More on the California Court Saying “No Constitutional Right to Homeschool”
Tag(s): Constitutional Amendment • courts • law • parental rights • supreme court
Less than two weeks ago, a California appeals court declared in In Re Rachel L. that the vast majority of parents in California may only choose between public and private school because they are unqualified to teach their children. Tens of thousands of children in California are currently homeschooled, but this fact was unconvincing for these three judges, who boldly proclaimed that “parents do not have a constitutional right to home school their children,” unless they are certified by the state to teach.
In so ruling, the court declined to follow the Supreme Court’s 1972 decision in Wisconsin v. Yoder and its 2000 ruling in Troxel v. Granville, relying instead upon two antiquated lower-court decisions. The California court refused to recognize parental rights as fundamental rights (even though the Supreme Court did in Troxel), opting instead for the more lenient, pro-government standard of “reasonableness.” According to the court, homeschooling could not be a legitimate educational option because it would place “an unreasonable burden on the state to have to supervise each and every home in which a child was being educated.”
How do you like that?
The danger of Rachel L. is it presumes that it is ultimately the state’s duty to ensure that the child’s right to “adequate” information is respected. It makes the dramatic shift from parents being presumed to be doing what is best for their children to parents having to prove to the state they are doing what is best for their children.
This presumption is evident from the language of Rachel L. itself as well as the two cases the California court relied upon. In 1929, the New Hampshire Supreme Court declared in State v. Hoyt that because the state bears “the burden of reasonable supervision” of education, parents must choose “educational facilities which do not require unreasonable supervision” by the state. A California Appeals Court used this same language in 1952, when it concluded that children must be educated in traditional public or private schools, subject to state standards and regulations: anything else would “take from the state all-efficient authority to regulate the education of the prospective voting population.” (emphasis added)
Parents, not the state, have the knowledge and the responsibility to decide whether their children would best benefit from public schooling, a private school, or even learning at home. Unless abuse has been proven, parents are presumed to be acting in the best interest of their children.
The Supreme Court affirmed this important idea in Parham v. J.R. when it said: “The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.”
The anti-child, anti-parent statists certainly affirm the child’s lack of “maturity, experience, and capacity for judgment” but they solve that problem by inserting government to make those “difficult decisions.” Who is the ultimate loser under this scenario? Ultimately it will be children because children need their parents.
Rightly, everyone is up in arms over this case. The Home School Legal Defense Association is working to drive a petition to get this decision “depublished” in California. James Dobson used his radio program on Friday to alert his listeners. Governor Schwarzenegger declared that “parents should have the right to decide what’s best for their children.”
While the issue is homeschooling, the heart of this case goes to the statement the Governor made. Who decides? Mom and Dad or the state? Do parents have a fundamental right to direct the upbringing and education of their children or does the state get to determine what they think is in the child’s best interest?
While the SCOTUS has consistently ruled in this question on the side of children and parents, there are reasons to worry that this would not be the case with today’s court.
Troxel was the last parental rights case from the court and it was decided in favor of the parental rights doctrine. The four justice plurality decision included Chief Justice Rhenquist, and justices O’Connor, Breyer, and Ginsberg. Surprisingly, Scalia rejected the parental rights doctrine because it is not explicitly enumerated in the Constitution. If Chief Justice Roberts and Justice Alito both hold to Scalia’s view than the parental rights doctrine is in trouble. And can we really count on Breyer and Ginsberg to remain on the side of children and parents?
If Rachel L. were to eventually make it to the Supreme Court of the United States there is a high chance that parental rights would lose and nearly 80 years of good decisions would be undone. It would be open season for the It Takes a Village crowd (call them The Village People if you like) and their armies of state sponsored super-nannies.
Bottom line is we should not be surprised by a lower court decision like Rachel L. and we should expect more decisions against the role of parents in the lives of their children because The Village People are on the march. We need to do what Scalia all but explicitly invited us to do in Troxel. We need to move the time honored Constitutional parental rights doctrine from an unenumerated right to an explicitly enumerated fundamental right.
