13 Chap. L. Rev. 391 (No PDF)
Chapman Law Review
RECOGNIZING AND REGULATING HOME SCHOOLING IN CALIFORNIA: BALANCING PARENTAL AND STATE INTERESTS IN EDUCATION
Copyright (c) 2010 Chapman Law Review; Paul A. Alarcón
Introduction: The Rachel L. and Jonathan L. Decisions
On February 28, 2008, the California Court of Appeal for the Second Appellate District caused alarm on a national level by ruling that home schooling in California is illegal unless the parent has a teaching credential. In reaching this conclusion, the court of appeal relied almost exclusively on a fifty-five year old California superior court appellate department case and a forty-seven year old California court of appeal case. Both cases had held that statutory predecessors to the private school exemption to California’s compulsory school attendance statute were inapplicable to home schooling.
However, in the fifty years since these decisions, home schooling has grown explosively from a curiosity on the fringe of education to a competitive and widely-practiced instructional form. As a result of In re Rachel L., parents wondered if they would have to leave California to avoid criminal prosecution. Home schooling advocates were shocked that an educational methodology–which had gained universal acceptance throughout the United States as a legal form of education–could be effectively outlawed in the country’s most populous state. Further, the court of appeal’s decision to settle the general question of whether “parents can legally ‘home school’ their children,” was particularly surprising since Rachel L. was a confidential dependency case involving issues unrelated to home schooling. Less than a month later, the Court, perhaps on account of the overwhelmingly negative reaction to its decision, depublished its decision and granted a petition for rehearing.
The court of appeal issued its new decision, Jonathan L. v. Superior Court, on August 8, 2008. While refusing to back down from its position that no absolute constitutional right to home school exists, the Jonathan L. court held that California’s private school exemption “permit[s] home schooling as a species of private school education.” The court of appeal found the statutory language of the exemption to be ambiguous with respect to its applicability to home schooling. This allowed the court of appeal to conclude, based on various legislative acts relating to the private school exemption, that “[w]hile the Legislature has never acted to expressly supersede Turner and Shinn, it has acted as though home schooling is, in fact, permitted in California.” In addition, the Jonathan L. court found it significant that the Superintendent of Public Instruction, the Department of Education, the Governor, and the Attorney General all accepted home schooling as a legal type of private schooling. Finally, the court of appeal stated that its interpretation of the private school exemption avoided serious constitutional questions about the validity of a law which renders home schooling illegal.
The court of appeal concluded its opinion with the observation that, “the fact that home schooling is permitted in California as the result of implicit legislative recognition rather than explicit legislative action has resulted in a near absence of objective criteria and oversight for home schooling.” The Jonathan L. court contrasted this lack of oversight with numerous limitations utilized by other states to regulate home schooling. Consequently, the court of appeal stated that “additional clarity in this area of the law would be helpful.”
This Comment focuses on the Jonathan L. court’s plea for clarity. First, this Comment proposes that the California Legislature explicitly legalize home schooling by enacting a new statutory exemption to California’s compulsory school attendance statute. Second, it suggests that the government impose two limitations on home schooling: one which requires parents to file an annual notice of intent to home school their children, and another which requires home schooled students to take annual standardized tests. These requirements will protect California’s compelling interest in an educated citizenry while minimizing any imposition upon the parental right to direct the education of their children.
A perusal of the history of education in America reveals a general trend toward government control over the education of children. The universal adoption of compulsory school attendance laws is, perhaps, the clearest reflection of this tendency. The enactment of such laws reflects the principle that states have a compelling interest in education. However, this trend towards government oversight has its detractors. Modern-day home schooling represents one clear educational form sharply divergent from the general trend towards government control. This educational form is founded upon a belief in the supremacy of the parental right to direct the upbringing and education of their children.
