Attorneys John L. and John M. Cooley explain the recent anti-home schooling decision by the California Court of Appeals.
Charleston South Carolina

On February 28, 2008, the 2nd District Court of Appleas in Los Angeles issued an opinion that has shaken the home schooling environment. The court ruled that the parents of an elementary aged child did not have a legal or constitutional right to home school their child. In re Rachael L, et. al., 73 Cal. Rptr. 77 (2008).

According to the Court of Appeals, the California Education Code permits just three venues of education: (1) public school instruction; (2) private tutor instruction by a credentialed teacher; or (3) private school instruction where the pupil is in attendance full time at the school. Since the mother did not have a credential, she did not qualify as a tutor. Moreover, while the child was enrolled in Sunland Christian School, she did not actually a end the school and participated in what the school termed “independent study.” Many California private schools operate such independent study programs where home school parents receive resources, instruction and some supervision. The Court noted that the code did permit independent study, but concluded the program of home schooling the parents followed did not comport with the intent contemplated or specifics required.

The Court also analyzed at least two primary US Supreme Court cases: Pierce v Society of Sisters, 268 U.S. 510, involving the right of parents to choose a private education over public education, and Wisconsin v Yoder, 406 U.S. 205, on the right of Amish parents to refuse to educate their children beyond the eighth grade. Pierce permit- ted parental choice, but stated that the state had a right to inspect and insure the quality, including that of the teachers. In Yoder, the parents’ long- standing religious convictions and historic community trumped the state compulsory attendance.

The Supreme Court noted, however, that “allowing every person to make his own standards of conduct in which society as a whole has important interests” is precluded by “the very concept of ordered liberty.” The historicity of the Amish belief in conjunction with agrarian, self-regulated society they followed militated in favor of an exemption from the compulsory education laws. That was not the case here, according to the Court of Appeals. Parents had options, including the choice of private education.

Almost immediately, an outcry arose from various groups, including home schooling associations. Governor Schwartzenegger stated that if the California Supreme Court upheld the decision, the legislature would act to protect the parental rights involving almost 200,000 home schooled students. Some have suggested that Congress should consider passing a constitutional amendment specifically addressing the rights of parents. Even the California Superintendent of Education has weighed in, stating that parents can continue to home school their children. The Department “is not going to sue parents.”

As of this writing, the parents involved were considering an appeal. If they appeal, it is likely that a number of parental and religious rights groups will file amicus briefs in support of the parental right to home school their children.

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