We need a Parental Rights Amendment. We need it not because we love parents but because we love our children and our children need their parents.
This article makes the issue so clear! I will be forwarding this to my family and friends.
As a side note, I appreciate what you all are doing! I have heard a lot about this movement, but wasn’t concerned until I read a news article this morning. The article discusses forced marriages in Britain (which are tragic). What is more tragic, though, is the fact that the article traces the source of the problem to the “patriarchal system where parents believe they know what is best for their children.” I don’t think it is a coincidence that such stories are being circulated just now. There is a battle for public opinion as well as court opinions and you all are holding the line on both fronts. God bless!
Mar 11 at 9:26 am
Has anyone ever seen the movie I-Robot where the governments have robots to protect people from themselves; or has anyone forgotten the book “1984″ by George Orwell. Better yet have we already forgotten Hitler, or Stalin just to name a few.
Where is America headed? If we allow our government to take control of our children and the holy sacnity of the family unit, which in today’s world needs to be promoted more than anything, then our “American Dream” of a family will be destroyed.
We will be heading directly toward a socialist or communist government, and everyone will be affected even those people without children and people who do not homeschool.
If this loss of parental rights occurs, then we as citizens would be forced to see that this is just another step toward our government to gain complete control over everyone in this country. What better way than forcibly brainwashing our children–the future voters, lawmakers, leaders of our country. America will no longer be called the land of the free.
I am a teacher who is currently working on a Master’s in Education. Much more is taught in public schools than just the three “R”s. If you’ve never heard of the term “the hidden curriculum” then whether you are parents or not you need to look it up right now.
We (my generation/peers) have not forgotten the beginning of the constitution yet . . .
“We the PEOPLE…..”
As parents, both my husband and myself, would gladly give our lives without a moments notice to do everything possible to protect our children. I believe in my heart there are many, many more loving and dedicated parents than there are bad ones here in the U.S., and it is this large number of parents with a love so much more powerful than anything a government can take away that will band together on this issue unlike anything we’ve seen in years.
It just hasn’t made major headlines yet, but as we spread this news it will. We as Americans and as Parents have a duty to God and our country to educate others on this issue that many politians are trying to slip under the door very quietly without us knowing it is happening.
I’m not one to voice my opinion very often, or even enter into political discussions voluntarily. I’m speaking out on this subject because of the gravity of its importance to our nation as a whole. This is serious, and we must protect our families as well as the future families of America.
Mar 11 at 1:05 pm
Very clear and well written article. Thank You
Mar 12 at 4:30 pm
[…] Trackback Post a comment — Trackback URI RSS 2.0 feed for these comments This entry (permalink) was posted on Wednesday, March 12, 2008, at 3:33 pm by Pastor Kurt. Filed in Christianity In Crisis, The Moral Decline. […]
Mar 12 at 4:34 pm
I suppose a village could be relied upon in the traditional sense - that is, a small group of people who, though not blood-related, have known one another for time out of mind and share the same culture and values. Show me a town like that these days and you’ll find me envious.
The truth is that there are no “villages” anymore. We are too populous, move across country, and too often leave our respective cultures behind to buy into commercialized identities and bigger houses; and these houses are situated in gated communities where we know none of our neighbors. (Being acquainted is not the same as knowing someone. How often have we heard the neighbors of an exposed killer or sexual creep exclaim that they had known him for years and never imagined he could do such things?)
There are no longer any reliable villages in America, so how about relying on the system we’ve had since the dawn of time - parents. Also, may I point out that if ‘mom’ were free to oversee her children there would be no question of relying on the village. These days ‘the village’ has its iPod embedded in its middle ear and wouldn’t be able to hear my daughter calling for help if she were drowning, so I’ll see to her, tyvm.