In the context of home schooling, these two interests–the governmental and parental–are opposed because home schooling parents want complete control over their children’s environment and curriculum, removed from the supervision of public officials. However, governmental oversight of some kind is necessary to protect the state’s interest in ensuring that students are receiving an adequate education. Without limitations, the California Constitution’s assertion of a governmental interest in education becomes meaningless rhetoric, or at least, a mere desire which the state is unable to enforce. On the other hand, home schooling limitations necessarily impose upon the parental interest to the degree they limit and direct the parents’ actions. Where such limitations unreasonably trample upon the parental interest in directing the education of their children, courts have found the restrictions unconstitutional. Hence, the question arises as to what limitations, if any, should be adopted, which guarantee that each and every home schooled child receives an adequate education, but which do not unconstitutionally impose upon the parental interest.
In order to answer this question a consideration of both the state and parental interests in education is required. According to the United States Supreme Court, the parents’ interest in directing the education of their children is a fundamental constitutional right. Whereas, the state interest in an educated citizenry is a compelling interest in ensuring that students become economically independent and civically responsible.
In order to select the most suitable limitations, a review of restrictions commonly adopted by other states is helpful because these restrictions are widely accepted as reasonable and effective, and they have not been struck down as unconstitutional.
Part I of this Comment summarizes the history of education in America discussing in particular the emergence of modern home schooling. Part II considers the conflict between the governmental and parental interests in education created by home schooling and provides an in-depth analysis of these dueling interests. Part III concludes with a proposal for enacting a home school exemption to California’s compulsory school attendance statute, a consideration of limitations adopted by other states, and a proposal for adopting two specific home schooling restrictions.
I. Education in America: Home Schooling and the Trend Towards Government Oversight
Since the inception of the United States of America, a widespread appreciation of the importance of education has existed. In fact, Thomas Jefferson proposed a system of free schools to be maintained by taxation. However, until the public or common school movement, education was administered locally and usually privately. In the early 1800s, prominent educators began to successfully advocate the creation of statewide public school systems. Every state had a system of free public schools by 1850. Fifty years later the public school movement accomplished its objective of mandatory public education for the elementary level in almost every state. Today, every state has enacted compulsory school attendance statutes.
Thus, the history of education in the United States is one which manifests a trend towards institutionalization and government control. However, this trend has always had its detractors. For example, heavy opposition to publicly controlled schools came from Roman Catholics who believed that the values imparted in public schools had unpalatable Protestant biases.
In the 1950s, home schooling arose as an alternative to the public school system. At the outset, home schooling was dominated by liberal and progressive philosophies. However, by the early 1990s, home schooling was predominately characterized by conservative Christian ideologies.
Since its emergence, home schooling has experienced explosive growth throughout the nation. Estimates indicate that as few as 10,000 to 15,000 students were home schooled in the late 1970s. This number increased dramatically in the 1980s–such that by the end of that decade an estimated 150,000 to 300,000 students were home schooled in America. The 1990s saw a continuation of this rapid growth and by 1998 estimates put the number of home schooled children at nearly 1 million. The National Center for Education Statistics reports that in 2003 the number of home schooled students had climbed to 1.1 million.
As public education became universally available, a question arose regarding whether the states had the power to force every student to attend public schools and thereby eliminate any alternate forms of education. Given that the public school movement included objectives such as uniting a widely diverse population and ensuring competent schooling to all citizens, some thought that states had such a power. However, in Pierce v. Society of Sisters, the United States Supreme Court unanimously held that a state act which requires all students to attend public school without providing an exception for private forms of education, “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” In stating that “[t]he child is not the mere creature of the State” the Court definitively determined that the “compulsory” character of the public school system is far from absolute. Rather, certain exceptions must exist for alternative forms of education because parents “who nurture [their child] and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” In later decisions, the Supreme Court reaffirmed the principles laid down in Pierce.
In summary, since the founding of America, education has generally progressed toward government oversight and control. However, forms of education diverging from this general trend have developed and gained the protection of the Constitution under Pierce. Home schooling is one such instructional type which has undergone significant growth during the past few decades.
II. Dueling Interests: An Analysis of Parental and State Interests and How they Conflict
If the history of education in the United States reflects a trend towards governmental oversight, the emergence of home schooling clearly represents a diverging movement towards independent parental control. The latter adopts, as a fundamental principle, the parents’ interest in directing the upbringing of their children. In the context of home schooling, this interest inevitably conflicts with the state’s interest in education. The resolution of this conflict depends upon the character of each interest.
