The California Home-Schooling Case In Re Rachel L.

On February 28, 2008, the Second Appellate District Division 3 of the Court of Appeal for California issued an opinion in the case called “In Re Rachel L.” This opinion denies that there is a fundamental right for parents without a teacher’s credential to homeschool their children outside the statutory exceptions to California’s compulsory education law. It does not ban all homeschooling. The sections of the law quoted by the court do not mention homeschooling, but have been interpreted to allow some homeschooling in certain circumstances, such as when parents with a teacher’s credential set up a private school in the home. The opinion is only an appellate opinion; it is not binding on all appellate districts in the state of California, but is only truly binding on courts in the Second Appellate District. The Second District includes Los Angeles and Ventura. Courts in other districts regard the arguments of fellow appellate courts in the same state as arguments that should be given attention and deference, but which need not be agreed with if the other courts disagree in good faith on what the law, as laid down by higher authorities or equal authorities, requires. The opinion is still significant because it is always damaging for an appellate court to deny the existence of a fundamental right that really exists, even if the court’s opinion has a narrow practical impact. The gradual and incremental accumulation of ideas in multiple opinions is how legal change often occurs. Each opinion going in the wrong direction makes it easier for another court to head in the wrong direction.

In Re Rachel L. is an extremely controversial case. Undoubtedly the judges involved mean well and are trying to apply the law as they see it to protect children and further the interests of the state and people of California. But judges are only human. And if they hear weak arguments for the truth and strong arguments for error, it is often easy to go the wrong way, particularly if the outcome seems best for the particular parties before the court as the court sees them. In Re Rachel L. may be a good example of the adage that bad facts make bad law. The court doesn’t come right out and say it, but it does insinuate in its opinion that it suspects the parents of the children involved in this case, or at least somebody in their home, of child abuse. It also suspects that the reason that children are being homeschooled is to prevent the discovery of that abuse. Now none of that may be even remotely true, but the court’s intuitions may color its approach to the case. The court also mentions that the father is said to have recently said that educating his children outside the home exposes them to “snitches.” (Not a helpful sentiment in litigating your case—although not the worst faux pas I’ve ever heard. The worst was a criminal sentencing hearing where the young defendant appeared in court with a tee shirt on that had a bloody skull cleft by a bloody hatchet on it.) If we’re going to take homeschooling to the Supreme Court, while it is difficult to control the sort of case that gets litigated, it would be much better if we had two unimpeachable but uncredentialed college professors giving their children a rigorous Great Books education who had been subjected to the ire of an unreasonable school board.

The whole tone of the opinion is that parents are somehow doing their children a disservice by homeschooling them. While there are undoubtedly those who do a poor job of homeschooling, nearly all parents love their children and want what they believe to be best for them. Most parents try to make sure that their children get a good education. Parents normally don’t choose to homeschool unless they obtain the resources and training necessary to make sure that they do a good job. I don’t think for a minute that being able to educate your children requires getting an education credential. While many education programs are no doubt excellent, and while knowing how to teach is beneficial, not all credentialed programs are helpful, not all credentialed persons know how to teach, and not all uncredentialed persons are unqualified to teach. I have known many people who are credentialed and actually attended a few classes with one person. My experience and the experience with my friend was that the California credentialing process is largely dedicated to political correctness and indoctrination and has little to do with actually learning how to teach students what they need to know. I also think that most parents love their children more than the average bureaucrat. While the set of people who want to homeschool their children may include a handful of the stereotypical anti-intellectuals, like those depicted as resisting public education in old 1960’s westerns, there are certainly plenty of teachers who mass produce educational problems within the public school system. To make a literary reference, there are “Dolores Umbridges” out there in the public school system in numbers at least comparable to bad homeschooling parents.

The appellate court notes that the trial court found a right to homeschool but still had some reservations about homeschooling. The trial court indicated that it was worried that homeschooling would interfere with the children’s ability to interact with people outside the family, deprive them of the help of people outside the family if something is “amiss” in the children’s lives, and prevent them from developing emotionally. While there might be rare cases in which these things are true, it certainly isn’t true for the vast majority of homeschooling parents. Law should be made based upon general truths about most people rather than on odd exceptional circumstances. After all, child abuse is already independently illegal. It isn’t necessary to outlaw homeschooling in order to try to prevent child abuse. My experience with homeschoolers is that they are more poised, better educated, better socialized, and far more capable in social interaction than the vast majority of people I meet who were educated in the public schools. I think that perhaps our system actually exposes students to peer pressure much earlier than it really should. Students are more capable of being socialized properly when they’ve been socialized in the family first. They’re much more likely to learn manners, good behavior, and a coherent worldview at home when properly homeschooled than they are in the incoherent post-modern collage of the public schools.

