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As word of an appellate decision¯ In re Rachel L. ¯in California got around earlier this month, homeschoolers around the country reacted with incredulity and outrage. Ruling on a petition filed by attorneys representing the youngest two of eight homeschooled children, the judicial panel told a lower court to “order the parents to (1) enroll their children in a public full-time day school, or a legally qualified private full-time day school and (2) see to it that the children receive their education in such school.” In coming to this conclusion, the three judges found not only that California’s education law permitted home education under the narrowest possible circumstances, but also that it would be quite difficult (though not altogether impossible) to claim a religious exemption from the law’s strictures.

The contrast between what the court held and the expectations of California homeschoolers was stark. Prior to the ruling, any family considering homeschooling in the Golden State thought it could choose among four different paths:

• Hire a tutor with the appropriate teaching credentials, or acquire those credentials themselves.
• Pursue an independent study program (ISP) under the supervision of an accredited private school.
• Pursue an ISP, using a public school curriculum and subject to public school supervision.
• File a “private school affidavit,” in effect declaring itself a private school.

Most California homeschool families seem to have chosen the second or fourth options, either affiliating with a private school or declaring themselves private schools. The latter seemed to provide families the greatest degree of freedom. Above all, since under California law private-school teachers had only to be “persons capable of teaching,” as opposed to fully credentialed teachers, families could get around the rather stringent requirements outlined in the first option.

That was then; this is now. According to the appellate panel, California law contemplates home education only by fully credentialed tutors, with only a few minor exceptions, generally provided for and supervised by public-school systems. There is, the judges held, no legal provision for private-school ISPs or private-school affidavits. Parents who failed to conform to the law by enrolling their children full-time in public or private schools, or hiring a credentialed tutor, “may be subject to a criminal complaint against them, found guilty of an infraction, and subject to imposition of fine.”

No wonder people were incredulous and outraged. Unfortunately for them, the court stands on pretty firm legal ground, following precedents and offering a “strict construction” of California law.

Consider, first of all, the relevant provisions of the state law, which offer the following exemptions from mandatory public school attendance:

Children who are being instructed in a private full-time day school by persons capable of teaching shall be exempted . . .
Children not attending a private, full-time, day school and who are being instructed in study and recitation for at least three hours a day for 175 days each calendar year by a private tutor or other person in the several branches of study required to be taught in the public schools of this state and in the English language shall be exempted. The tutor or other person shall hold a valid state credential for the grade taught.

Here, as clear as day, are the categories upon which the court insists.

The California court relied for its narrow construction upon two precedents¯ People v. Turner (1953) and In re Shinn (1961)¯which dealt, in effect, with the grandparents of today’s homeschoolers. In Turner , the court offered this construction of California law:

[A] mere reading of sections 16624 and 16625 clearly indicates that the Legislature intended to distinguish between private schools, upon the one hand, and home instruction by a private tutor or other person, on the other. If a “private school” as that term is used in section 16624 necessarily comprehends a parent or private tutor instructing at home, there was no necessity to make specific provision exempting the latter.

According to the Turner court, the state legislature explicitly contemplated only one sort of home education¯that conducted by a fully credentialed tutor. The clever and creative interpretation of the law that makes every home potentially a private school has no clear foundation in legislative intent.

The In re Shinn decision makes basically the same point: “Home education, regardless of its worth, is not the legal equivalent of attendance in school in the absence of instruction by qualified private tutors.”

To repeat: According to a string of California precedents, the law provides for one means of educating children at home. The affidavit mentioned in California law doesn’t turn a home into a private school. The reason, the Turner court says, is obvious:

namely, the difficulty in supervising without unreasonable expense a host of individuals, widely scattered, who might undertake to instruct individual children in their homes as compared with the less difficult and expensive supervision of teachers in organized private schools. Also the Legislature might reasonably have concluded that teachers in private schools would be under direct supervision of their school authorities at all times, and that the interests of the persons conducting the same would compel the maintenance of the required standard of instruction by competent instructors for otherwise the school would fail to qualify for the exemption granted thereby, and without pupils it could not continue to exist.

It makes sense for the state to distinguish between the credentials required of a home educator and those required of someone teaching in a private school. Because principals and headmasters have an interest in upholding the reputation of their schools, they’ll engage in quality control. And because there’s a limited number of private schools, it’s easier for state education authorities to supervise them. The state’s “privatization” of its responsibility to educate its citizens need extend no further.

