According to LifeWay Research, 86% of adults surveyed in April agreed with the statement “Parents have a Constitutional right to homeschool.” While Constitutional rights are obviously not granted by popular opinion, I am happy to see that an ever-increasing number of Americans support the idea of homeschooling, even if many of these same people would limit this constitutional right they say they recognize with additional state regulations.
The Wall Street Journal’s MarketWatch goes on to write:
It seems the California appeals court now agrees. In a stunning move Aug. 8, the three-judge panel reversed itself, saying the state legislature has implicitly accepted homeschooling as legal. “We … conclude that California statutes permit homeschooling as a species of private school education,” the justices wrote in their unanimous decision released on Friday. MarketWatch
But to say homeschooling is “legal” is not the same as saying it is Constitutionally protected. The court’s decision, while significant, is not a complete reversal because it still only recognizes homeschooling within the parameters of the law. It is now clear to all that it is perfectly acceptable under California’s education code to set up a homeschool as a private school by filing the appropriate affidavit, but the way for future infringements has also been cleared.
Along with ruling that CA law does indeed allow for homeschooling, the court also opined that “The state is responsible for educating all California children.” And references another California court case, Butt vs. State of California (1992).
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. Opinion on rehearing (pdf, emphasis mine)
I don’t believe we possess an “absolute right” to anything, if that means that the state cannot intervene when there are clear violations to the health and safety of dependent minors, but thus relegating the direction of a child’s education to a constitutional liberty which must yield to state interests is troubling.
Then, the court brings in judicial scrutiny, suggesting that the combination of a parental liberty interest claim combined with a free exercise claim necessitates the application of “strict scrutiny,” the highest level of judicial scrutiny which puts a heavy burden on the state.
To satisfy the test of strict scrutiny, a state must establish: (1) that the law in question is supported by a compelling governmental interest and; (2) that the law is narrowly tailored to meet that end.
California has specifically argued that “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) Ibid.
I do not disagree that a family can be forced to place their children in a monitored educational environment if a history of abuse has been proven, however, the argumentation leading up to this point is troubling. A compelling governmental interest is normally reserved for things like threats to national security and protecting the lives of multiple people and in these circumstances, other constitutional constraints may be limited.
In the closing of this section of the opinion, education is raised from a state interest to a compelling state interest.
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 homeschooling in California, additional clarity in this area of the law would be helpful. Ibid.
Stopping short of directing the legislature to provide more oversight of homeschools, the groundwork is nonetheless established. If the state has a compelling interest, it generally not only may intervene but must, thus it seems this language may eventually necessitate further restrictions placed on CA homeschoolers.
homeschool homeschooling home education re Rachel L California
Principled Discovery is a place to stop and discuss news and information related to faith, family and particularly education. Pour yourself a cup of tea and join the conversation! 
The commerce clause actually, may be the Constitution’s most direct claim to a compelling interest in education. Gotta keep the economy revved up with workers schooled for employment, right?
AAAHHHH!!! Please don’t do that to me.
Now, if that were the case, however, could we charge the state with protectionism, like the court ruled against New York when it tried to ban the sale of milk produced outside New York? Probably only would work if we were moving between states.
Sure, except if you succeed, then you wind up with the feds in charge of education instead of each state!
Well, I think if you are invoking the Commerce Clause, the feds are already involved.
Exactly!
So I figure there’s no way to win education freedom by arguing over whether the state has a compelling interest in it. The state will win. Thus I prefer arguing that well-educated, employable and publicly valuable citizens are what’s important, not how we get them!
Oops, I should clarify that when I say “state” without specifying, I usually just mean “the government” federal or state.
Yes, well, I am well aware that there is a sharp divide between the reality of how courts view our rights and the state’s interests and how I view these things. Whenever we talk about rights in court or before a legislature, I feel like we are just asking for someone to call the bluff. I really don’t want any of these cases ever to make it to the Supreme Court, because I think the little it has said that is relevant indicates that it would support testing measures, etc.
The real “victory” needs to be in public opinion and in our legislatures. We aren’t likely to find victory in the courts at this point, beyond perhaps some protection of the ability to homeschool, but maybe not even that much.
But I won’t give up on my ideas of liberty and rights quite so easily, either.
Related to the comments about interstate trade, an Irish citizen is challenging German homeschooling laws under EU employment regulations by arguing that it puts an unfair restraint on her family’s moving freely in the EU in order to seek work.
