Homeschooling and Parental Rights Under Attack in California | Chris Banescu | Mar. 12, 2008

Declaring that “parents do not have a constitutional right to home school their children,” the Second District Court of Appeal for the state of California recently issued a ruling that effectively bans families from homeschooling their children and threatens parents with criminal penalties for daring to do so. According to the Home School Legal Defense Association (HSLDA) this court decision has made “almost all forms of homeschooling in California” a violation of state law. Once again our judicial system moves to restrict religious and personal liberties, severely limit parental rights, and significantly increase the power, scope, and control of the state over our lives.

There are approximately 166,000 homeschooled children in California. With the stroke of a pen the appellate court criminalized the lawful educational choices of tens of thousands of innocent families across the state, subjected them to possible fines, and labeled their children as potential truants. This activist court chose to bypass the will of the people and legislated from the bench based on anecdotal evidence and its own clearly biased and subjective opinions about the constitutionality of parental rights and the quality of a homeschooled education. This decision attacks the freedom of parents to decide on the best educational environment for their children, restricts their religious rights to practice their faith without governmental interference, and violates their freedom to raise their offspring as they see fit without the ideological pollution and atheistic/leftist indoctrination so prevalent in our public school system.

In a state that allows minors to have abortions without parental notification and consent, having the court complain about the welfare and safety of children who are homeschooled is laughable. The court also conveniently turned a blind eye to the increasing levels of violence and murder in many California public schools, as well as the abysmal quality of education in those very same schools. With California ranking near the bottom in the quality of its public education system, a state-wide illiteracy rate of approximately 24 percent, and drop-out rates hovering around 30 percent, the California public education system is not the shining example and standard the courts should be applying and measuring against.

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13 thoughts on “Homeschooling and Parental Rights Under Attack in California

  1. HSLDA: Update–Defending Homeschool Freedom in California

    Dear HSLDA Members and Friends:

    The following is an update on the developing situation in California
    from Michael Farris, Chairman, Home School Legal Defense Association.

    State Superintendent Supports Homeschooling

    On Tuesday, March 11, Jack O’Connell, California Superintendent of
    Public Instruction, announced that he believed that homeschooling is
    still legal in California. O’Connell’s statement is welcome news. To
    read it visit . Some might
    conclude that the statement ends the controversy. However, it is not
    the end of the matter; it is just an important step along the way.

    His clarifying statement was probably the result of the massive public
    outcry against the February 28 decision of the California Court of
    Appeal which effectively ruled that homeschooling is illegal in
    California unless conducted by a credentialed teacher and that parents
    have no constitutional right to homeschool.

    O’Connell’s statement is helpful, but the courts will undoubtedly take
    the position that their determination of the meaning of state law is
    final even though they should give serious deference to the position
    of the Superintendent of Public Instruction.

    It should also be remembered that local school districts make the
    decision about when to initiate prosecutions for truancy, and they are
    not officially controlled by the state agency on these matters.
    However, many local officials may be influenced by O’Connell’s
    positive statement.

    Did the February 28 Ruling Intend to Affect All Homeschooling

    Some have contended that the decision of the Court of Appeal in In Re
    Rachel L. only affects that particular family. While a court order can
    only direct one family to stop homeschooling, the case clearly sets a
    legal precedent that will be binding against all other families if
    this case is not reversed. (Technically, the decision is binding only
    in the Second District which consists of Los Angeles, San Luis Obispo,
    Santa Barbara, and Ventura counties. However, other appellate
    districts will normally treat it as persuasive precedent. If ratified
    by the Supreme Court of California, it formally binds all California

    There are two basic issues in the case:

    1. Does state law allow parents to homeschool without a state teaching

    2. If not, is this law unconstitutional?

    Below are three short quotations from the case which give the clear

    “It is clear to us that enrollment and attendance in a public
    full-time day school is required by California law for minor children
    unless (1) the child is enrolled in a private full-time day school and
    actually attends that private school, (2) the child is tutored by a
    person holding a valid state teaching credential for the grade being

    “California courts have held that under provisions in the Education
    Code, parents do not have a constitutional right to school their
    children in their own home.”

