California Court Considers Whether Parents Have the Right to Home School Their Children and It’s Potential Impact on Family Law

 

More parents are opting to home school their children; an estimated 166,000 children are home schooled in California. There are many reasons why parents elect to home school children: some parents feel that their child will learn better in a one-on-one environment; some parents are concerned that their child’s needs or family values are not adequately addressed in public or private schools, and still others are concerned about their child being exposed to a potentially stressful situation including bullying or teasing. As a parent, do you have the constitutional right to home school your children?  The California Court of Appeal, Second District recently considered this very issue.

 

The Court’s decision most likely will have an interesting impact on Family Law in the realm of custody/visitation and child/spousal support.  The issue will potentially arise when parties go their separate ways with minor children involved, whether via divorce proceedings or the dissolution of a relationship (Paternity).  If one parent has historically home schooled the couple’s children prior to divorce, will the Family Law Court still take into account the status quo even if the Court holds that a parent does not have a right to home school their children.  Does this mean that the minor children must be enrolled in public/private school?  What if several years after the divorce, Mom decides it is in the children’s best interest to home school the couple’s three (3) minor children, and Dad does not agree?  If the Court holds that a parent does have a right to home school their children, it is most likely that Mom will be able to do such as long as she can show it is in the best interest of the children.  If a parent does not have that right, it is more likely that Mom will not be able to home school the children.  The Court’s decision will have an effect on determining what is in the “best interest” of the child.  The argument for home schooling is weakened if the Court determines that parents do not have the right to do so.

 

The Court’s decision can also impact support issues.  If Mom is a stay-at-home caretaker and home schooling the children, her income is most likely going to be zero.  The California child and spousal support calculations take into account many different variables to determine the amount of support.  The most critical factors are each parties respective incomes and the time each parent spends with their children.  If Mom is allowed to stay at home to home school the children, the financial impact to Dad can be great.  I can foresee many practitioners making the argument that if Mom chooses to stay home to home school the children, she should at least be imputed the income of a teacher, (approximately $35,000 to $45,000 per year).  This would help to alleviate the financial burden on the paying spouse.  On the flip side, Mom’s counsel will argue that the benefit to the children, the amount of expenses saved by home schooling the children, far surpasses imputing income to Mom.  This decision will expand the practitioner’s ability to present effective arguments and will open a new field of case law in the Family Law context.

 

Plato observed that, “The direction in which education starts a man will determine his future life.”  With that said, the impact of the outcome of the Court’s decision will have loud resounding effects. 

 

The In re Rachel L Case

On February 28, 2008, the California Court of Appeal, Second District ruled in the case of In re Rachel L (B192878) that parents do not have a constitutional right to home school their children. The Court of Appeal remanded the case back to the Dependency Court, instructing it to order the parents, unless there is a legal ground not to do so, 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.

 

The case was initially filed in Dependency Court by the Department of Children and Family Services after the eldest child reported that their father was emotionally and physically mistreating them. The younger two children were assigned minor’s counsel who asked the dependency court to order the parents to enroll the children in a public or private school. Although the dependency court acknowledged that the children’s home schooling was “meager,” “lousy,” and “bad,” it denied minor counsel’s request and ruled that the parents had a constitutional right to home school their children. Minor’s counsel then filed a petition for extraordinary writ in the Second District of the California Court of Appeal, claiming that the dependency court’s refusal to order attendance in a public or private school was an abuse of discretion. The Court of Appeal held that the dependency court had made an error at law in ruling that the parents had a constitutional right to home school their children.

 

California Law

Under the California Education Code § 48220 et seq., enrollment and attendance at a full-time public day school are required for minor children unless one of the following applies:

• the child is enrolled in a private full-time day school and actually attends that private school;
• the child is tutored by a person holding a valid state teaching credential for the grade being taught; or
• another statutory exemption applies, such as the minor holds a work permit to work in the entertainment industry.

 

In the case of Rachel L., the parents had enrolled the children at a private school, but the children did not actually attend the school. Furthermore, the children’s mother was conducting the home schooling, but she did not have a valid state teaching credential.

 

Constitutional Law

The parents argued that California’s compulsory public school education law was unconstitutional. Specifically, they claimed that the U.S. Constitution granted parents the right to choose their children’s education. The California Court of Appeal disagreed with the parents. The court pointed out that the provisions of the California Education Code in question were held constitutional by the United States Supreme Court in People v. Turner (1953) 121 Cal.App.2d Supp. 861, 865 et seq., (“Turner”). The Turner Court reasoned that it was reasonable to require a credential for a home school tutor because of the extreme difficulty of supervising every child being home schooled. On the other hand, full-time private school teachers need not be credentialed because the private school would supervise the teachers and “would have an interest in maintaining the required standard of instruction…so that the schools would continue to qualify for the private full-time day school exemption.” (Turner at 867-868).

 

Disposition of the Case

The California Court of Appeal granted the writ and remanded the case back to the Dependency Court. Parents of home schooled children and home schooling advocates were alarmed by the ruling and the ruling sent immediate shock waves throughout the nation; even states as far away as Georgia have raised concerns about how this ruling might impact home schooling in their state.

 

Rehearing Set for June

The California Court of Appeal has agreed to reconsider the case. New arguments have been set for June of 2008. In granting the rehearing, the prior order of the Court of Appeal is vacated, which means it is set aside or annulled. Usually a rehearing is granted to address minor revisions. In this case, however, it appears that it may relate to the major holding of the case. The court has asked for written arguments from several parties, including state and local officials as well as the teachers unions. This suggests that the court will completely re-examine the underlying case, Jonathan L. v. Superior Court of Los Angeles, B192878. It appears the court intends for the case to be fully argued.

 

With a rehearing in June and the possibility of this issue eventually being heard by the California Supreme Court, a final resolution can be months or even years away. With so many people affected by the decision, this case will be one to follow.

 

Thurgood Marshall opined that “None of us got where we are solely by pulling ourselves up by our bootstraps. We got here because somebody (a parent, a teacher, an Ivy League crony or a few nuns) bent down and helped us pick up our boots.”

 

Whether our children are able to be taught by their parents in their homes or by credentialed school teachers in public/private school settings, if the teacher is teaching from the heart and the student learns to see the vitality in themselves, the job of education has been done.

 

 

This entry was posted on Monday, September 29th, 2008 at 11:27 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.