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California Home Schooling
Posted by: Dale Franks on Saturday, March 08, 2008

The time has come for us to have another nasty public disagreement among the QandO bloggers. I am referring to McQ's post on In re Rachel L.

First, as a matter of judicial precedent, the Supreme Court held in 1925 in Pierce v. Society of Sisters (268 U.S. 510) that parental rights do not include a constitutional right to home school. Essentially, whether parents can home school is a matter for the state legislature to decide.

Now, if you make a religious claim, i.e., you require home or private schooling for religious reasons, then you can make a rights claim under Wisconsin v. Yoder (406 U.S. 205)

In terms of California law, the state supreme court held in 1953 in People v. Turner (121 Cal.App.2d Supp. 861, 865 et seq.)—a case in which the US Supreme Court denied certiorari—that there is no right under the California constitution to home school either, in a decision that follows closely the reasoning of the Court in Pierce.

Under §48220 children may be home schooled as long as the home "tutor or other person shall hold a valid state credential for the grade taught."

So, I'm not sure what all the uproar is about, at least in terms of the legal issues. The Supreme Court made this determination in 1925. California did so at the state level in 1953, and this court merely applied the 55 year-old precedent in Turner.

As far as I know, only the state courts of Michigan have held that there is a constitutional right for parents to home school, under the constitution of that state.

with that in mind, I am somewhat amused that this particular case is being used as evidence of some sort of new and horrific creeping liberalism. The California appellate court simply upheld an 83 year-old Supreme Court decision and a 55 year-old California ruling. The decision in In Re Rachel L. is neither new, nor novel.

I am also amused by the following exchange in the comments section of the previous post:

Q: "Oh, and by the way, which constitutional amendment says that parents have a right to home school their kids?"

A: "Which constitutional amendment says that you have a right to cultivate begonias?

What’s your point?"


Since children are not property for parents to dispose of as they wish, what's yours?

Unless you are arguing that children are chattel, then you have already, in principle, granted that there should be limitations on parents' "right" to raise their children as they wish. Once you have done so, we're now simply quibbling over the details of those limitations.

Moreover, California does allow children to be home-schooled. At most, we're really just arguing about whether the conditions for doing so are too onerous for parents.

As a practical matter, this uproar is really a function of the fact that no one has really challenged the law for the past 50 years. It required a) a school district to push the issue, and b) a set of parents to object.

Now that it has happened, however, Governor Schwarzenegger has already publicly announced that he'll be pushing for a revision to §48220 of the education code to loosen the restrictions on homeschooling.

I think that's a good thing as a policy matter.
 
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So, I’m not sure what all the uproar is about, at least in terms of the legal issues. The Supreme Court made this determination in 1925.
Are you suggesting that Supreme Court decisions are never wrong or outrageous?

And, incidentally, your reading of Pierce is itself wrong. It did not explicitly hold there is "no right to homeschool." It held that a state may "require that all children of proper age attend some school." The notion that (acceptable) homeschooling is not "some school" is a novel and controversial interpretation.

Given that Pierce is widely considered to be one of the first "substantive due process" cases, it is hardly surprising that libertarians are aghast at seeing it now used as a sword against parental autonomy. It would be akin to suggesting that Roe v. Wade authorized state laws requiring compulsory abortions.
 
Written By: KipEsquire
URL: http://www.kipesquire.com
Are you suggesting that Supreme Court decisions are never wrong or outrageous?
Further, can you imagine such a ruling in say, 1860?

The big deal, Dale, is the government usurping rights from the people... that is, the education of their own children, and reserving that right to themselves... certainly a situation the founders never envisioned.

This rather looks like the two frogs in the pot, noticing the occasional bubble going by as it comes to a boil.

I think the reading of the constitution incorrect, here as well. If I recall correctly, the constitution was not a limit on the rights of the people, but a list of the limited rights the government had... (you remember, limited government?) At what point in the constitution does it say that Education is the government’s right?
 
Written By: Bithead
URL: http://bitsblog.florack.us
Are you prepared to argue that a parent has a right to prevent their child from getting an education at all? After all, if there is no State authority to mandate some level of education, then a parent would have the right to keep their child out of school altogether. If you think that parents have the right to do anything they like with their child, make that argument. Otherwise, you accept the legitimacy of the State to set some rules.
 
Written By: Jon Henke
URL: http://QandO.net
Are you prepared to argue that a parent has a right to prevent their child from getting an education at all? After all, if there is no State authority to mandate some level of education, then a parent would have the right to keep their child out of school altogether. If you think that parents have the right to do anything they like with their child, make that argument. Otherwise, you accept the legitimacy of the State to set some rules.
There’s a fine line where "some rules" becomes too restrictive.

