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No Constitutional Right to Home-School:

A bunch of people have written in about In re Rachel L., a California Court of Appeal decision holding that there's no constitutional right to home-school your children. I read the case a couple of days ago, and checked out other caselaw on the subject. Here's what I've found:

1. It's pretty well-settled that the parental rights cases -- such as Pierce v. Society of Sisters (1925) -- don't secure a right to home-school. This is partly because Pierce seemed to expressly decline to raise such a right, saying, "No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare."

Now perhaps this should just be taken literally to mean that the Court wasn't deciding this question. Or perhaps "require[ments] that all children of proper age attend some school" should -- as a constitutional matter -- be satisfied by a showing that the child is "attend[ing]" a home school that is allowing the child to perform at or beyond grade level. Or perhaps the means for regulating home schooling (such as tests that show a student's progress) are much more advanced now than they were then, and that regulated home schooling is a "less restrictive alternative" that would still accomplish the government interest in making sure children are adequately educated. But as best I can tell, all the appellate courts dealing with the subject have taken the view that bans on home schooling (or requirements that only people with suitable teaching credentials may home-school) are constitutional under Pierce. This has certainly been the constitutional rule recognized by California courts for 50 years; In re Rachel L. relies on a California appellate precedent from 1953.

2. 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 Court's decision in Employment Division v. Smith (which mostly holds that the Free Exercise Clause doesn't require religious exemptions from generally applicable laws, but which expressly preserves such claims in parental rights cases like Yoder). And in People v. DeJonge, 501 N.W.2d 127 (Mich. 1993), the Michigan Supreme Court generally held that there is a constitutional right to home-school, though with some regulations (not including a requirement that one parent be a certified teacher, which is the very requirement that the Michigan Supreme Court struck down).

The California Court of Appeal case concluded that the parents didn't introduce enough evidence that their motivation for home-schooling was religious, and it seemed more broadly hostile to this theory. Still, I think it would be possible for home-schooling parents in California who are home-schooling out of felt religious compulsion (or perhaps even felt religious motivation) to raise a Yoder claim, and perhaps to prevail on it.

3. I haven't done a precise head-count, but my sense is that home-schooling is legal in nearly all states -- but as a result of legislation, not constitutional litigation. It's quite possible that this case will trigger pro-home-schooling legislation in California.

4. As a policy matter, I think home-schooling -- with some regulation, for instance with mandatory testing of children to make sure they are learning well enough -- should indeed be legal.

5. As a constitutional matter, I'm not at all sure what the rule ought to be. On the one hand, I sympathize with parental rights claims, especially given the dangers of giving the government broad power to control children's upbringing, and given the American tradition of recognizing parental rights (though a tradition that has not been uniformly friendly to home-schooling).

But on the other hand, I think that whatever one thinks of the general unenumerated constitutional rights debates, a claimed right to control a third party -- however much the claimed rightsholder might generally love the third party, and however much that third party might need some control from someone -- strikes me as among the weakest sorts of claims for unenumerated rights. So I'm not confident about the right answer here; my post is primarily aimed at reporting on the controversy.

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California Court Agrees to Rehear Decision That Found Home Schooling To Be Illegal:

The Alliance Defense Fund reports the news.

Related Posts (on one page):

  1. California Court Agrees to Rehear Decision That Found Home Schooling To Be Illegal:
  2. No Constitutional Right to Home-School:
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