No Constitutional Right to Home School?

    The California Court of Appeal has ruled that the portions of the California Education Code that require children to be educated in either a public or private school, or instructed by a tutor possessing state-certified teaching credentials do not violate the constitutional liberty interest of parents to rear their children.  A 1950s California Supreme Court decision had upheld the validity of the statutory requirement in a different context, and that opinion was cited approvingly and extensively by the Court of Appeal.  Pierce v. Society of Sisters does not apply, said the court, because Pierce, in dicta, expressed the view that a state had valid authority to compel children to be educated in some school.  But do states have that authority?

    Yoder struck down Wisconsin's compulsory education statute as applied to the Amish, and it would seem that many home schoolers have deeply rooted religious objections to the secular indoctrination that characterizes public schools, and may not be able to afford private schools.  At least after Employment Division v. Smith such parents might well have a "hybrid" claim -- one that joins the liberty interest in rearing one's child to a free exercise claim.  Smith, of course, left Yoder  untouched. 

    Even if a parent lacks religious conviction, the question of the proper level of scrutiny remains.  The Pierce  dicta may only suggest that Court's view that a compulsory school requirement would survive strict scrutiny.  But would it?  Does any state have a compelling interest in requiring that home schoolers hire a tutor with teaching credentials?  Given the poor quality of a lot of instruction inflicted by people with those credentials, one is entitled to wonder.  And even if this constitutes a compelling interest of the state, surely there are less restictive alternatives available to ensure that the cognitive development of home schooled children is on a par with that of children in the public or private system.  Standardized testing, anyone?  Given the appalling levels of achievement and knowledge of the products of the conventional system this should not be difficult.  (The first link in the preceding sentence illustrates the abysmal performance of the Califorina educational system; the second reveals the appalling lack of basic knowledge possessed by 17 year old kids.  Examples: less than 50% knew the Civil War occurred between 1850 and 1890; only 50% had any idea what the Federalist Papers were, a third had no idea that free speech was a Bill of Rights guarantee.) 

   A spokesman for the teachers' union says he's happy with the ruling.   No doubt.  Does he know when the Civil War occurred?   

Comments

[merevaudevillian]

Curiously, this opinion seems to run against recent federal opinions on the matter. For instance, the First Circuit in Parker v. Hurley emphasized that if parents disagreed with the curricular content of public schools, they were free to participate in the political process to change that curriculum; the district court had suggested homeschooling as an alternative to avoid curricular disagreement. In Morse v. Frederick, Justice Thomas cited homeschooling as an alternative to parental disagreement with the public schools.

Of course, in these other cases, courts were emphasizing the alternatives of parents in order to suggest that the public schools' curriculum did not violate the First Amendment; in this California case, the court was emphasizing the improper remedies taken by an allegedly abusive family. I wonder if the context matters.