A. Oversight and Control: An Inevitable Conflict between Parents and the State
In asserting that “[n]o question is raised concerning the power of the State reasonably to regulate all schools,” the United States Supreme Court made it clear that Pierce does not constitute a complete rejection of the idea that the state has an interest in the education of its citizens which might at times justify interfering with parental decisions regarding education. However, the Court warned that this power is not absolute–it must not unreasonably burden parents’ right to educate their children. Thus, Pierce indicates that both the state and parents have a valid interest in the education of children.
Ideally, both of these interests–which have as their object the promotion of excellence and maturity in the student, in the one case due to love and a high sense of obligation and in the other due to civic and economic concerns–will be in perfect harmony. However, in the context of home schooling, parents desire absolute control over the educational environment, completely removed from supervision by public officials. Without any governmentally imposed restrictions–including a basic notice requirement–on home schooling, the state’s interest in an educated citizenry is rendered unenforceable since the state cannot determine whether the children are being educated at all, much less, whether they are being adequately educated. Therefore, home schooling creates an inevitable conflict between the parents’ interest in directing their children’s education, free from any governmental impositions, and the state’s interest in adopting some kind of home school restrictions which ensure that home schooled children are adequately educated.
There are three possible solutions to this conflict. First, the parental interest could completely prevail over the state interest–resulting in the complete deregulation of home schooling. Second, the state interest could absolutely overcome the parental interest–rendering home schooling unlawful. Third, the two interests could be balanced–preferably by restrictions that ensure that every home schooled student is given an adequate education without unreasonably imposing on the parental interest. The appropriate solution depends on the legal import of the parental and state interests in education. Therefore, the answer to the Jonathan L. court’s request for “additional clarity” requires a consideration of both of these interests.
B. The Fundamental Constitutional Right of Parents to Direct the Upbringing of Their Children
Western civilization, with rare exceptions, has always recognized that parents have a special interest in directing the upbringing of their children. When America was born, no one dreamed that the government would ever challenge the rights of fit parents to exercise authority over their children. Hence, there is no express inclusion of parental rights in the Constitution or Bill of Rights. However, the United States Supreme Court has a long history of recognizing that the Fourteenth Amendment Due Process clause affords parents a fundamental constitutional right to direct the upbringing and education of their children.
In Troxel v. Granville, the Supreme Court held that parents have a “fundamental right to make decisions concerning the care, custody, and control of” their children. The Court stated that “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Further, the Court cited a lengthy history of Supreme Court decisional authority supporting its assertion that the United States Constitution protects the fundamental right of parents to direct the upbringing of their children. Among the cited authority was Wisconsin v. Yoder wherein the Court stated that “[t]he history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” The Troxel decision also referenced Pierce, wherein the Court found that the parental right to control the education of children was a constitutional right stating that:
As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
In summary, the decisional history of the United States Supreme Court reflects the established principle that parents have a fundamental right, protected by the Federal Constitution, to direct the education of their children. However, the state also has an undeniable interest in the education of its citizens, which may clash with this parental right.
C. The State Interest in Ensuring that Citizens are Economically Independent and Civically Responsible
Though the parental interest in directing the education of children rises to the level of a constitutionally protected fundamental right, it is not an absolute right. The California Court of Appeal held as much in its Jonathan L. decision, finding that no “absolute right to home school exists.” Relying on United States Supreme Court and California Supreme Court authority, the Jonathan L. court ruled that the parental “right must yield to state interests in certain circumstances.” Thus, the parental right to control the education of their child may be subjected to reasonable limitations where the state demonstrates a compelling interest that cannot be protected without the limitations.
One such compelling state interest is ensuring that its citizens are educated. The idea that governments have an interest in education which empowers them to exercise control over the education of their citizens reaches back to the foundations of western civilization. However, the fundamental concept of liberty upon which America was founded, and which remains deeply rooted in its legal traditions and constitutional heritage, would never allow the government to completely deprive parents of the control over their children short of extenuating circumstances. Nonetheless, every state does have an indisputable interest in ensuring that its citizens are educated.
