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March 07, 2008

A Constitutional Right to Homeschooling?

The recent homeschooling case is still getting big headlines here in California and I even overheard some people discussing it in the hallway. After yesterday's post, I wanted to emphasize one excellent point that both Michelle and Darleen pointed out. Whatever the immediate effect on homeschooling parents (and I want to point out that the HSLDA and I come to the same statutory conclusion with regard to the private school exemption), the constitutional issue here represents a long-term problem for parents.

Part of what has so alarmed people is this conclusion by the appellate court:

"Parents do not have a constitutional right to home school their children," Justice H. Walter Croskey wrote in a Feb. 28 opinion for the 2nd District Court of Appeal.

Noncompliance could lead to criminal complaints against the parents, Croskey said.

Because of that conclusion, the case was decided entirely on statutory grounds. When I went through the case the first time, I read right through that part without pausing. The justice is correct as far as precedent is concerned. No court has recognized a constitutional right to homeschooling. The nearest we've come to that is a Supreme Court case recognizing that parents and children have a constitutional right to education outside of the public schools:

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

But the Court has never tested just what alternatives to public education the State must allow. It hasn't been an issue because most states have legislation specifically providing for numerous alternatives including homeschooling. California, of course, has to be different and that makes this is a very big deal. California law does not provide an explicit homeschooling option. Parents have relied on various interpretations of the existing options to get away with homeschooling and the state Department of Education--for the last 54 years, at least--has looked the other way.

But back up a minute. If there is no constitutional right to homeschool one's children, the government could conceivably ban homeschooling entirely. I'm sure (and this was Darleen's point, too) that certain constituencies are salivating over the very possibility.

Unfortunately, I'm not convinced that there is a constitutional right to homeschool one's children. So far I haven't seen a very convincing argument for it and for that reason I believe the best solution to this issue in California is legislative. On the off chance that someone wants to take up the challenge, here are my questions about a constitutional right to homeschooling:

(1) Who possesses that right, the child or the parents?

(2) Where in the U.S. Constitution (or, if you like, the California Constitution) can that right be found? EDITED: This would be more accurately phrased: "What part of the U.S. Constitution forbids the government from interfering with the right to homeschool?"

(3) If there is a constitutional right to homeschool, why isn't there a constitutional right to gay marriage?

(4) Is there a corollary constitutional right to not educate your child if that is your choice?

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posted by Gabriel Malor at 12:41 PM

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