Good rule: the state says you must feed your children
Too restrictive: the state says you must feed your children 3 servings of carrots every day

Good rule: the state says you must educate your children
Too restrictive: the state says you must send your children to public school

 
Written By: Steverino
URL: http://
KipEsquire:
Are you suggesting that Supreme Court decisions are never wrong or outrageous?
Of course they sometimes are, but this one reads like a straightforward application of a fundamentally bad statute, not a tortured interpretation of an otherwise good one. If problem lies with the underlying law, that’s a job for the Legislature and/or the electorate to fix, not the courts.

Equally importantly, this ruling was issued by the (intermediate) Court of Appeal, and applied a 55-year old precedent of the (higher) Supreme Court. Are you suggesting that it is ever appropriate for a lower court to ignore higher court’s clear, binding precedent?

BitHead:
This rather looks like the two frogs in the pot, noticing the occasional bubble going by as it comes to a boil.
Actually, it looks nothing like that, as the "constitutional" (liberal/looneytarian for "I’d really, really, really like it to be in the Constitution) right to homeschool one’s children has never been recognized in the first place. FWIW, the tired boiled frog analogy has never been valid, even for frogs.
I think the reading of the constitution incorrect, here as well. If I recall correctly, the constitution was not a limit on the rights of the people, but a list of the limited rights the government had... (you remember, limited government?)
You recall incorrectly. The federal constitution is a list of the limited powers of the federal government, with a few specific limitations on state government, as well. Otherwise, if the constitution doesn’t say the states can’t do it, they can.
At what point in the constitution does it say that Education is the government’s right?
That would be Amendment X of the irrelevant constitution, or Article 9 of the relevant one.
 
Written By: Xrlq
URL: http://xrlq.com/
And, incidentally, your reading of Pierce is itself wrong. It did not explicitly hold there is "no right to homeschool." It held that a state may "require that all children of proper age attend some school."
I think this is the crux of the argument, and I think California has decided to very narrowly define "some school" to a point that discourages homeschooling except under very limited, and I think, unreasonable circumstances. And I further think that’s been done purposefully with that precise intent of essentially making it an almost impossible option for parents.

In my post I certainly don’t fault the court, it simply interpreted the state’s constitution, precedent and statute as it should - which is why I called it a "constitutional amendment moment" for California.

I think that if this went to the USSC, you’d find they’d include homeschooling, within certain broad parameters, as legitimately "some school". And I think they’d support the state requiring children to attend "some school". What I don’t think they’d find reasonable is the California’s narrow definition of "some school".

In fact, the point made boils down to Steverino’s argument above. The California definition is much too restrictive and needs to be amended so that homeschooling is reasonably accommodated within the definition of "some school". At this point, I don’t consider that definition to be reasonable.
 
Written By: McQ
URL: http://www.QandO.net
Are you prepared to argue that a parent has a right to prevent their child from getting an education at all? After all, if there is no State authority to mandate some level of education, then a parent would have the right to keep their child out of school altogether. If you think that parents have the right to do anything they like with their child, make that argument. Otherwise, you accept the legitimacy of the State to set some rules.
If you’re prepared to argue that the state has that right, be prepared also to show us where in the constitution such rights are granted to the state.
 
Written By: Bithead
URL: http://bitsblog.florack.us
Actually, it looks nothing like that, as the "constitutional" (liberal/looneytarian for "I’d really, really, really like it to be in the Constitution) right to homeschool one’s children has never been recognized in the first place.
See my answer to Jon. Where in the constitution is the state granted the role of mandating education?
 
Written By: Bithead
URL: http://bitsblog.florack.us
You recall incorrectly. The federal constitution is a list of the limited powers of the federal government, with a few specific limitations on state government, as well. Otherwise, if the constitution doesn’t say the states can’t do it, they can.
An interesting position. First, what you’re suggesting is that my read of the federal constitution correct, were the federal government imposing the ruling. Seems to me, though that the borders get a little fuzzy and hard to read with education of late, given the federal government’s increasing role in it. They are in fact, involved, if secondarily.

This also seems a matter of convenience. I can see, even, where those seeking to increase the power of government in total... people who normally argue for the federal government’s supremacy over the states... suddenly arguing for states rights in this case, since it certainly serves the goal of a larger, more intrusive government.



 
Written By: Bithead
URL: http://bitsblog.florack.us
Franks: nothing about the implication of my statement turns on the condition of children at "chattle". Here is a fact around which you have no way unless you’re an abject imbecile: parents are the ones naturally charged with responsibility for their children, and this necessarily implies commensurate authority.

Please note, unless you’re an abject imbecile, that my point went to literally countless aspects of human life which are not specified as the abject imbecile "mkultra" demanded. If you cannot grasp where that’s going, then you bloody deserve him right up your ass.
 
