California Decision Has Roots in Age-Old Bias against Homeschooling

Published May 1, 2008

Though California’s constitution guarantees citizens freedom, independence, and privacy, the state regularly invades those rights–albeit with the consent of the governed.

But don’t tread on homeschoolers.

That’s what a California appellate court did with a February 28 ruling that parents have no federal or state constitutional right to homeschool their children and that they risk criminal prosecution if they do. The uproar was immediate and widespread.

The state’s top school official, many state legislators, and even Gov. Arnold Schwarzenegger (R) flocked to support homeschoolers. Hundreds of thousands of people signed petitions protesting the court decision.

This led to the court’s unusual agreement on March 25 to reconsider its ruling.

Homeschool Options

Under California law, attendance at state-sponsored public schools is mandatory for children ages six to 18 unless they attend private schools or are tutored at home. Private school teachers need only be “capable of teaching,” but private tutors must be fully credentialed by the state.

At least 18,000 of the 166,000 children currently homeschooled in California are doing so under parental paperwork qualifying the homes as private schools. Other parents instruct their children at home by affiliating with a private school located outside the home. Until cast into doubt by the recent case, these arrangements were viewed as consistent with California law.

Strange Case

There’s an old legal saying that bad facts make bad law. That was certainly true here. The case arose in juvenile court, which had supervision over three of the eight children in the family due to alleged “physical and emotional mistreatment” by the father. In such cases, the juvenile court has the power to limit parental control as necessary to protect the children, including ordering parents to send them to public schools.

The children involved were officially students at Sunland Christian School, under the school’s home-based independent study program. Their mother, who is not a credentialed teacher, taught them under Sunland’s supervision.

Evidently anxious to get the two youngest children out of the home during the day, their specially appointed lawyer asked for a court order requiring the parents to send them to public school.

The juvenile court refused to issue one. Though it found the quality of the homeschooling “lousy,” “meager,” and “bad,” the court ruled the parents had a constitutional right to homeschool their children. The appellate court reversed the ruling.

Disturbing Precedent

The appellate court could have, and should have, limited its decision to cases in which the juvenile court has supervisory powers over abused children–called “dependency” cases under California law. It didn’t do this. Instead, it condemned homeschooling in language sweeping enough to ban it and criminalize it in any home, abusive or not.

Particularly chilling is the court’s approval of a homeschooling opinion issued by a lower court in 1961, Shinn v. People, in which local school officials repeatedly sent social workers to a home to build a case for “habitual truancy.” The police arrived too, and criminal charges were brought against the parents.

The children had to submit to forced psychiatric examinations. The psychiatrist opined homeschooling was “abnormal” and harmful to children.

The children were made wards of the court because they were allegedly “in danger of leading an idle, dissolute or immoral life” because they weren’t attending a public school.

Court Ignored Facts

The parents in the Shinn case argued the proceeding was illegal because there was no evidence of any inclination toward crime or misbehavior by the children, and no allegations of parental abuse or lack of supervision. “We see no merit in this argument,” the court said. It ordered the parents to stop homeschooling their children and send them to public school.

Several homeschooling advocacy organizations will be petitioning the court this time around for permission to submit amicus briefs to help the court make its decision. These include, among others, the California Homeschool Network, the Christian Home Educators Association of California, Private and Home Educators of California, the HomeSchool Association of California, and the Virginia-based Home School Legal Defense Association.

But in granting the rehearing, the court specifically invited briefs from likely opponents of homeschooling, such as the Los Angeles public schools and California’s teacher unions.

Times–and political attitudes–have obviously changed since homeschooling was declared “abnormal” in 1961. We’ll see just how much they’ve changed as this case proceeds.

Maureen Martin ([email protected]) is The Heartland Institute’s senior fellow for legal affairs.