Saturday, August 9, 2008

Good News for California Homeschoolers

For those of you in the homeschooling world who haven't heard the news yet--especially those of you who homeschool in California--some very good news came out last Friday.

The California Second District Court of Appeal published its final decision on the In Re: Rachel L. case, which was the case that threatened to outlaw homeschooling for parents not possessing teaching credentials. According to my reading of this story from the L.A. Times, it looks like the court decided that the status quo--that parents are permitted to file the paperwork to establish private schools consisting of their own households--has been affirmed. And since state law does not require teaching credentials for private school teachers, the court affirmed that it doesn't require teaching credentials for homeschool parents who have done the paperwork to establish their private schools.

I was particularly struck by this passage the Times quoted from the decision:
It is important to recognize that it is not for us to consider, as a matter of policy, whether home schooling should be permitted in California. That job is for the Legislature. It is not the duty of the courts to make the law; we endeavor to interpret it...
Now, I happen to think that this judge gets it here--at least on this point. There are plenty of judges in this country who relish the chance to rule on policy.

However, while this is rightly considered a great victory for the homeschooling movement, I still think there are some storm clouds on the horizon. It's pretty obvious from some other quotes that the judge thinks the lack of homeschooling regulations in the law is a problem, and that the Legislature needs to address it. From the Times story:
"Our first task, interpreting the law of California, is made more difficult in this case by legislative inaction."

To that end, the court said additional requirements for home-schoolers in other states such as standardized testing or home visits should be considered by the California Legislature.
And you know, there are plenty of people in this state who are going to be chomping at the bit to get the Legislature to do just that. So continued vigilance on the part of homeschoolers is definitely called for. (Especially since Tonya and I--who between the two of us, have a Minor in Music, a Bachelors in History, a Bachelors in Computer Science, a Masters in Library science, a whole bunch of experience in our fields, and a whole bunch of other coursework in miscellaneous classes--have no intention at this time of going back to school to get credentials.)

And there's still an open question about those who homeschool under the umbrella-program paradigm, where parents enroll in a school that provides some minimum of oversight while the parents teach the curriculum at home. My understanding is that the litigants in the In Re: Rachel L. case were homeschooling under this arrangement.

(Quick background: in California, all children must attend public schools unless they meet one of three "exemptions:" they must either attend a private school, or they must have a credentialed tutor, or they must belong to a school that assigns the curriculum and does the testing, but allows the parents to teach the curriculum at home. Most homeschooling falls under the first of these: the parents file the paperwork to establish private schools. But there are a substantial number of homeschooling families that operate under the third of these exemptions. These are often called "umbrella" programs. One of the arguments in the In Re: Rachel L. case is that the Sunland Christian School, which administered their umbrella program, was allowing the Longs too much freedom, with not enough oversight, to be kosher under the law. This argument doesn't appear to have been decisively settled; the court that originally made that argument is now no longer involved with the Longs.)

Nevertheless, even with all the above caveats, this ruling is still good news.

A PDF file of the text of the decision, courtesy of the LA Times story, is here.

9 comments:

Jarrod J. Williamson, Ph.D. said...

Frankly, the CA legistlature needs to make its intention more clear. A careful reqading of the law makes it appear that the parents in Rachel L. bypassed the intention of the legistlature while technically obeying the text of the law ... which is invalid.

It has been held since Blackstone that, essentially, the intention of the lawmakers is the law, the text notwithstanding.

“such construction ought to be put upon a statute, as may best answer the intention which the makers of it had in view.” [Matthew Bacon, A New Abridgement of the Laws of England, Statute I (5) (3d ed., 1768), cited in Berger, p.16, no. 52.](http://www.supremecourt.gov.ph/jurisprudence/1996/syllabus/jan/104528_syl.htm)

In Atkins v. The Disintegrating Co., 18 Wall. 272, 301, 21 L.Ed. 841, the court said: 'The intention of the law-maker constitutes the law. A thing may be within the letter of a statute and not within its meaning, or within its meaning, though not within its letter.'(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ok&vol=/supreme/1946/&invol=1946OK47)

Sadly, too many have been willing to circumvent the intention of the lawmakers because they felt they could get homeschooling in through the text of the statute. "Afterall, that's what the law actually says" is the supposed argument. And when the courts perform their constitutional function, i.e., interpret the intention of the lawmakers, and some don't like what the courts have concluded, the courts are called activist, just a bunch of men in black robes, guys trying to legistlate from the bench, etc.

The legistlature needs to be pushed to make the situation clear once and for all.

(BTW, for those prone to knee-jerk reactions, I support homeschooling.)

Arby said...

I sincerely hope, Mr. jarrod j. williamson, ph.d., that you support this approach in all areas of law, as there isn't a law written that someone, somewhere, is not technically obeying the law while violating the intent of the authors. If, as you claim, "the parents in Rachel L. bypassed the intention of the legislature while technically obeying the text of the law...which is invalid," the court's ruling should extend to the parents in the Rachel L. case, and not to the entire homeschooling comuunity.

Hall Monitor said...

This story made http://detentionslip.org! Voted #1 for school house news. Check it out for all the crazy problems in public education.

Jarrod J. Williamson, Ph.D. said...

Arby, you said, I sincerely hope, Mr. jarrod j. williamson, ph.d., that you support this approach in all areas of law,

Of course I do, as do you.

To do otherwise is to manipulate the law and to circumvent the will of the people's elected leaders.

You also said, the court's ruling should extend to the parents in the Rachel L. case, and not to the entire homeschooling comuunity.

Whichever way the court applies it seems, to me, to be within the legitimate Constitutional boundaries of their authority.

