by Chris Gacek
March 11, 2008
A great deal has happened since my Friday posting on the California home school decision — In re Rachel L. First, Governor Arnold Schwarzenegger issued a press release on Friday striking out at the court decision:
“Every California child deserves a quality education and parents should have the right to decide whats best for their children. Parents should not be penalized for acting in the best interests of their childrens education. This outrageous ruling must be overturned by the courts and if the courts dont protect parents rights then, as elected officials, we will.”
This opens the possibility that political action, in addition to legal appeals, may lie ahead. However, proponents of home schooling in California are wary of a legislative option because a new law might codify a set of parent-school relationships that are less friendly than those in place before the court decision. Given the liberal composition of the California legislature, that is a justifiable concern.
Second, the Home School Legal Defense Association (HSLDA) has taken a step to nullify the decision. While the Rachel L. family and its California counsel plan to appeal the decision to the California Supreme Court, HSLDA has also posted a petition online collecting the signatures of those who would like the Court to “depublish” the opinion. HSLDA plans to formally ask the Court to depublish the Rachel L. opinion which would render it unusable “by other California courts” and eliminate the decision as a threat to other homeschoolers. By gathering signatures, HSLDA would like to demonstrate to the Court “that many other people, both in California and across the country, care deeply about homeschool freedom in California.” Depublishing would be a simple way to alleviate this crisis.
Third, Eugene Volokh, a libertarian/conservative UCLA law professor and blogger wrote about the home schooling case on March 6th — as edited by Alliance Defense Fund:
Its pretty well-settled that the parental rights cases — such as Pierce v. Society of Sisters (1925) — dont secure a right to home-school … .
Religious homeschooling is a different matter. Wisconsin v. Yoder held that the Amish could pull children out of school at age 14, and then vocationally train the children at home, notwithstanding a compulsory education law that generally required school attendance until 16. And Yoder survives the Courts decision in Employment Division v. Smith (which mostly holds that the Free Exercise Clause doesnt require religious exemptions from generally applicable laws, but which expressly preserves such claims in parental rights cases like Yoder).
What appears to be the crucial California case, People v. Turner (1953), has some difficult language for the proposition that there is a constitutional right to homeschool:
…, we have been unable to find a single case in which it has been held that so-called compulsory attendance statutes are rendered unconstitutional and void merely by reason of a failure to recognize home instruction as an alternative to attendance in the public schools.
Well, only one thing is certain — we are destined to hear a great deal more about this case and the related legal arguments. A great deal has changed in California since 1953, and the Court would be wise to accommodate the educational arrangements that now exist for something like 200,000 students.