California Court of Appeal to Rehear Home Schooling Case

  The California Court of Appeal has agreed to rehear In re Rachel L. , the case in which the Court of Appeal initially decided that there is no constitutional right to home schooling.  My earlier post on this case is here.    Eugene Volokh's characteristically thoughtful evalauation of the merits is here.

  I agree that Pierce v. Society of Sisters does not stand for any constitutional right to home school, and that religiously-motivated home schooling stands on a more protected footing.  See Yoder.   But I think it's dangerous to rely on Pierce to dismiss completely the claim that non-religious home schooling is constitutionally unprotected.   The scope of unenumerated parental rights has broadened since Pierce and the cultural place of home schooling today is far different from what it might have been in 1925.   One might treat the cultural dissent that motivates home schoolers today as roughly analogous to the cultural dissent that motivated the parents in Pierce to seek out private education, while the Pierce Court regarded home-schooling then as rooted in ignorance and sloth.   All that said, I share the sentiment that some skepticism is appropriate when parents seek to establish a constitutional right to control the fate of a third party, their child.  The weight of that right ought to depend, to some degree, on the age and maturity of a the child.  It is much easier to recognize a parental home-schooling right with respect to a six-year old child than it might be with respect to a 12-year old who states that she wants to go a conventional school.   The consequences of the parental choice are just as significant to the six-year old as the 12-year old, but surely more deference to parental choice is due when the child is too young to make independent judgments about his or her welfare.