destroy the home schoolers in order to save them

Some of my colleagues have noticed the news flurry about home schooling and the sudden declaration of its illegality by a panel of federal judges in Los Angeles. The formal decision features a spicy stew of judicial threats to parents, in a section entitled “Consequences of Parental Denial of a Legal Education”.

That certainly got my attention and that of many friends, since (dare I now admit?) I've been home schooling my children since 1987. Two have finished with honors at good universities and are now productive taxpayers, two more are now making their way through college, and the rest are ahead of grade level and nicely socialized, thank you. Who knew my wife and I were guilty of Parental Denial of a Legal Education? (Gotta get some of that Legal Education. It must make you as wise as a Judge.) To those of us in the home schooling community, the general consensus is more adequately phrased in a San Francisco Chronicle Op-Ed: “What planet are those judges coming from?” I realize the education of one’s children is a culturally subversive thing to do, but since when is California suddenly shy of cultural deviancy?

One can only wince in wonder at the ideal California those judges are contemplating. The state has an interest in many children’s rights beyond mere education, such as nutrition. Perhaps we should require parents to be certified dieticians before they cook their children’s lunch. Or, let’s just go all the way and eliminate the inconvenient families, by requiring a parental license before the first child is brought to term. That would bring everything nicely under control, and our Wise Judges could rule a utopian, aristocratic Plato’s Republic—which is really a nice place to study, but a terrible home.

In my own home town of San Jose, I just noticed a reasonable Mercury News editorial on the subject. Common sense still rules in San Jose!

I make one key exception to the Merc.’s editorial position: All else being equal, I as a private citizen greatly prefer benign neglect to any form of regulation. But unlike us private citizens, editorial writers and politicians seem to have a professional rule: Never make ringing calls to do nothing. (And the corollary: Never be without a ringing call.) I am thankful that, somehow despite all the political fidgeting, life goes on anyway.

Also, I’m proud to say that the two debaters the Mercury mentions are from our group’s debate club. I think it is not too much to hope that, in their day as judges or other community leaders, they will write better opinions.

In the end, my advice to judges, and even to friendly editorialists and politicians, is: Leave parenting to us parents. It worked when all of us were growing up, and it works now.

August 2008 Update: The court has reversed its decision. Here is Governor Schwarzenegger's take on it:

This is a victory for California's students, parents and education community. This decision confirms the right every California child has to a quality education and the right parents have to decide what is best for their children," he said. "I hope the ruling settles this matter for parents and home-schooled children once and for all in California, but assure them that we, as elected officials, will continue to defend parents' rights.
And Superintendant Jack O'Connell says,
As head of California's public school system, it would be my wish that all children attend public school, but I understand that a traditional public school environment may not be the right setting for each and every child... I recognize and understand the consternation that the earlier court ruling caused for many parents and associations involved in home schooling. It is my hope that today's ruling will allay many of those fears and resolve much of the confusion.
(Source: LA Times.)

Couldn't agree more. Well said.

Posted by namestka on March 12, 2008 at 11:08 PM PDT #

This is a very annoying subject, because of the complete misunderstanding of the opinion. The court did not make a "sudden declaration" that homeschooling is illegal. What happened is that we had a case of (allegedly) abused children being represented by a lawyer who in acting on their behalf, believed that the parents were not providing an adequate education at home and recommended that they be sent to school. The parents successfully blocked that in court, claiming that they had a constitutionally guaranteed right to home school their kids. The court agreed. The county appealed, and the appeals court responded that their was no such guarantee in the constitution, and remanded the the case back to the lower court to determine if the \*already established\* statutory regulations regarding home schooling were being met. The appeals court did offer the (non-binding) opinion that they were not.

So, the appeals court did not do anything at all, not even closing the book on this one case. The real problem is that the California laws about home schooling are fairly strict, and because they are enforced locally by the school district, there is a strong cultural component as to whether it can be done. When I was a kid growing up in L.A., nobody was home schooled because it was too hard to met the standards and the LAUSD was adamant that they be met. Lately, the districts have been more lenient in this regard. But the legality has not changed, not now, not even in many years.