But in what does the state’s interest in education consist? A purview of American jurisprudence reveals that this interest has two crucial elements–the interest that citizens be civically responsible, and the public policy interest that citizens become economically self-sufficient so as not to constitute a societal burden.
Undoubtedly, any consideration of California’s interest in education should begin with an examination of the preeminent law of California–its Constitution. Article 9, Section 1 of the California Constitution states that, “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.” This constitutional language demonstrates that California’s interest in education is to ensure that its citizens become civically responsible and thereby capable of preserving “the rights and liberties of the people.”
Since the parents’ fundamental right to control the upbringing and education of their children is protected by the Federal Constitution, the United States Supreme Court’s statements regarding a state’s interest in an educated citizenry are particularly significant. On numerous occasions the Supreme Court has held that the government’s compelling interest in education basically consists in ensuring the civic competence and economic independence of its citizens. In Yoder, the Court asserted that a state’s compelling interest in education consists in “prepar[ing] individuals to become self-reliant and self-sufficient participants in society.” The Court also spoke of education as the preparation for “citizens to participate effectively and intelligently in our open political system.” In Plyler v. Doe, the Court stated that, “education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all.” In this case, the Court held that a state is only required to ensure that students are provided with a minimum level of education so that they are able to lead “economically productive lives” and maintain “the fabric of our society.” In Pierce, the Court noted that a state has the power to require “that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.” Thus, according to the United States Supreme Court, a state’s interest in an educated citizenry is one which provides the basic competency necessary to ensure that students are economically productive as well as civically active and conscientious citizens.
Further, the California Supreme Court has also focused on the economic and civic independence of the student in discussing California’s interest in education. In Serrano v. Priest, the court stated that, in today’s state, education “has two significant aspects: first, education is a major determinant of an individual’s chances for economic and social success in our competitive society; second, education is a unique influence on a child’s development as a citizen and his participation in political and community life.” Beyond this, other courts have found that a state’s interest in education is limited to ensuring that students receive the minimum educational skills necessary to function as economically and civically independent adults. Finally, scholars have also posited that a state’s interest in education is limited to two basic types: economic and civic.
Thus, a state’s interest in education requires educators to provide students with the basic skills minimally necessary to become economically productive as well as civically conscientious citizens. In other words, ‘education’–understood as the object of a state’s interest–refers to a basic competency in those core subjects necessary for independent functioning in the democratic society of America.
In summary, in the context of home schooling, the parental and state interests are, to a degree, in conflict. The solution to this conflict depends upon the import of each interest. The parents’ interest is a fundamental constitutional right to direct the education of their children. The state interest is a compelling interest in ensuring that citizens are economically independent and civically responsible.
III. Proposal: Striking the Proper Balance Between Parental and State Interests in Education
As discussed above, two authorities have valid interests in education–the state in ensuring that children are provided with an education which makes them civically responsible and economically independent, and the parents in directing and controlling the education of their children. Home schooling presents unique difficulties to the state’s attempt to ensure that its citizens are receiving adequate education since parents exercise nearly absolute control over the educational environment. Simply stated, home schooling creates an inevitable conflict between the two interests because the state must either leave its interest unprotected or impose on the parental interest. Therefore, the question is, “What method should the state adopt to protect its interest without unreasonably imposing on the parents’ right?”
In answering this question, some have proposed that home schooling be rendered illegal, while others have asserted that the state should refrain from any regulation of home schooling whatsoever. The problem with either of these positions is that they allow one interest to eliminate the other. However, each interest is a compelling interest which deserves protection. Therefore, the best method for resolving the conflict must balance both interests according to their respective purposes and importance. Some restrictions should be adopted to protect the state’s interest. However, to prevent the state from needlessly trampling parental rights, these restrictions should be limited to those necessary to ensure that children are receiving the basic education sufficient to make them economically independent and civically responsible.
In order to avoid permitting the imposition of unreasonable limitations on a fundamental constitutional right, any attempt to infringe upon the parents’ right to direct the education of their children should be subjected to strict scrutiny. This heightened level of scrutiny is particularly necessary in cases involving home schooling since many parents have religious reasons for home schooling. Both a right to educate and a right to free exercise of religion are at stake for these families.