The current court also makes short work of the ISP followed by Rachel L.’s family, asserting that purchasing a curriculum from a school, accepting minimal supervision, and taking tests “on campus” doesn’t amount to enrollment in a “private full-time day school.” This is, the court says, merely a “ruse.”

What, then, of the natural or God-given right and responsibility of parents to educate their children as they see fit? Many argue that the U.S. Supreme Court recognized this right in Pierce v. Society of Sisters , a 1925 decision that overturned an Oregon compulsory public-school attendance law. Writing for the Court, Justice James McReynolds affirmed “the liberty of parents and guardians to direct the upbringing and education of children under their control.” “The child,” he continued, “is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” But he also observed that “no question is raised concerning the power of the state reasonably to regulate all schools . . . [and] to require that all children of proper age attend some school.” The Court, in other words, recognized that the “natural right” of parents to direct the education of their children is not absolute. It has to be “civilized” to fit into a system of “ordered liberty.” The reasonable regulation of that right might include¯as Justice Byron White, writing for the majority in Board of Education v. Allen (1968), observed¯“refusing to accept instruction at home as compliance with compulsory education statutes.”

The most that can be concluded from the Pierce decision is that parents are entitled to some liberty in deciding how to educate their children. But the liberty does not necessarily extend to educating children at home. 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.

A somewhat more fruitful means of judicial opposition might be to insist on the rights of conscience, asserting one’s religious conviction that parents are obliged to be their children’s teachers. Here, the most relevant precedent is Wisconsin v. Yoder , a 1972 case dealing with the claim of Old Order Amish that their children should be exempted from compulsory attendance in school after completing the eighth grade. In Yoder , the Supreme Court found that compulsory education beyond the eighth grade threatened the perpetuation of the Amish way of life, which was “one of deep religious conviction, shared by an organized group, and intimately related to daily living”:

Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith.

That the Amish objection to compulsory schooling is faith-based is crucial:

A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a “religious” belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests . (emphasis added)

Of course, the free exercise of Amish faith must be balanced against the state’s legitimate interest in preparing its children for life as citizens. The Court affirms that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and self-sufficient participants in society.

Because, the Court finds, the Amish are “productive and very law-abiding members of society,” the state can’t make the case that further education of their children is necessary to fulfill its responsibility to prepare them for citizenship.

Thus far, Yoder ’s argument might seem reassuring to contemporary religiously motivated homeschool families. Though relatively few of them are quite as unworldly as the Old Order Amish, most surely believe that homeschooling is the best way for families fully to live in accordance with their faith. And homeschool advocates constantly point to evidence showing that homeschoolers grow up to be “productive and very law-abiding members of society.” A court that followed Yoder ’s lead in balancing the responsibilities of the state and the rights of homeschool parents would surely, it seems, have to rule in favor of the latter.

But the California court didn’t. The family’s “sincerely held religious beliefs,” “based on Biblical teachings and principles,” do not comprise “the quality of evidence that permits us to say that application of California’s compulsory public school education law to them violates their First Amendment rights.” “Moreover,” the court continues, “such sparse representations are too easily asserted by any parent who wishes to homeschool his or her child.” To be exempted from California’s law, the court seems to say, a family would have to have an extensive, long-standing, and well-known record of religiously grounded separateness that approaches that of the Amish, a pretty nearly insurmountable hurdle for everyone except the Amish. Anything lower, the court says, would run the risk of making each family an educational law unto itself.

This is a significant and perfectly respectable concern, one shared (and indeed forcefully articulated) by Justice Antonin Scalia. What’s more, once a court gets into the business of balancing free-exercise rights against legitimate state interests, there has to be a record to examine. How do parents prove a sincere religious motivation to homeschool? Should they invite judges of the law to be also the judges of their consciences? Courts are rightly uncomfortable going down this path, attempting to distinguish between sincere and insincere beliefs, between good and bad connections, between principle and practice. A denomination that clearly required its members to homeschool their children would make a judge’s task a little easier, but, so far as I know, that isn’t the case anywhere.

Before I leave Yoder behind, I would like to draw two more lessons from it. First, the Yoder court concedes that there are circumstances in which the state may unquestionably interfere in the parent-child relationship, even with respect to education, “if it appears that parental decisions will jeopardize the health or safety of the child.” Would this not have been a narrower ground on which to base the decision in In re Rachel L. ? Could not the court simply have said that the family’s long record with child-welfare agencies and the allegations before it in this case made it imperative, for the safety of these particular children , that they be placed in a setting where adults trained to recognize signs of abuse could monitor them?