I actually grew up in a ‘village,’ where my friends’ parents felt justified in taking me to task (and knew my family enough to feel justified in doing so) when I misbehaved. These days they would likely be sued if they tried it. No, those days are long gone. Best to work with what we still have, and protect our children as best we can.
It is a sad sad day when this government, which was founded for the pursuits of liberty, begins to claim ownership over our children. The personal gives way to the impersonal, common sense to court judgments, fundamental rights to legal loopholes.
Mar 12 at 6:23 pm
I agree with Justice Scalia. The Constitution says absolutely nothing about a parent’s right to educate their own children. The flip-side of that is that the Constitution also does not deny the right of parents to educate their children nor does it allow that the state has the right to deny parents’ right to educate their own children.
I believe, however, that - while not having the force of law - the Declaration of Inependence spells out the founding fathers’ intention…that government shall not create any law denying the innate rights to life, liberty and the pursuit of happiness. This would clearly fall under the right to liberty, where we, as parents, are free to choose how our children are to be raised and educated.
Mar 13 at 1:05 pm
How many more of our rights are going to be attacked? Legislating against home schooling is absurd and totally unconstitutional. When are we going to wake up? Who wants their children in public schools that teaches our children things one doesn’t want their children taught? Who wants to place our children in harms way. There are more and more school shootings and other types of violence all the time.
Mar 13 at 7:58 pm
It is simple, hold our legislature, governor affiliated party, and congress responsible for not passing specific laws protecting our rights as parents to educate our children. What ticket did the judges get appointed by; Democratic or Republican? That knowledge and communication along with organized vote “out” the party responsible will change the tune of our judges to serve their own personal and political agendas. We collectively have 160,000 families in California alone. We can start with the Presidential Party opposing home schooling and work down to the state and county level. Shame, on the public teachers associations; putting self interest above our children, shame, shame. We have over 30,000,000 home school children in the world and we are growing. If politicians want to keep their jobs they need to act, this passion of parents will NOT diminish over time.
Rallying and assembly of the public is needed with media coverage. It is not, should we rally, it is when and where we will rally. This will take time to plan, I move all who will listen to meet at our California State Capital on May 25, 2008 at 9am Memorial Day to tribute those who have laid the ultimate sacrificed for our freedom and demand that the state law makers amend the state constitution to ensue that our children’s and parents rights are not taken lightly and we demand action to protect home schooling.
I will research each judge’s career and political affiliation to determine what political party is responsible for placing these judges in a position to tear away at the heart of families by pretending that the state or any one other than the parents would protect and lift up a child half as well as the parents. I WILL HOLD THE POLITICAL PARTIES RESPONSIBLE FOR LACK OF ACTION!
Mar 14 at 2:32 am
I have sent this information to everyone I know and will continue to work at getting the word out. I think it is also time to work toward another constitutional change;that being that all judges be required to run for office just like every other politician, instead of being appointed. I am sick and tired of them and the politicians who support them, promoting their own agendas within the court system!
Mar 14 at 11:02 am
I believe it is a mistake to go the Constitutional Amendment route.
The founders got it right when they gave limited powers to the federal government. We’ve all seen what happens when the feds go beyond those limits. Now, you want even MORE power to go to the feds?
What guarantee do you have that any federal amendment would be written to suit homeschooler needs? Recall how powerful the NEA is.
What guarantee do you have that an amendment would make it all the way through the ratification process? Remember, a failure of an amendment is a strike against homeschooling and emboldens our enemies.
What guarantee do you have that, even if a good amendment was passed and made it all the way through the amendment process, the courts would interpret it properly? The very same courts you sneer at (rightly so) in this article get to have the last say on it, or will just “reinterpret” it just as they have done with the rest of the Constitution. And any such reinterpretation, or any of the above mentioned failures, will have national scope.
No, the best way to go is to keep this entirely out of the federal arena. If one state has problems, at least 49 others are left alone. And California homeschoolers can “vote with their feet” and move out. No such action is possible with homeschooling determined nationally.
