Yoder and homeschooling rights

Wed Mar 5 14:49:16 PST 2008

The Homeschool Association of California claims that: 
Homeschooling families in California comply with the compulsory attendance law in one of five ways:   They establish a private school in their home (§48222 exemption). They enroll their children in a private school that offers an independent study course (§48222 exemption).
They hold, or employ a private tutor holding, a California teaching
credential for the grades and subjects being taught (§48224 exemption). They enroll their children in a public school that offers independent study (public school).
They enroll their children in a public charter school that offers
independent study, distance learning, or a homeschool program (public
school).See http://www.hsc.org/compulsoryattendance.html

This family was using the second option above, but the court held that independent study under the auspices of a private school didn't satisfy the CA statute after all, because the parents are not officially "credentialed." 

Not cited were the many studies showing that whether a teacher is officially certified doesn't have much, if any, effect on academic achievement. See, e.g., http://www.catalyst-chicago.org/news/index.php?item=2108&cat=27 , http://muse.jhu.edu/login?uri=/journals/brookings_papers_on_education_policy/v2004/2004.1rothstein.html , http://www.education-consumers.com/Cunningham-Stone.pdf , or http://www.caldercenter.org/PDF/1001072_everyones_doing.PDF .

Best,
Stuart Buck

Date: Wed, 5 Mar 2008 17:03:30 -0500
From: laycockd at umich.edu
To: religionlaw at lists.ucla.edu
Subject: Re: Yoder and homeschooling rights

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). 
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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