Why a California Court of Appeal Ruling Threatens to Make Home Schooling Illegal

By VIKRAM AMAR AND ALAN BROWNSTEIN
Friday, Mar. 14, 2008

Late last month, a California Court of Appeal issued a ruling that might have profound implications for the state's home schooling movement. The court in Rachel L v. Superior Court decided that under California law, every school-age child (subject to a few exceptions that are not relevant here) must attend a public full-time day school unless the child is enrolled in and attending a private full-time day school, or being taught by a tutor who holds a valid state teaching credential.

Home schooling does not constitute a "private full-time day school." Moreover, many (some estimates suggest over 100,000) of California's home-schooled children are being taught by persons who lack a valid state teaching credential. Accordingly, the ruling has prompted a great deal of anxiety among members of the home schooling community.

The Court Rejects the Claim of a Constitutional Right to Home Schooling Without a Government Teaching Credential

The parents in Rachel L. argued that there is a constitutional right to home school children, even without the valid teaching credential the statute requires, because the state and/or federal Constitution should be read to protect parental control over how and where their children should be educated. However, the court rejected this constitutional claim, citing a plethora of language from prior rulings to the effect that states may insist not only that all children receive an education, but also that the education they receive must satisfy reasonable state standards.

We do not necessarily disagree with the constitutional analysis embodied in Rachel L. Indeed, assuming the court there was accurately depicting and quoting past rulings, its constitutional bottom-line seems unassailable. The court employed a "rational basis" inquiry, under which the relevant constitutional question is merely whether California's decision concerning the mandatory education of children living in the state is rational. And certainly the state's statutes, as written, pass that minimal test.

Nonetheless, some of the distinctions the state law draws, while "rational," seem troubling. For instance, one reason the court gave to potentially explain why California does not permit uncredentialed home schooling is that the cost of monitoring uncredentialed tutors would be significant. But the state is also saving a significant amount of money in not having to educate those very same home-schooled children (or at least the vast majority of them who couldn't afford private schooling) in the public schools. So, on balance, cost savings are not a very normatively attractive basis on which to reject home-schooling freedom. Even if monitoring the quality of the education a home-school child received cost some money, it would doubtless be less than the cost to the state of educating the child in the public schools.

Similarly, the state's decision to permit "private full-time day schools" to use uncredentialed instructors, at the same time that it requires that home school tutors must have a credential, may be "rational" (and was so viewed by the court), but it is also somewhat arbitrary. Granted, there is a basis for the distinction: Private schools have a monetary incentive to provide a quality education, and public oversight of (even) hundreds of private schools is more manageable than public oversight of hundreds of thousands of home school sites. Yet so crudely distinguishing between private schools (even small ones) and home schools may not seem wise or fair.

Moreover, if the California government really doesn't think home schooling works in many cases, then it could insist on home school students passing certain standardized tests every so often, in order to be permitted to continue on the home school track. That approach might be more tailored to legitimate pedagogical concerns, and still not be unduly costly.

The Liberty Interest that Counsels in Favor of Families' Ability to Opt Out of the Public Schools, Including Through Home Schooling

More generally, from a policy perspective - or should we say, a policy perspective with a constitutional dimension -- issues relating to home schooling must be evaluated in a broader context, not in isolation. Notwithstanding all of the positive attributes and accomplishments of public schools in the past century, and the important social objectives furthered by compulsory education laws, there is a cost to personal liberty intrinsic in the operation of public schools. The value of that liberty interest counsels in favor of some mechanism that allows families to opt out of what they consider to be particularly objectionable aspects of the public school experience. That liberty interest properly belongs on the policy scale, although there is certainly considerable room for debate as to exactly how much weight should be assigned to it.

Also, from a more pragmatic perspective, the functions performed by the public schools become increasingly more difficult to accomplish when no opt-out mechanism exists in any form. Contentious disagreement about public school programs can reach a point that is debilitating for the entire system. We recognize that there is no way to avoid some degree of conflict when parents from diverse backgrounds clash over the content of what their children are taught in school. But those conflicts are only exacerbated when no outcome but the unconditional surrender of the losing side will be accepted by the winners. In an important sense, then, opt-out mechanisms reduce the cost of compromise.

The opportunity to send one's childen to a private school is a constitutionally protected opt-out mechanism, but it is obviously one that is financially unavailable for many families.

Other alternatives exist. Each of them, however, can be legitimately challenged for a variety of reasons. Government-subsidized private education through vouchers or direct grants is one possibility - but we will not even attempt to summarize the range of constitutional and policy issues that possibility implicates. Home schooling, of course, is another alternative.

The Alternative of Recognizing a Parent's Right to Opt Out of Part of the Public School Curriculum

Allowing parents to exempt their children who attend public school from discrete parts of the public school curriculum is yet another possibility. However, in most cases, courts have been unwilling to recognize any constitutional right on the part of parents to withdraw their children even from limited aspects of the public school program. Most recently, in Parker v. Hurley, decided just six weeks ago, the United States Court of Appeals for the First Circuit rejected the free exercise and substantive due process claims of parents who wanted to exempt their elementary school children from being read to from a book that "affirmatively endorses homosexuality and gay marriage" on the ground that such an endorsement conflicts with their religious beliefs.

Significantly, the plaintiffs in Parker made it clear that they did not dispute the school's authority to control its curriculum, nor did they seek any alteration of that curriculum for the student body as a whole. They sought only to excuse their children from this part of the public school program, and requested no other relief.

In rejecting the parents' claim, the court concluded that the parents and their children did not suffer any constitutionally-cognizable harm. While the children were exposed to materials that expressed ideas their parents found morally objectionable, the court reasoned, the students were not required to affirm or accept those ideas. Moreover, the students were not required to extensively read or deal with materials discussing same-sex marriage or gay rights. Thus, in the court's eyes, the relatively small amount of attention paid to these materials in class simply did not amount to a constitutional injury. Whatever relief plaintiffs might desire from the school system's curricular choices would have to be sought, the court said, through "normal political processes," not constitutional adjudication.

As an educational matter, we have no problem with the pedagogical decision -- made by the school district in the Parker case - that is, the decision to include in the curriculum a book that positively describes same-sex marriage. We would support children learning about the diversity of American families - including inter-racial marriages, inter-faith marriages, and same-sex marriages. Yet the legal question posed by the Parker dispute is more difficult to resolve.

When the Parker case is read alongside California's Rachel L. case, and these decisions are considered in light of the constitutional limits on, and the political resistance to, government funding of religious private schools, we begin to wonder about the following question: Shouldn't there be some opt-out opportunities, in at least some circumstances, that are accessible to families of limited economic means who cannot afford private school? We offer no concrete recommendations here. One of us, Alan Brownstein, has written at length raising constitutional and policy questions about government funding of religious schools. The other, Vikram Amar, has serious questions about the relative quality of home schooling.

We note only that a public school system without any means of opting out of its programs imposes significant costs on the liberty interests of families and on the ability of schools to work out their curriculum. We should be careful about imposing those costs and think seriously about possible mechanisms that might mitigate them. Those mechanisms may turn out to be more limited, and subject to far more control, than parents seeking an exemption from public school education may desire. But the fact that these costs cannot be eliminated does not justify a failure to consider ways to reduce them at least to some extent.


Vikram David Amar is a professor of law at the University of California, Davis, School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher. Alan Brownstein is a Professor of Law at the University of California, Davis, School of Law.

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