In the In Re Rachel L. opinion, the court briefly covers some of the cases that ought to be seen as supportive of a right to homeschooling and a few very old California cases that support compulsory public education. The court completely mis-states the holding in Pierce vs Society of Sisters 268 US 510, a Supreme Court of the United States case. The Pierce case allowed an injunction against a statute essentially banning private schools and requiring all children between the ages of 8-16 to attend public school. The U.S. Supreme Court believed that such a statue was unconstitutional in that it interfered with the liberty guaranteed by the Fourteenth Amendment to the Constitution. The court in Pierce said:

“We think it entirely plain that the act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public [school] teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have a right, coupled with a high duty, to recognize and prepare him for additional obligations.”

The In Rachel L. court tries to distinguish Pierce by saying that since California law allows alternatives to public education, it isn’t really unconstitutional. I think that the point of Pierce, however, is that states don’t have any business trying to standardize education. Parents have a right to guide their children’s education in different ways, and I think Pierce is correct in this respect. God has entrusted children to their parents. It is the responsibility of parents to raise children. There is nothing wrong with them delegating some of their children’s education to institutions voluntarily, but it is primarily the parents’ responsibility and the parents’ right to control and direct their children’s education. Parents have not given up that right to the state merely by being citizens of a republic. It is not merely a right, but also an obligation. While parents may allow others to help educate their children, it is ultimately the parents who are responsible for the education of their children. That responsibility should neither be taken lightly nor removed from the parents—even by a well-intentioned state.

Another case mentioned in In Re Rachel L. but not adequately dealt with is Meyer vs Nebraska 262 US 390. In Meyer, the Supreme Court of the United States invalidated a statute that made it unlawful to teach children the German language. The court notes that Plato and others have understandably sought to use education to mold children into model citizens. The court notes that the state does have the power to “compel attendance at some school and to make reasonable regulations for all schools.” But the court saw no reasonable basis for refusing children to learn German. The court notes that the Fourteenth Amendment is not merely about freedom from bodily restraint, “but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and, generally, to enjoy those privileges long recognized at common law as essential to the ordinary pursuit of happiness by free men.” I would argue that homeschooling is part of the fundamental right to bring up children to worship God according to the dictates of one’s own conscience. When we deprive parents of the opportunity to educate their children at home, we effectively make it possible for the state to abridge freedom of speech, conscience, and assembly by indoctrinating children while they are the most malleable and the most vulnerable.

If the state is genuinely concerned that students learn while being homeschooled, they merely have to set general standards. In any standard based test on general reading, writing, mathematics, or science, I imagine that most homeschooled children will exceed most public school children. So there is clearly a less restrictive means of obtaining the end of quality education, within the fundamental rights of parents, without a ban on homeschooling. I think that this failure to use this less restrictive means should render the current California compulsory education law unconstitutional. Credentialing is not as well tailored to the end, and places an unreasonable burden on the parents’ right to educate their children.

In most of the balance of the In Re Rachel L. opinion, the court deals with a variety of old California cases upholding California’s compulsory education statute at different stages of its development. What the court neglects to do is to deal with the advisory arguments in the dozens of cases in other jurisdictions that uphold the right to homeschooling. The court also fails to deal with the fact that homeschooling is considered a fundamental right in most other states. The fact that California’s compulsory education statute was believed constitutional in the 1950s or even in the 1960s certainly does not mean that it goes without saying that there is no fundamental right to homeschooling recognized today. If the weight of opinion outside of California had been on their side, I have no doubt that the court would have looked at opinions and realities in other states.

In the end, it’s very sad that the court has chosen to take this route. It is going to be necessary for those who believe in homeschooling to work to get this opinion de-published, overruled, or questioned. We also need to prepare for other appeals in other cases. We should also consult our legislators and try to get them to change the California law to expressly allow homeschooling. If all of this fails, we may need to undertake an initiative to amend the California constitution to provide an express recognition of the right to homeschool. The Pacific Justice Institute and the Homeschool Legal Defense Fund are already involved in these and other efforts to patch this “leak in the dam” and secure the right to homeschool in California. The governor of California and other public officials have been very supportive of the right to homeschool. This is a fight that can be won if approached properly. But until legal education begins producing more lawyers who believe in the fundamental right to homeschool and know how to argue for it, this right will always be in jeopardy. This is why law schools like Trinity are so important.

UPDATE: The Court of Appeal has vacated the original opinion and decided to rehear the appeal. This is great news. Now friends of the court like PJI and HSLDF should have an opportunity to file briefs and make sure that the legal arguments are fully presented to the court. While little is known about the case, it appears that did not happen last time around.