According to the court of appeal in Jonathan L., to satisfy the standard of strict scrutiny “a state must establish: (1) that the law in question is supported by a compelling governmental interest and; (2) that the law is narrowly tailored to meet that end.” The Jonathan L. court noted that “[a]s an alternative phrasing of the second element, the statute must represent the ‘least restrictive means’ of achieving the interest.” Therefore, California should adopt home school limitations which utilize the least restrictive means to protect its interest in education–that is, restrictions which encroach as little as possible on the parents’ fundamental right to direct the upbringing of their children.
First, this Comment proposes that the California Legislature legalize home schooling in the state by enacting a statutory exception to the state’s compulsory school attendance statute. Second, to adequately protect California’s interest in an educated citizenry, this Comment suggests that the government adopt two home schooling limitations: one which requires parents to file an annual notice of intent to home school and, another which requires home schooled students to take annual standardized tests.
A. Enacting a Home Schooling Exemption to California’s Compulsory School Attendance Statute
The court in Jonathan L. observed that the reason California has no “objective criteria and oversight for home schooling” rests in the fact that home schooling “is permitted in California as the result of implicit legislative recognition rather than explicit legislative action.” The court of appeal noted that home schooling parents must theoretically adhere to some of the other requirements of the private school exemption to California’s compulsory school attendance statute. However, the court also found that, practically, there is no “enforcement mechanism” to ensure that, beyond filing a private school affidavit, home schooling parents are complying with the statutory requirements of the private school exemption.
Indeed, even though the Jonathan L. court ultimately concluded that this exemption applies to home schooling, it noted that past case authority and legislative history appears to conflict with this ruling. To further complicate the issue, numerous legislative enactments have created exceptions, for home schools, to various requirements imposed on traditional private schools. In fact, according to the court of appeal, many of the restrictions pertaining to private schools “would be absurd if applied to every home school.” Hence, the very legislative acts upon which the Jonathan L. court based its holding–those that purport to apply to all private schools but which include exceptions for home schools–draw out the markedly different characters of traditional private schools and home schools and create double standards. Consequently, the regulatory scheme of the private school exemption makes it virtually impossible for California to ensure that its interest in education is being protected in home schools–in part, no doubt, because the exemption was designed for traditional private schools, not home schools.
For these reasons, this Comment proposes first that the California Legislature adopt a new statutory exemption to the state’s compulsory school attendance statute which explicitly permits home schooling in California. The benefit of such an explicit exemption is manifold. First, any question as to the validity of home schooling under California law will be put to rest. Second, creating a distinct home schooling exemption will eliminate the unnecessary legal complexity and confusion generated by the legislatively created “home school” exceptions to the numerous regulations and statutes intended to apply to traditional private schools. That is, the creation of a new statutory exemption for home schooling will simplify the body of law relating to California’s compulsory school attendance statute. Third, and arguably most important, an exemption which explicitly permits home schooling serves as the basis for adopting explicit home school restrictions to protect California’s interest in education.
B. Adopting Specific Limitations on Home Schooling in California
An explicit exemption permitting home schooling is only the first step which serves as a basis for adopting the restrictions necessary to protect California’s interest in an educated citizenry. As discussed above, the government should only adopt limitations that pass the strict scrutiny test, that is, are the least restrictive means to protect California’s interest. Hence, this section first considers home school limitations widely used by other states. Second, it suggests and discusses two home schooling restrictions; namely, mandatory filing of notice of intent to home school and standardized testing. Third, this section concludes with an analysis of the reasons for rejecting the other commonly adopted limitations.
1. Common Limitations Imposed by Other States
In order to protect their interest in education, other states have enacted explicit home schooling statutes and imposed limitations on home schools. A summary of the widely used restrictions is helpful for two reasons. First, the fact that these restrictions became law indicates that a significant number of legislators thought they would be effective. Second, that these limitations have remained law in many states suggests that experience has bestowed its imprimatur upon them.