With respect to US examples, I tend to fall back on kitchen metaphors. Everyone agrees that nutrition is important for children’s development. But you don’t see advocates for government kitchens. There are health inpections for *commercial* food production but not for home cooking.
We do have absolute rights and among them are life, liberty and property. What we do not have is the right to violate another person’s individual rights. Doing so is a criminal act. That is why the state to which we have delegated the protection of our rights can step in to punish theft, assualt and battery, and murder.
The fact that we have allowed the federal government in particular to claim interests that are contrary to the constitution does not mean that we do not have these rights. It means that we have not properly understood nor defended them.
I agree. That is why I qualified my statement about absolute rights if that means that the state cannot intervene when there are clear violations to the health and safety of dependent minors.
I don’t disagree with the opinion of the court that it can intervene when the health and safety of children is of concern, and that the lower court had the ability to bar this family from homeschooling if abuse was indeed proven.
It does not seem to me that they needed to go to the length they did, defining the direction of a child’s education as a “constitutional liberty interest.” It can be a right, like the one to liberty, and still be limited when a crime has been committed. Just as I lose my liberty if I rob or murder and end up in jail. Courts do not need to redefine my freedom of movement to a constitutional liberty interest in order to put me under house arrest. Why should they need to in order to place a child in a school situation when a history of abuse has been proven?
I was trying to conceive of life OR liberty OR property as “absolute” but, nope, can’t do it. Elisheva, I know you can think of one or more exceptions to every one of these in pour current system of government, where your right being absolute would violate mine, and vice versa?
See…this is what troubles me. What do we mean by “absolute?” This is sort of what I was getting at over in Spunky’s comment box. Does that mean that it is basic, with the duty of government being to protect it? So that my right to property is so foundational to the American system that if you steal it, the state is obligated to apprehend you, return it and punish you or reform you in some way? If that is what we mean by absolute rights, than I agree.
But “absolute” seems to invite something stronger. Something that cannot be “usurped.” It seems to suggest that my right to “raise my children as I see fit” would include beating the life out of them if I chose. After all, Roman fathers had that right. Or that no one could ever be imprisoned, because if anything is an infringement on your right to “liberty” that would be.
Maybe I’ve talked to too many anarchists in my life, but the more people talk about absolute rights, the more anarchy comes to mind. But I’m not sure I understand exactly what is even meant by the terminology for most people tossing it out.
The qualification Elisheva made is that we have the right to life, liberty and property as long as we are not infringing on someone else’s right to life, liberty or property through force or fraud.
Children are dependent on parents, and our inherent parental rights should guarantee that we can care for and educate our children as we choose, but not if we are causing bodily harm and mental anguish. THEN the problem becomes defining such, because some nimrod will want to claim that practicing one’s religion in one’s home can cause mental anguish or expecting kids to do yardwork and help with house cleaning violates child labor laws.
We have to err on the side of liberty, or we are going to need legislation to cover every possible parameter of family and private life, and nothing will be sacred.
Sunniemom, isn’t that exactly where it seems we are heading?
It certainly seems so, doesn’t it? Somehow folks have forgotten that true diversity is only possible when liberty reigns supreme. They have this idea that diversity means bringing everyone together and squeezing them through a politically correct tube into a mediocre but consistent product. Yuck.
They’ve convinced themselves it is compassion that drives them, but as a matter of fact it is pure laziness to not be able to deal with folks who have different lifestyles and beliefs. Make us all the same and we won’t have to think anymore. Our new national symbol will be the couch potato.
We’re in Florida so I haven’t had much electricity for the past day or two, and no time to browse my favorite links but there’s wonderful ethics and philosophy of government material exploring the angle of “competing rights” not as my rights versus your rights or rights versus wrongs, but literally deciding between “rights” when all possible options are rights (none are wrong.)
Hard work and happiness, say, are two rights we can claim and exercise, and also both are rights and neither are wrong, for a broad example off the top of my head (before the power goes out again!)
Does that make sense? Both are right in that both are desirable and can be chosen and exercised even to exclusionary extremes, yet neither is absolute or fully attainable without mitagating against OTHER right choices. Because that is just reality, not that government would punish us. . .
So the Golden Mean and the Golden Rule remain remarkably relevant when we consider “rights”?
Mitigate.
I was wondering how you were doing down there. It is interesting how much more personal weather and other news reports become when you “know” people in those areas. It isn’t so distant anymore.