Written By: Billy Beck
URL: http://www.two—four.net/weblog.php
"If you’re prepared to argue that the state has that right, be prepared also to show us where in the constitution such rights are granted to the state."
That’s not nearly good enough, Eric. The task is to demonstrate how those right come into existence in the first place, before they can be delegated.
 
Written By: Billy Beck
URL: http://www.two—four.net/weblog.php
Billy, you’re correct of course, that is the larger issue, but these arguments were originally made, here, on the basis of the constitutions in play. I’m simply arguing up that line.
 
Written By: Bithead
URL: http://bitsblog.florack.us
"Charge the common ground." (Yes, "Hold On", 1983)

Don’t settle for anyone else’s infirmities, Eric.

The "larger issues" are the ones that matter most.

Run your mind as "large" as it’ll go.
 
Written By: Billy Beck
URL: http://www.two—four.net/weblog.php
The Longs are in compliance with the CA Ed. Code. Nowhere in the code does it say that a "full-time private day school" cannot be located within the parents’ home. The 3 judges made a very Clintonesque argument about the meaning of the word "in" to say that only traditional private schools qualify.

There were a couple of cases in the 1980’s that upheld the right of home schools to operate as private schools in California. According to the Homeschool Legal Defense Agency, these are People v. Darrah, No. 853104 (Santa Maria Mun. Ct. Mar. 10, 1986) and People v. Black, No. 853105 (Santa Maria Mun. Ct. Mar. 10, 1986).

The best option given the concerns about whether this one deeply troubled family ought to be allowed to homeschool would be for the CA Supreme Court to "depublish" the appellate court’s decision. From my understanding, that would make it binding on the Longs but not the rest of the 166,000 or so homeschoolers in the state.
 
Written By: Crimson Wife
URL: http://bendingthetwigs.blogspot.com
Hehheh. Understood...hell, I’ve always understood that.

However, through lots of scar tissue, I have found that defeating the original argument is foundational to explaining WHY it got defeated. The larger issue is why. And most people, as you yourself have noted, are simply not prepared to accept the principles as such, until the feel a bit boxed in by their own preconceptions.


 
Written By: Bithead
URL: http://bitsblog.florack.us
The best option given the concerns about whether this one deeply troubled family ought to be allowed to homeschool would be for the CA Supreme Court to "depublish" the appellate court’s decision. From my understanding, that would make it binding on the Longs but not the rest of the 166,000 or so homeschoolers in the state.
Does this constitute equality under the law, in your view, I wonder?

 
Written By: Bithead
URL: http://bitsblog.florack.us
Bithead:
See my answer to Jon. Where in the constitution is the state granted the role of mandating education?
See my answer to you. I already answered that question, complete with links.
 
Written By: Xrlq
URL: http://xrlq.com/
See my answer to Jon. Where in the constitution is the state granted the role of mandating education?
The Constitution grants powers to the Federal government.
 
Written By: Jon Henke
URL: http://QandO.net
Guys; Sorry about that. I was reading and responding in order, as you see.
 
Written By: Bithead
URL: http://bitsblog.florack.us
"See my answer to Jon. Where in the constitution is the state granted the role of mandating education?
The Constitution grants powers to the Federal government. "

The Constitution actually limits what the federal govt can do. Also it states in the constitution anything not implicitly granted to the federal govt falls under the purview of the state govt.

 
Written By: retired military
URL: http://
RM;
True. Again, however, the borders of that argument get a little fuzzy and hard to read with education of late, given the federal government’s increasing role in it.
 
Written By: Bithead
URL: http://bitsblog.florack.us
I wondering if anyone wants to comment on this. This could be something or nothing, but in light of the homeschool discussion, I’m gald my kids are not California educated.

The most damning:

Senator Lowenthal wants to strike the law that prohibits a public school teacher from “teaching communism with the intent to indoctrinate or to inculcate in the mind of any pupil a preference for communism.”
 
Written By: tonto
URL: http://
The Constitution actually limits what the federal govt can do. Also it states in the constitution anything not implicitly granted to the federal govt falls under the purview of the state govt.
The Constitution grants powers to the Federal government. The Bill of Rights and following amendments limit the government.
 
Written By: Jon Henke
URL: http://QandO.net
True. Again, however, the borders of that argument get a little fuzzy and hard to read with education of late, given the federal government’s increasing role in it.
Whether the federal government can impose restrictions on home schooling, e.g., as a condition of receiving federal funds, is an interesting question; however, it’s completely irrelevant to this case, which is purely a question of state law.
 
Written By: Xrlq
URL: http://xrlq.com/
Maybe loosening restrictions on homeschooling is a good policy. Then all the anti-vaccination nuts that McCain is encouraging can homeschool their unvaccinated brats and measles, mumps, and rubella can remove them from the gene pool.
 
Written By: Retief
URL: http://
And the pity Retief, given your previous post, sometimes seems to be that your parents didn’t home school you.
 
Written By: looker
URL: http://

 
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