Yoder and homeschooling rights

[Volokh, Eugene]

	The Cal. Ct. App. just rejected a claim of a constitutional
right to homeschool
(http://www.courtinfo.ca.gov/opinions/documents/B195072.DOC).  The
Pierce/Meyer parental rights argument was rejected on the strength of
50-year-old California precedent, but I thought that I'd ask this list
about the Court's rejection of the Yoder argument:

"Yoder involved children whose parents' religion (Amish) accepted
education given outside of the home for grades one through eight but
mandated that children not continue their education in a public or
private school past the eighth grade.  The Yoder court rejected the
notion that parents have a universal right to refuse to obey a state's
compulsory education law.  The court recognized that "allowing every
person to make his own standards on matters of conduct in which society
as a whole has important interests" is precluded by "the very concept of
ordered liberty," and thus, "if the Amish asserted their claims because
of their subjective evaluation and rejection of the contemporary secular
values accepted by the majority, . . . their claims would not rest on a
religious basis" but rather would be philosophical and personal.
(Yoder, supra, 406 U.S. at pp. 215-216.)  However, from the testimonial
evidence of scholars on the subjects of religion and education, the
court found that the Amish traditional way of life does not rest on
personal preferences but rather on "deep religious conviction, shared by
an organized group, and intimately related to daily living" (id. at p.
216), and the Amish religious beliefs and style of living are centuries
old (id. at p. 217).  "Old Order Amish communities today are
characterized by a fundamental belief that salvation requires life in a
church community separate and apart from the world and worldly
influence.  This concept of life aloof from the world and its values is
central to their faith."  (Id. at p. 210.)  Testimony showed that not
only were the values taught in high schools contrary to those of the
Amish religion, but attendance at high school takes Amish children away
from their community during the period of their lives when they are to
acquire Amish attitudes and integrate into the Amish religious
community.  The Yoder court observed that Amish children receive an
informal vocational education in their own communities after graduation
from eighth grade that prepares them to be productive members of the
Amish community.  (Id. at pp. 211 212, 222.)  Moreover, one of the
witnesses testified that compulsory high school education for Amish
children would "ultimately result in the destruction of the Old Order
Amish church community as it exists in the United States today."  (Id.
at p. 212.)

"The parents in the instant case have asserted in a declaration that it
is because of their "sincerely held religious beliefs" that they home
school their children and those religious beliefs "are based on Biblical
teachings and principles."  Even if the parents' declaration had been
signed under penalty of perjury, which it was not, those assertions are
not the quality of evidence that permits us to say that application of
California's compulsory public school education law to them violates
their First Amendment rights.  Their statements are conclusional, not
factually specific.  Moreover, such sparse representations are too
easily asserted by any parent who wishes to home school his or her
child.

"Because the trial court in this case simply ruled that the parents have
a constitutional right to home school their children, the court made no
explicit factual findings concerning the parents' compliance with
California's compulsory public education law.  So that findings and
legal conclusions can be made on the record by the trial court, we will
remand the case for a hearing on the issue whether the parents have been
in compliance with that law.

"The dependency court should exercise the authority, granted to it by
Welfare and Institutions Code sections 361, subdivision (a), and 362,
subdivision (d), to order the parents to comply with the Education Code.
Upon remand, absent any legal ground for not doing so, the court must
order the parents to (1) enroll their children in a public full time day
school, or a legally qualified private full-time day school and (2) see
to it that the children receive their education in such school."

	It sounds like in principle the parents could try to relitigate
the Yoder question on remand, by filing affidavits related to their
religious beliefs.  But what exactly would they have to say, to satisfy
the Court, that's "factually specific," and that wouldn't run afoul of
being "too easily asserted by any parent who wishes to home school his
or her child"?  Is the court suggesting that an affidavit, to trigger
strict scrutiny under Yoder, must just specifically set forth the nature
of the parents' religious beliefs, and why the requirement of sending
their children to some school (public or private) burndes of those
beliefs?  Or is the court suggesting that the affidavit has to show some
community religious principles, as in Yoder itself?  What should the
California courts do here?

	I should note that it sounds like there might be some problems
with these parents, see 2007 WL 4112168; but the court's ruling here
relates to the constitutional claim more broadly.

	Eugene