Monday, August 11, 2008

More On California

On Friday, the Second Appellate Court of California determined that parents do not need a teaching credential in order to homeschool their children. This is widely considered a landmark case and a definite victory for homeschoolers in California. However, after reading the court opinion, the case has left some some lingering doubts about what may be ahead for California homeschoolers.

In June, when the court proceedings took place, Presiding Justice Joan Demsey said,

"All of you recognize the issues before us are monumental, We're as frustrated as you are."
At the time, Judge Demsey did not elaborate on the source of her frustration; however, the court opinion (PDF) provides some additional clues.

It is important to recognize that it is not for us to consider, as a matter of policy, whether home schooling should be permitted in California. That job is for the Legislature. It is not the duty of the courts to make the law; we endeavor to interpret it. (Cf. In re Marriage Cases (2008) 43 Cal.4th 757, 780.)

Our first task, interpreting the law of California, is made more difficult in this case by legislative inaction...

The principle question before the court was whether a home school can be considered a private school....It appears that the statutory language, standing alone, is ambiguous.
The court clearly appeared frustrated with the ambiguous language and legislative inaction. Despite this obstacle, the court somehow concluded that since the legislature has acted as if homeschooling were permitted, "that home schools may constitute private schools."

The court opinion also discussed the "Constitutionality of of the Restrictions on Home Schooling" and found no absolute right to homeschool.

In this case, the dependency court declined to consider whether sending Jonathan and Mary Grace to public or traditional private school was necessary to preserve their safety because it believed that parents possess an absolute constitutional right to home school. This is incorrect; no such absolute right to home school exists. Instead, as we now discuss, parents possess a constitutional liberty interest in directing the education of their children, but the right must yield to state interests in certain circumstances. (p. 35)
Under what circumstances must a parent yield to state interests?

The court appeared to accept the argument that in cases of a dependent child (a ward of the court), the safety of the child cannot be guaranteed when the child is shielded from all mandated reporters of child abuse.

While parents generally have a parental liberty interest, California also has recognized that the “welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect.” (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) ...

"As against the state, this parental duty and right is subject to limitation only ‘if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.' [Citation.]" (In re Roger S. (1977) 19 Cal.3d 921, 928.)
Educators are mandated reporters and are believed to provide an "extra layer of protection" for the child. Therefore, the court concluded that the rights of the parents to home educate can be overridden and the dependent child sent to school.

The court did not address the potential restrictions the state could place upon "fit" parents or what parental decisions could have have a "potential for significant social burdens." That leaves open the real possibility that there may be other circumstances, besides health or safety, when the state can over ride the parents' constitutional rights. Does the "compelling interest of the state" permit a "fit" parents decision to homeschool without state oversight? That court did not have the responsibility to answser that question and put it back on legislatures to decide.

In the conclusion, the court once again expressed their frustration with the legislature's inaction with regard to homeschool regulation. They provided a brief summary of what is being done in other states and cited the "absence of objective criteria and oversight for homeschooling."
4. California Has Few Express Limitations on Home Schooling

We close with an observation that the fact that home schooling is permitted in California as the result of implicit legislative recognition rather than explicit legislative action has resulted in a near absence of objective criteria and oversight for home schooling. Given the state’s compelling interest in educating all of its children (Cal. Const., art. IX, § 1), and the absence of an express statutory and regulatory framework for home schooling in California, additional clarity in this area of the law would be helpful. (p. 44)
Will the legislature take the bait and begin to move toward a law specifically addressing homeschooling? That would be unfortunate, and no doubt with California's homeschool network a bitter battle to engage in.

For now, all is quiet again in California and homeschoolers can continue to educate their children at home. But only time will tell if the battle is really over or if legislatures will decide to clarify the law for the benefit of the judges but at the expense of homeschoolers.

"Eternal vigilance is the price of liberty." Thomas Jefferson

Others blogging about the court ruling,
NHELD has issued a statement about the ruling, here's a brief portion.
"The bottom line is this: The requirement existed that credentialed tutors were required, the practice existed that parents homeschooled without having credentials as tutors, the Legislature and state agencies accepted the practice despite the law, the Court recognized this occurred and concluded that because it occurred, the practice was accepted despite the existence of the law. More importantly, the Court held that despite the Constitutional rights of parents to the upbringing and education of their children, the state can override that right.
Illinois Review has some additional thoughts and links.

No comments: