society of Sisters and the near universal (before the California court’s decision, I believe I could say simply universal) acceptance by the states of homeschooling, may be instructive. At the very least it challenges the notion that a private school adminitrator’s economic motivation is a more valid foundation of a child’s best interests than is parental attachment. That liberal judicial activist, Justice Thomas, I believe correctly identifies the test for restrictions on fundamental constitutional rights in his concurrence in Troxel -- compelling governmental interest ac
hieved by a narrowly tailored law or policy that is the least restrictive means of achieving that interest. The education of minors is, without question, a compelling governmental interest; can a ban on home education (or even a restriction to home education by credentialed tutors) meet the tests of a narrowly tailored law or policy that is the least restrictive means necessary to achieve that interest? Forty-nine states (recently fifty), including approximately thirty by specific statute, seem content with less restrictive means.

The short of my response to his first point is that even if you don’t accept the notion of legislative intent, the plain meaning of the word "school" surely didn’t, at the time the legislation was adopted, mean the home.

With respect to the second point, I’m someone who appreciates (in both senses of the word) the difficulty that school authorities have in regulating homeschoolers. Conceding that the education of our children is a compelling state interest, I would as a judge defer to a legislature’s determination that this difficulty required a relatively restrictive homeschooling law. As a legislator or advocate, I’d argue against such a law. I’d cite this decision to bolster the case that the rights of parents should be given a great deal of respect, but I’d still make the argument that giving parents a relatively free rein produces results with which the republic ought to be content, both with respect to citizenship (including, by the way, the appreciation of diversity) and with respect to preparedness for a productive working life.

Discussions - 3 Comments

I'm wondering about a statement toward the middle of your excellent article, where you said:

"While it’s possible to quarrel with the Court on this point, those who undertake such a quarrel had better be prepared to amend the Constitution, making the right to homeschooling explicit."

I think I understand the gist of your point, which is that homeschoolers will never be completely "safe" in front of various courts until we have such an amendment. On the other hand, I'm very tempted to argue the other side, which is that we can't (and don't need to) amend the Constitution on the subject of the government's control of educating our children, since there is no such power given to the government in the Constitution in the first place.

I may have missed it in your article (I'm on lunch break, so I'm reading fast), but what (if anything) is the constitutional argument for government to require school attendance (or to define what "school attendance" actually means)?



You'd have to look at every state constitution, and at the interpretive tradition in that state, to see how the authority is grounded in different jurisdictions. In Pierce v. Society of Sisters, the Supreme Court says that there's no basis in the U.S. Constitution for objecting to some form of state regulation of education.

On my drive in today, I heard that there is already legislation afoot to counter this ruling and that the governor has issued a statement supporting home schooling. I also understand that, in this case in particular, the mother never filed the proper paperwork to declare a private school (fourth option) and that triggered the case. This information is from a nationally-syndicated show called "Point of View", speaking directly with someone in Los Angeles.

This just makes no sense. Maybe I'm comparing apples and oranges but they are in the same crate. On one hand, abortion clinics consistently go largely unregulated although an abortion is considered a major surgical procedure and few, if any, statistics are kept on maternal death and/or injury as a result of the procedure or even how many abortions are performed in a year. However, heaven forbid a family (other than Amish) chooses to educate their child/children at home because of a hostile or inadequate school system! I'm still shaking my head at this one.

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