    “We agree with the Shinn court’s statement that ‘the educational
    program of the State of California was designed to promote the general
    welfare of all the people and was not designed to accommodate the
    personal ideas of any individual in the field of education.”

    In the first quote the court makes it clear that it believes that
    parents may not operate their own private schools. In the second they
    deny that a parent has a constitutional right to homeschool, and in
    the third they concur that California law does not accommodate parents
    pursuing their own education program for their children.

    As you can see, the decision is categorical and was not written to be
    limited to just the facts of this case.

    Due to the scope of the court decision, HSLDA is pleased to be working
    with other self-identified pro-homeschooling organizations, including
    Christian Home Educators Association of California (CHEA), Homeschool
    Association of California (HSC), California Homeschool Network (CHN),
    and Family Protection Ministries (FPM) in order to oppose this ruling.
    We are all in this one together.

    What is HSLDA’s Immediate Plan of Action?

    We plan to:

    1. Support the family’s petition for review to the California Supreme

    2. File an amicus brief on behalf of all our members, and others we
    represent, if the California Supreme Court accepts the case for

    What Can California Homeschoolers Expect in the Short Run?

    We believe that it is highly unlikely that local officials will begin
    proceedings against homeschool families until this present case is

    This ruling has obviously caused great concern among California
    homeschoolers. We want to remind all California homeschoolers that you
    should stay calm in the face of this decision. Please continue to
    operate your homeschool, because we believe that our interpretation of
    the law is correct and will ultimately prevail in the court system.

    We must remain vigilant, however. If you are a member of HSLDA, and
    you are contacted by a school district, please contact HSLDA

    Long-Range Solution

    On another front, later today I am meeting with a half-dozen
    congressmen to plan a strategy to push for a constitutional amendment
    on parental rights. We have been receiving numerous calls from members
    of Congress wanting to respond to this decision. See for more information.

    Final Thoughts/Conclusion

    The way the homeschool law has worked in California for the past two
    decades has been successful for all homeschoolers. If we can keep
    what we have today that would be a significant victory for homeschool

    We also understand that the current situation has caused much stress
    for California homeschool families. We are praying, and we encourage
    you to pray, that the threat we face will be swiftly removed and that
    homeschool freedom in California will be preserved.

    We have seen God’s hand of protection on the homeschooling movement
    for the 25 years we have been working together for this cause. There
    is no reason to begin to doubt God now.

    Michael Farris
    Chairman, Home School Legal Defense Association

  2. Paragraph 2229 of the Catechism of the Catholic Church:

    “As those first responsible for the education of their children, parents have the right to choose a school for them which corresponds to their own convictions. This right is fundamental. As far as possible parents have the duty of choosing schools that will best help them in their task as Christian educators. Public authorities have the duty of guaranteeing this parental right and of ensuring the concrete conditions for its exercise.”

    I pray that the Catholic Authorities of California will recall the motives of the Missionaries who named Los Angeles, Sacramento, San Francisco and so many other California locales, when they publicly react to this injustice — brought on by those (government unions) who wish to: separate children from their parents (with or after abortion), taxpayers from their honestly earned wages, and replace The Church with the state.

    Parents Ecumenically Allied for Choice in Education

  3. I will send whatever I need to send to whoever I need to send it to.This must be stopped in its tracks

  4. I’m not sure what the controversy is here. I actually read the decision of the Appeals Court and the relevant statutes in the California Education Code. It seemed to me that the Appeals Court was doing a straightforward reading of the Education Code. I wouldn’t call that “judicial activism.”

    48224. Children not attending a private, full-time, day school and who are being instructed in study and recitation for at least three hours a day for 175 days each calendar year by a private tutor or other person in the several branches of study required to be taught in the public schools of this state and in the English language shall be exempted. The tutor or other person shall hold a valid state credential for the grade taught.
    California Education Code

    If people don’t like what the Code says, they should work with the legislature to change that provision of the Code. Maybe that part of the Code is bad law. Maybe it’s a dumb law. But it is the law, and I don’t see how the Appeals Court can be criticized for upholding a law that was passed by a legislature elected by the people of California.