The most prevalent restriction enacted requires parents to file an affidavit of intent to home school with local school board or county superintendent of schools. Nearly half of the states also require parents to keep records of courses taken, attendance, or academic progress. A significant number of states require the instructor[s] to meet certain minimum qualifications such as being “competent” to teach, passing a state or national teaching test, having a high school diploma or general equivalency diploma, having a baccalaureate, or having a state teaching certification. About half of the states utilize standardized testing as a method for ensuring that home schooled students are making adequate progress. Finally, a few jurisdictions permit “home visits” by school officials.
This Comment proposes that the California Legislature adopt two of these limitations to provide sufficient oversight and effective enforcement for protecting California’s interest in an educated citizenry.
2. Requiring Parents to File an Annual Affidavit of Intent
California should require all home schooling parents to annually submit an affidavit containing a statement of intent to home school. This limitation serves the purpose of putting California on notice as to which children are being educated at home. Notice is a sine qua non for protecting California’s interest in education because it allows the government to distinguish between truant students and home schooling students. Further, it provides the government with information needed to enforce the standardized testing restriction. Finally, it provides the government with statistical information which can be used in making critical decisions regarding the public school system.
This restriction has been adopted in a majority of states, indicating nearly universal consensus as to its value in ensuring a state’s interest in education. It is also minimally intrusive on the parents’ right since it requires a negligible amount of effort on the part of the parents–they need only provide basic information once a year to the local school superintendent or board of education. No less intrusive method could provide California with notice regarding which children are being home schooled. Further–inasmuch as it is already required under the private school exemption–this restriction will not change the current impositions on home schooling in California.
3. Requiring Students to Undergo Standardized Testing
Merely requiring an affidavit of intent to home school, although minimally intrusive, does not adequately protect California’s interest in an educated citizenry. That is, filing an affidavit in no way guarantees that children are receiving the basic education required to become economically independent and civically conscientious. Hence, the government should enact a second restriction requiring home schooled students to take annual standardized tests. This limitation enables California to ensure that every home schooled student is making adequate academic progress since a passing score means that the student has acquired at least everything that he must know for the core subjects in his grade level. Further, the determination is made using an impartial methodology–standardized testing.
A standardized testing requirement passes muster under strict scrutiny. It does not infringe upon the parents’ freedom to direct the child’s education in any way–except to the extent that the parents must provide the child with minimal competence in basic, core subjects. Further, the imposition on the parents’ time is slight since the testing will only be administered once a year. Additionally, nearly half of the states have adopted standardized testing as a way of establishing that home schooling children are making adequate progress. Finally, standardized testing is single-handedly sufficient to ensure adequate academic progress.
4. An Analysis of the Rejected Limitations
In contrast to these two simple limitations, the other commonly used restrictions, discussed above, either do not as effectively advance the state interest, or unnecessarily trample parents’ fundamental constitutional right to direct the education of their children. Clearly, adding any of these restrictions to the two proposed would violate the least restrictive means prong of the strict scrutiny standard since these two alone adequately protect California’s interest in education.
As stated above, many states require parents to keep detailed records. This requirement constitutes a regular, often daily, imposition on the instructor and therefore is a much more burdensome method for ensuring that the students are making adequate progress than the standardized testing requirement. Hence, this restriction would probably not pass muster under strict scrutiny.
Some states require the instructor to have minimum qualifications such as a teaching certificate or a college degree. The teaching certificate requirement is inadequate because it does not ensure that the parent will actually provide higher quality education. Similarly, a college degree requirement insufficiently guarantees adequate instruction since merely having some degree does not assure that the parent can impart the basic required skills.
Finally, a few states have procedures for “home visits” by school officials. These visits probably violate strict scrutiny since parents could submit any information regarding their instructional format without a highly intrusive home visit.
In summary, the government should adopt two home schooling restrictions from those commonly used in other states; namely, the requirement that parents file an annual notice of intent to home school and the requirement that home schooled children take an annual standardized test. These two restrictions pass muster under a strict scrutiny analysis and together assure California’s interest in economically independent and civically responsible citizens. The government should not adopt any additional limitations to avoid violating the least restrictive means prong of the strict scrutiny test.