Californians should take this to Sacramento and bring an army of homeschoolers to the legislature. They should also remember that “the court has spoken, now let’s see them enforce it!” That is, noncompliance is a powerful tool to bring the ruling class to their senses. DO NOT bring this to the federal level.
Mar 14 at 11:27 am
I think it’s important to remember that free public school was rare when the constitution was written. Maybe people have forgotten that some of our greatest Americans were home educated.
Mar 15 at 5:24 pm
I will admit to not reading the article yet, but it disturbs me more that we homeschooling parents are first to say we have to get government involved in the matter, as in changing the US Constitution.
Mar 18 at 5:26 pm
Darryl,
Read the arguments for why that is the long-term answer.
Also, everyone should understand that the parental rights amendment does not “get government involved in the matter.” The parental rights amendment limits the power of government and does not grant government power.
This is a very important distinction… The U.S. Constitution in general does two basic things:
1) It grants powers to the federal government. See Articles I, II, and III as examples.
2) It limits the powers of government. See the first ten amendments as examples of limiting the power of government.
The parental rights amendment only limits the powers of government. It does not grant power to any government. If it did you would see a line like “Congress shall have the power to enforce this article by appropriate legislation.”
That quote is pulled directly from the 13th amendment which both limits the power of government and grants power to the federal government. So the 13th amendment is an example of a Constitutional provision that both limits the power of government (in this case allowing and/or sanctioning slavery) and gives power to the federal government (in this case the power to enforce the outlawing of slavery).
So the parental rights amendment that we are proposing will limit the power of government to ignore or destroy the fundamental right of parents.
The Supreme Court has consistently recognized parental rights as an unenumerated fundamental right. But lower courts are all over the map in this area. Additionally, as you’ll find under the Learn section of our website, there are reasons to believe that the Supreme Court may not continue to rule in this way. There are also threats at this time from lower courts in regards to enforcement of international law in this area. So our proposed amendment simply puts into the plain black and white text of the Constitution what has been an agreed upon right.
Historically, if limiting the power of government in this area is synonymous with “government involvement” than our government has always been “involved” here. So the debate isn’t whether the government should be “involved” in that sense, but to what degree. We propose that we stop the slow creep away from the parental rights doctrine by setting this important American principle into the clear black and white text of the U.S. Constitution.
Mar 19 at 11:13 am
Paul,
1. You should read through our full arguments (found in the Learn section of our site) before you arrive at that conclusion the conclusion of “not bringing this to the federal level.” It already is a federal issue and to act like it is not is to simply concede the right to those that oppose the child-parent relationship.
2. Read what I wrote above about the difference between granting power to the federal government and limiting the power of government. The arguments you raise were raised in the debates during the ratification process of the Constitution. I for one am glad we’ve got the Bill of Rights!! (First ten amendments)
3. The enemies of the child-parent relationship are on the march at the federal level. Our federal courts are trending away from the parental rights doctrine (officially recognized by the Supreme Court for nearly 100 years) and international law is slowly coming to more prominence at the federal level. As you know, state laws and state courts can be overturned by the federal courts. Efforts at the state level should be done and are good and needed but one court decision that ignores the time honored child-parent relationship undoes all of that.
4. You are right that bad judges can still ignore a Constitutional provision and no one can guarantee anything. Again, even though the courts regularly ignore the first amendment and its meaning, I’m still thankful we have it. It allows us to work politically to get good judges and legislators who will honor and follow it. Also, if lower courts ignore the provisions we have the opportunity to appeal to higher courts.
Thank you for your input and I hope that you will seriously look at the details of what is happening on the bigger landscape. It isn’t just what is happening in California. What happened in California is just a small example of the direction we are headed nationally if we don’t stop it.
Mar 19 at 11:34 am
Nice good blog!
Jul 5 at 1:02 am