    Concerning whether parents have a constitutional right to homeschool their children, the Appeals Court referenced prior case law:

    These provisions of the Education Code (in their predecessor section numbers) were held to be constitutional in People v. Turner (1953) 121 Cal.App.2d Supp. 861, 865 et seq., (“Turner”), and an appeal to the United States Supreme Court from that decision was dismissed for want of a substantial federal question in Turner v. People of the State of California (1954) 347 U.S. 972 [98 L.Ed. 1112, 74 S.Ct. 785].
    (From the Appeals Court’s decision, pg. 6)

    The issue of whether parents have a constitutional right to homeschool children was raised by the trial court. Thus the Appeals Court is not “expanding” the scope of their decision. Rather, they were responding to an issue originally raised by the trial court:

    The trial court’s reason for declining to order public or private schooling for the children was its belief that parents have a constitutional right to school their children in their own home. (Court of Appeals, pg. 3)

    So the Appeals Court was not raising a new issue, but dealing with a finding by the trial court that they believed was an error, contradicted by prior case law.

    As far as the quality of education offered by homeschooling, that is an issue that should be decided by the legislature, not the courts.

    Back to the issue of whether parents have a constitutional right to homeschool children — do people really think there is such a “right?” Is that an absolute right? For example does an illiterate parent have a right to homeschool children?

    I really don’t have a dog in this fight. I don’t live in California, don’t homeschool, and don’t have a bias against those who do. In fact one of my good friends is a woman who homeschooled all of her children, successfully I would add. But it seems to me that the anger directed at the Appeals Court would be better directed against the California legislators who enacted the various provisions of the California Education Code. If you don’t like the law, change the law. But don’t expect that the courts will make new law or find constitutional rights where none exist. Isn’t that how conservatives see things?

  5. For those not particularly familiar with homeschooling you should know that California has always been a difficult state. State law has always discouraged homeschooling (not the right kind of doing your own thing). The first folks who began homeschooling publically (20-25 years ago) had incredible credentials and still faced prosecution and investigation by child services. HSLDA and the state homeschool organizations have, over the years reached an accomodation of sorts that is really an economia. The acutal law has never been changed, in large part because the homeschoolers did not feel it was feasible.

    The judge in this case is actually reading the letter of the law correctly. What he is missing is the social situation and the appropriate application of the law. However, it is a good thing in my estimation. There was an old attorney general of Kansas who maintained that the best way to get bad law changed was to inforce it. He didn’t like the prohibition style liquor laws in Kansas at the time, so he inforced them strictly, including on planes flying over the state. The laws got changed.

    The best thing to do is get involved with the homeschool organizations. They are politically astute, well organized and can mount a grass-roots effort like you would not believe. If they choose they can shut down the legislature with a flood of calls, faxes, e-mails and personal visits. Looks as if it might be the right time to do so.

  6. Jim, There have been times in the past when US Courts found that slavery and segregation laws and practices were ok, do you now claim that bad, abusive, and unethical laws are ok just because a court says so. We also have a Supreme Court that invented the right to kill unborn children and came up with Abortion as a “right”, does that make it ok? Come on, you know better than that.

    The court’s claim that “parents do not have a constitutional right to home school their children” is the key issue here and it is wholesale judicial activism, especially since the California Constitution makes NO such claims. Just because a prior court also issued some misguided and activist decision does not now make it ok for this Court of Appeals to continue legislating from the bench and giving more powers to the state.

  7. The Oliver Wendell Holmes U.S. Supreme Court ruled that the parental right to direct the education of one’s children was a fundamental right (one step below being a full-blown enumerated constitutional right). As I understand the terminology, that means the state, in order to regulate the parent’s choices must demonstrate 1). that there is a compelling state interest for doing so, and 2). the regulation must be the least intrusive possible. I question if the state, in fact, has a compelling interest in how specific children are educated, but that battle is over. However, in every state where it has been farily and honestly examined in a combination of legistative and judicial venues, the conclusion is that requiring teacher certification was too burdensome on the parents.

    As I stated in my previous post, however, and Jim also pointed out, the court did apply the California law as it is written. The outrage against this court is miss placed IMO (My wife and I did homeschool our son sucessfully in an much less regulated state). However, based upon judicial and legistlative precedent at every level in every other state in the Union, California’s law is out of step and too restrictive. The empirical data that the Homeschool Reserch Council has amassed over the last 25 years is pretty persuasive that intrusive, burdensome regulation is not needed. California needs to come in line with everybody else. The existing California law is a relic of the powerful ‘public education’ movement of the late 19th, early 20th century whose stated intent was to indoctrinate children into a statist mentality.