The Jonathan L. court’s decision to overrule its earlier holding and recognize home schooling as legal in California demonstrates that home schooling is no longer a fringe curiosity but has become a socially accepted form of education. However, as the court of appeal stated, California has no regulatory scheme which allows the state to guarantee that its interest in economically independent and civically conscientious citizens is adequately protected in each home school. Hence, under current California law, the state’s interest in education is put at risk by home schooling. Therefore, the government should explicitly regulate home schooling. However, parents have a fundamental constitutional right to direct the upbringing and education of their children. Thus, any attempt to restrict home schooling must pass muster under judicial strict scrutiny so that it does not trample this parental right.
In answer to the Jonathan L. court’s plea for clarity, the California Legislature should legalize home schooling by enacting a home schooling exemption to the state’s compulsory school attendance statute. This new exemption would lay to rest any question of the validity of home schooling in California. Moreover, it would simplify the law relating to California’s compulsory school attendance statute. Finally it would serve as the basis for adopting restrictions which advance California’s interest in education.
Additionally, the government should impose two limitations on home schooling: a filing of annual notice of intent to home school requirement, and an annual standardized testing requirement. The first requirement allows California to determine which students are truant and which are home schooled, to enforce the second requirement; and to collect information regarding education in California. This requirement clearly passes strict scrutiny since no viable, less intrusive means exist for informing the state of the parents’ intent to home school. However, this requirement alone is not sufficient to guarantee that students are receiving a minimally adequate education.
Therefore, the second restriction enables the state to ensure that students are receiving an adequate education by testing their basic competency levels in the core classes required by the California school system. This limitation passes muster under strict scrutiny because it does not significantly infringe upon the parents’ freedom or ability to direct the child’s education and has been adopted, in some form or another, by nearly half of the states. Further, it guarantees that the child is receiving an adequate education without requiring further limitations on the parental right. In contrast, the other restrictions widely used by different states either constitute a greater imposition on parental rights or do not as effectively protect the state’s interest.
Finally, there may be pragmatic reasons for California to place even less restrictive limitations on home schooling than required by the Federal Constitution. For example, home schooling’s more individualized focus gives parents greater flexibility and thereby permits them to adapt the curriculum to take into account different learning styles of their children. Further, home schooling allows for experimentation in educational methodologies in a way which is difficult, if not impossible, in a large, bureaucratic public education system. Thus, relaxed home schooling regulations may encourage the variable and experimental aspects of home schooling.
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 taught, or (3) one of the other few statutory exemptions to compulsory public school attendance applies to the child.
Id. (citation omitted).
To say that I was shocked that the court in California ruled that teacher’s certification was the only legal way to teach a child in California is putting it mildly….It reminded me of the days when HSLDA began 25 years ago and teacher’s certification was the ‘sacred cow’ that states were clinging to in an effort to keep home schooling from becoming a viable option.
[a]lthough such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.
Moreover, it was unimaginable that a socialistic state which purported to care for children over and against fit and willing parents would ever result from the state and national governments being created in the wake of our separation from Britain. No one would ever envision a form of government that pitted fit parents against the state over the right to make decisions concerning their children.
Id. at 8.
[t]he Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.
(plurality opinion) (citations omitted); id. at 76-77 (Souter, J., concurring) (rejecting the “State’s particular best-interests standard” as too loose a standard which renders the statute “unconstitutional on its face” since it violates the fundamental parental constitutional right to direct the upbringing of children).
The remaining restrictions on home schooling in California, which are not at issue in this case, include: (a) home schooling parents must file a private school affidavit; (b) home schooling parents must be capable of teaching; (c) home schooling parents must teach in English and shall offer instruction in the subjects required to be taught in public schools; and (d) home school education must be a ‘full-time’ school.
[t]he most persuasive interpretation of the legislative history of the original statutory provisions supports the conclusion that a home school is not a private school. However, the most logical interpretation of subsequent legislative enactments and regulatory provisions supports the conclusion that a home school can, in fact, fall within the private school exception to the general compulsory education law.