Second, the Yoder court concedes “the obvious fact that courts are not school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of discrete aspects of a State’s program of compulsory education.” The primary responsibility for making education policy rightly rests with the state legislators, the state education bureaucracy, and local school boards. They combine expertise and political accountability in ways that no judge can.

Of course, homeschool families have often had an uneasy relationship with professional educators. When conflict occurs, homeschoolers find it easy to give in to the temptation¯all too common among all Americans¯to look to the judiciary for relief.

But this case shows how problematic the turn to the judiciary can be. Although the juvenile court judge sided with Rachel L.’s parents, finding a right to homeschool, the appellate court seems to have gone out of its way to make life difficult for all of California’s homeschool families. What one judge can give, another can take away.

There are reasons to be sympathetic with the appellate court’s strict construction of California law. It’s certainly preferable in general to a wide-ranging effort to enact an idiosyncratic sense of justice barely connected to the letter of the law, utterly indifferent to administrative costs and trade-offs, and not responsible to any constituency other than like-minded peers.

But a “strict constructionist” can also be utterly indifferent to administrative costs and trade-offs. The creative interpretation of California education law that homeschoolers had come to take for granted arguably represents an administrative accommodation to a growing trend. State and local education authorities seem to have offered homeschool families a means of coming within the law that those who enacted it didn’t contemplate. Rather than spend the time and money necessary to bring homeschool “outlaws” into the system, education authorities exercised a kind of benign neglect, accepting the claim¯surely in some sense true¯that a home can be a private school and that an independent study program supervised, however loosely, by a private school is the equivalent of attending a “private full-time day school.”

Some might regard this as an abuse of administrative discretion, the most obvious remedy for which is legislative oversight. The California General Assembly could have reined in the state Department of Education and local school boards, calling them to account for this creative interpretation of the law. That they didn’t do so¯despite the fact that these practices were widely known¯is an indication either of approval or indifference. The General Assembly either supported this administrative creativity or had more pressing matters to which to attend.

Still, because administrations come and go, a loose interpretation of the law is a slender reed upon which to rely. California homeschoolers should have been at least dimly aware of this. In 2002, the state Department of Education issued a statement based on a strict reading of the compulsory attendance law, asserting that homeschool families could not file a private school affidavit:

A parent’s filing of the affidavit required of a private school does not transform that parent into a private school. Therefore, those parents who home-school their children are operating outside the law.

There was a hue and cry about this, but, as it became clear that enforcement was to be left up to local school districts without the resources or stomach to take on determined homeschoolers, the agitation soon passed. Nevertheless, there’s a lesson here. A state Department of Education or local school board determinedly hostile to homeschooling could pursue children as truants and file criminal complaints against the parents. And homeschoolers who sought refuge in the courts would have to rely on judges who substituted their sympathetic judgment for a strict reading of the law and a due deference to politically responsible administrative authorities.

In the circles in which I move, we usually call such judges “liberal judicial activists.” Ironic, isn’t it?

In the end, there’s no good substitute for a law that explicitly acknowledges and civilizes the right of parents to educate their children at home, subjecting homeschooling to reasonable regulation to see that children are prepared for productive lives as citizens. I have no doubt that the vast majority of homeschooling families could produce results that are more than satisfactory.

I also have no doubt that a law generally providing for homeschooling¯religious or secular¯is preferable to an arrangement that requires judges or educational administrators to examine a family’s religious beliefs in an effort to determine whether they justify a free-exercise exemption from compulsory attendance laws. More than anything else, we don’t want access to legal rights or privileges dependent upon a secular official’s theological or doctrinal determinations. That sounds too much like establishment.

My advice to California homeschoolers is to return to the first principles of republican self-government. That means recurring first to the politically responsible branches and above all to the legislature. Make the case for amending California’s compulsory education law to accommodate the rapid growth¯in the state and across the nation¯of homeschooling. Build coalitions. In the face of likely opposition from teachers’ unions, it won’t be easy. But think of it as a lesson in active and responsible citizenship. Your kids will appreciate it.

Joseph M. Knippenberg is professor of politics at Oglethorpe University and adjunct fellow of the Ashbrook Center for Public Affairs, where he contributes to the No Left Turns blog . He and his wife homeschool their two children in Dunwoody, Georgia.

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