    Not being a Californian, I’ve never understood the reluctance of the homeschool community to address the laws, but so far they have not really rasied the issue. Homeschooling is an issue that is still governed on a state by state basis and that is the best way to handle it. There are plenty of models from which to develop homeschooling laws that address all of the legitimate concerns. The educational establishment will always want more control, the homeschoolers less.

    Child abuse is clearly the red herring that the controlers will use to gain more control. As a group, there is far less child abuse among homeschoolers than those who attend public and other private schools. Requiring teacher certification does nothing to address the abuse issue in any case. The issue of whether an illiterate parent has a right to homeschool their children is also a straw-man argument. Illiterate parents are highly unlikely to want to exercise the right. However, if they wanted to, any competent homeschool organization (and there are many) could help direct them to resources that would make it possible.

    It is not a ‘rights’ question however, it is one of who has the ultimate responsibility for the growth and development of the child–the parents or the state. Clearly, the choice that allows the most freedom is for the law to support and empower the parents over the state. The choice of what one’s children learn, how they learn it, and where they learn it is central to what it means to be a parent. That is why the U.S. Supreme Court has long recognized the right as fundamental.

    The lone holdouts are the education unions and the politicians they support.

    But, Chris, really, your snippy tone and using the shiboleth of slavery are simply not necessary as they derail all legitimate conversation.

  8. Michael, Sorry but I don’t agree with your objection to the examples cited. Both the slavery and segregation scenarios in our history point to situations where the courts upheld immoral “laws” and justified their reasoning, just like the appeals court with homeschooling.

    I also don’t agree with your qualification of my “tone.” 🙂 FYI, the right “not to be offended” is not in the Bill of Rights. Excuse me for having a personality. 🙂

  9. Michael writes: “The Oliver Wendell Holmes U.S. Supreme Court ruled that the parental right to direct the education of one’s children was a fundamental right (one step below being a full-blown enumerated constitutional right). As I understand the terminology, that means the state, in order to regulate the parent’s choices must demonstrate 1). that there is a compelling state interest for doing so, and 2). the regulation must be the least intrusive possible.”

    I’m not an attorney, but I have read through a number of cases on the internet, and the court decisions seem to be all over the place, sometimes with trial court decisions reversed on appeal and appeals court decisions reversed by state supreme courts, with decisions going both ways at all levels. I’m not familiar with the case to which you refer, but to say that parents have a right to “direct” the education of a child does not entail that “anything goes.” I’m sure you would agree with that.

    Michael: “As I stated in my previous post, however, and Jim also pointed out, the court did apply the California law as it is written.”

    I have to wonder if the court might have reached a different decision given a different set of facts. One homeschooling site that I read said that the court couldn’t have been presented with a worse set of petitioners if they had held a contest. The family originally came to notice after one of the children reported physical and emotional abuse of several children by the father. An investigation by the Department of Child and Family Services revealed that the children were being homeschooled. The trial court found that the education provided to the children at home was “lousy,” “meager,” and “bad.” This is the quality of education provided to the eight children.

    So you have an allegedly abusive father and a mother providing “lousy” education to eight children. This is the background of the case presented to the Appeals Court.

    But you have to wonder how the decision might have gone had a different family been involved. For example, let’s say that the father was an outstanding citizen, the mother had a Ph.D. in astrophysics, the children could read the classics in the original Latin and Greek, and that they knew calculus and differential equations. I know that’s an extreme example, but my point is that the actual family involved in the case is not exactly the family that you would select to carry the homeschooling banner into court. I would guess that given an abusive father, lousy education by the mother, and a family situation the trial court said kept the children isolated from others, that the California Education Code is going to look like a pretty good thing to the Appeals Court.

    Michael: “The issue of whether an illiterate parent has a right to homeschool their children is also a straw-man argument.”

