Yoder and homeschooling rights

Wed Mar 5 14:03:30 PST 2008

  How did this case arise?  All over the country, courts rejected the
claim that Yoder supports a right to home school, generally saying the
Amish are special and not holding out the possibility that more
specific affidavits could do the job.  Then legislatures stepped in,
or political pressure on state boards of education, and the problem
was solved politically.

  I can't believe no one is home schooling in California, or that no
one has home schooled there all these years and that it didn't
generate political controversy and litigation that I would have heard
about.  So how did this family get singled out and forced to rely on
litigation?

  If the court is serious about more specific affidavits, they should
not be hard to draft.  No prayer, no recognition of religion at any
point in the school day, no abstinence-only curriculum, generally
secular epistemological assumptions at every point that leave no room
for religious faith, evolution -- this at least is how public schools
appear to many conservative believers.  But if the clients aren't so
articulate and the lawyer doesn't take the time, things like this get
reduced to conclusions.  Same thing happens all the time on the isue
of burden on religion -- burden is so obvious to the religious
claimants they just assert it, and don't prove it up to the
satisfaction of a more secular and skeptical court.

  Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>         The Cal. Ct. App. just rejected a claim of a constitutional
> right to homeschool
> (http://www.courtinfo.ca.gov/opinions/documents/B195072.DOC[1]). 
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
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>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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