I happen to like the fact that the court reversed (sp?) itself. But the fact of the matter is that the legislature's intention, as expressed in the education code, does not appear to allow homeschooling.

Even Mr. Power, certainly a good guy, appears to concede in earlier posts, that the homeschooling in Rachel L. was through a loophole in the law despite the intention of the CA legislature.

The correct response is to demand that the legislature make themselves unequivocally clear, as well as the people make themselves equally clear.

... Unless we want to be the kind of people who want to operate within legal loopholes and like "judicial activism" whem it happens to swing to our liking.

Shamgar said...


It is important to recognize that it is not for us to consider, as a matter of policy, whether home schooling should be permitted in California. That job is for the Legislature. It is not the duty of the courts to make the law; we endeavor to interpret it...

Now, I happen to think that this judge gets it here--at least on this point. There are plenty of judges in this country who relish the chance to rule on policy.


I would have to disagree with you here. I think that particular paragraph is a HUGE problem. It clearly reflects the view of the state that your children belong to them, and what is done with them is really under their purview.

That is WRONG. Your children are YOURS, and it ought NOT to be up to the legislature as to whether or not homeschooling is "allowed", as if somehow you as their parent don't have primary rights over them, and primary responsibility for their well-being.

Ugh, that paragraph is just absolutely repugnant and disgusting.

Big Doofus said...

I agree with shamgar. I had the same reaction when I read that paragraph. My kids are MY KIDS until they are adults and move out on their own. If it wasn't for the fact that there are a lot of screwed up sperm/egg donors out there posing as parents, we wouldn't be waiting for the government to tell us how we are permitted to raise our kids.

Timothy Power said...

Well, after reading the comments by shamgar and Big Doofus, it looks like I need to "Revise and Extend" my comments, as it were....

I think my attention was focused on a different part of that paragraph than yours was. I noticed the part where the judge said "It is not the duty of the courts to make the law; we endeavor to interpret it...."

This caught my attention because so many courts have injected themselves into policy questions over the last few decades that many people see it as normal--even legislatures. This practice is a serious violation of the separation of powers, and undermines our liberty; so cases where the court chooses not to "make" "new law", even when it's obvious that they're tempted to and could get away with it, need to be recognized and acknowledged.

In a free country, it should be the job of the Legislatures--which are accountable to the people--to wrestle with questions of right and wrong, and to figure out questions of policy. The courts--which are unelected, and thus not directly accountable to the people--should not be ruling based on whether they think a policy is wise or unwise, or even if they think it is good or bad; they should only be basing their rulings on what is legal. Courts should not be setting policy, or "making the rules", since we didn't elect them.

What I found agreeable in that paragraph was not the phrase "that job [i.e., determining whether homeschooling should be permitted] is for the Legislature." What I found agreeable was the court's recognition that it was not qualified to restrict or ban homeschooling, given that the laws of the state (as widely understood) do not explicitly do so--even though, from the context, it appeared that the court was very unhappy about the law's silence on homeschooling.

Basically, the court restrained itself from making new law here, even though it appeared to want to--and even though many other courts would have gone ahead and done so. That's what I found noteworthy.

As far as our right to homeschool is concerned, I am on record as holding that it is a fundamental, natural, human right--one of those "unalienable rights" that Jefferson wrote about in the Declaration of Independence.

Is that a little better? :-)

Big Doofus said...

I wasn't disagreeing with your comments. And I agree with your thoughts on how important it is for the courts to realize their place when it comes to the law.

Jarrod J. Williamson, Ph.D. said...

Shagmar said: It clearly reflects the view of the state that your children belong to them, and what is done with them is really under their purview.

That is WRONG. Your children are YOURS, and it ought NOT to be up to the legislature as to whether or not homeschooling is "allowed", as if somehow you as their parent don't have primary rights over them, and primary responsibility for their well-being.


Have you head of the US legal doctrine of parens patriae? It says:

The parens patriae doctrine has its roots in English COMMON LAW. In feudal times various obligations and powers, collectively referred to as the "royal prerogative," were reserved to the king. The king exercised these functions in his role of father of the country.

In the United States, the parens patriae doctrine has had its greatest application in the treatment of children, mentally ill persons, and other individuals who are legally incompetent to manage their affairs. The state is the supreme guardian of all children within its jurisdiction, and state courts have the inherent power to intervene to protect the best interests of children whose welfare is jeopardized by controversies between parents. This inherent power is generally supplemented by legislative acts that define the scope of child protection in a state.
This quote is from this source

Is this some commie, left-wing invention of Hillary, or the eeeviiiil public school teacher's unions?

Nope. It started with English Common Law, was accepted and applied by the Founding Fathers right on through the Constitution and beyond.

From this source we learn:
Parens patriae relates to a notion initially invoked by the King's Bench in the sixteenth century in cases of non compos mentis adults. The actual term was first recorded in 1610 when King James I referred to himself as the pater patriae (father of the people) in relation to laws concerning the erection of a park, chase or warren. The parens patriae doctrine was gradually applied to children throughout the seventeenth and eighteenth centuries, and has since evolved from one granting absolute rights to the sovereign to one more associated with rights and obligations of the state and courts towards children and incapacitated adults.

There is further discussion of this at this source here.

Bottom line, from before the Consitution and until today, if need be, the State can invoke this doctrine to determine what is in the best interests of your child despite the wishes of the natural parents.

This is not a new, kookie doctrine dreamed up by Lefties, but was pre-existing and operative during the time of the Founding Fathers and the Constitution.

I don't like it all that much, but it is as American as apple pie and George Washington.