    Sure, but you would agree, wouldn’t you, that there can be a balance between the rights of parents and reasonable regulation of homeschooling by the State? As you say, “there are plenty of models from which to develop homeschooling laws that address all of the legitimate concerns. “

  10. Homeschooling is a freedom, not a right that is why it cannot and should not be compared with slavery or abortion. Public education that was genuinely responsive to local needs is not immoral. It is only when the state over-reaches and begins indoctrination that is disruptive to the family that a problem occurs. IMO, that has happened in our culture. Combined with the prevalence of violence, sex and drugs in many public schools and the increased abuse and molestation of students by teachers and administrators in public schools for the state to assume a position of superiority in evaluating a home education situation is laughable.

    The Kansas manner of regulating parent directed education is simple and quite effective. It preserves the ability of the state to intervene in really bad situations such as educational neglect and abuse while allowing the vast majority of the rest of us to go about our business unimpeded. To home school legally in Kansas, the parents send a half page registration form the Kansas Department of Education that shows the name and address of the school and the custodian of records. Unless the family moves, this registration only needs to be filed once. The home school is then an official, non-accredited private school. Kansas law further requires that the education provided by such non-accredited private schools be substantially equivalent to the public schools. The courts have ruled that ‘substantially equivalent’ means both in content and amount of time spent. The educational outcome is up to the student as it is in any course of study.

    The high school diploma issued by any such non-accredited private school has to be accepted by the state. The Federal government and most colleges and junior colleges also accept it. A transcript must also be provided for the college and jucos.

    Nothing more is needed. Anything else is excessive.

  11. Michael, you are mistaken on the rights issue. I belive that it is a fundamental right for parents to decide on their children’s education and how they are raised; that’s a heck of a lot broader than simply homeschooling. What I took issue is the Big Brother and heavy handed manner in which the court dismissed those rights and presented a “for the good of the state” argument. Had you experienced the “good of the state” evil of communism first hand and the arguments the state used to justify just about anything, you would not take it so lightly and see that the warning signs are a lot more serious than they appear.

  12. Chris, I’m sure you are correct. I do recognize the danger. I just have a real problem with the whole “rights” approach. “Rights” are often looked at as something the government grants or doesn’t. Not the case. Children are a gift of God and we have the resposibility to take care of them–that resposibility is our freedom. As parents we exercise that freedom/responsibility no matter what the governement says or does not say.

    Good law only comes from a righteous understanding of what it means to be human in society. Nothing in American jurisprudence has that anymore. Since the law has lost its foundation in reality, what are we to expect? We should not be surprised and I simply don’t have enough adrenaline left in my body to get outraged at every erruption of indecency in the courts. I also know the dedicated homeschoolers will find a way to school their children in the manner they see fit no matter what the law is. Given the dedication, organization, and intelligence of the homeschool community, the law will get changed. Homeschool law is actually one of the few places that the system still works. There is still some semblence of separation of powers, of citizen involvement and legislators responding to the actual needs and wants of their constituency (not false needs made up by power brokers).

    I expect we agree more that we disagree here. Yes, the care, guidance and instruction our children is none of the state’s business. The state should not even be involved in education. The ‘public education’ gurus of the late 19th and early 20th century were openly socialistic in their approach to education so that the children would be indoctrinated into ‘proper’ thought. Industrialization allowed them to gain control of educational policy and our children (we gave them away to the state). The California law reflects that attitude and should be changed, but it is not the court’s place to change the law.

    Captialism and technology have given new tools to everyone that essentially makes centralized educational institutions and teaching credentials a dying conglomerate as I’m sure you know even better that I do.

    The HSLDA has an impressive and deepening array of Constitutional agruments, case law and empirical data to support the non-intervention of the governement into the family. They have an equally impressive record in court and in legislatures around the country. This ruling gives the opportunity to finally do something about the stupid law in California. For that I am thankful.

  13. Michael, This is an insightful and true observation:

    Captialism and technology have given new tools to everyone that essentially makes centralized educational institutions and teaching credentials a dying conglomerate as I’m sure you know even better that I do.

    Yes, this exactly what is happening. It applies not only to business, but to the press, media, entrepreneurship, education, government (hopefully) and other organizations. It’s bringing to fruiting the cliche “power to the people.” We are only now beginning to see the power of freedom and true competition in many areas of our economy. Hopefully the flood gates have been opened and this trend cannot be contained.

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