I agree that the legislature should refine the regulations, but the reality is that home schooling has fallen into just that "benign neglect" that you advocated. And it would be still if there hadn't been all this hype about this one case.

Posted by Brian Utterback on March 13, 2008 at 01:48 AM PDT #

Brian: Your lengthy comment was interesting, but since you and I are both engineers, I would appreciate a publishable reference to a professional analysis of the vacuity of this "hype"; I assume you are relying on something like that.

I would agree that the are partial misunderstandings surrounding this case, but I cannot see where to take your claim of "complete misunderstanding". My information comes in part from lawyers that have been doing home school law in 50 states for decades, who see a real issue here. Here's a reference to a professional opinion which may help you bridge the "hype gap" between the actual court ruling and all the op-eds.

Posted by John Rose on March 13, 2008 at 03:42 AM PDT #

No, that was just my analysis from reading the opinion (prior to today, of course. It is rather long). I don't disagree with anything in the link you gave to HSLDA, except that I really think that if there had not been the hype around the decision, the status quo would have remained. This might ultimately turn out well, since the status quo was that the government was turning a blind eye towards home schoolers, rather than have the practice realistically regulated.

One thing that was misleading in the HSLDA piece is that although the court ruled that there was no constitutional right to home schooling, this was not a new ruling. It was merely citing many pre-existing cases that also so ruled.

Posted by Brian Utterback on March 13, 2008 at 03:59 AM PDT #

Sorry, one more thing. The op-ed piece also was in error. The judges did not decide that a credential was necessary to teach a child at home, this was the requirement already pre-existing in the state laws, duly past by the state legislature. If the writer has a beef with this requirement, he should blame the California congress, not the Appellate court judges.

Posted by Brian Utterback on March 13, 2008 at 04:05 AM PDT #

Nice entry, Dad.

I read through the opinion and had a couple additional thoughts:

While the opinion itself is certainly small-minded and even inflammatory, the real problem is with California's compulsory education law. The LA decision interprets the Educational Code relatively accurately--I don't see a legal exception for home education. We should focus on convincing the legislature to amend the Ed. Code to fix this.

Also, while many of the facts surrounding this case and the family in question are under seal, they definitely do not seem to be the right poster-family for educational rights in California. Aside from the allegations of abuse, most troubling is the dependency court's observations that the kids' education was "lousy," "meager," and "bad." Parents' may well have a right to provide an education without regard to quality, but this seems like a losing battle. Consequently, I think HSLDA shrewd to seek depublication, rather than pitched battle.

Finally, to all those doubters: There are families in the world that choose to home school their children for the wrong reasons. Consequently, I've met a \*small\* handful to undereducated home schoolers. However, the percentage of undereducated kids in the public school system is FAR greater than in the home school "system." That state licensing somehow correlates to quality education is preposterous.

Nothing is perfect, but the overwhelming majority of home schooling parents are a self-selected group of especially dedicated and intelligent parents. While they rarely have professional training in primary and secondary education, they have the intimacy of the parent-child relationship--something no credential can offer.

Posted by Joe on March 14, 2008 at 07:16 AM PDT #

Brian: Regarding your claim of "many pre-existing cases" and your account of the "pre-existing state laws". That is a plausible but incomplete picture: California in fact provides a favorable legal environment[1] for home schooling, in part because the laws for private schools are properly libertarian. My family has been operating under this pre-existing reality for 20 years.

When matters get contentious, we must (reluctantly) rely on the legal pros to enumerate, weigh, and apply statute and precedent. According to HSLDA, "We believe that the court made a mistake when it relied on a decision from 1953 in order to show that homeschooling is not a legal option"[2], and CHEA says "this court has made critical errors in their interpretation of private school laws as they apply to private home education"[3]. In a recent interview[4], a couple of law school professors find the Los Angeles opinion to be oversimplified: "There’s a lot of case law since that 1953 decision, and I’d be surprised if this stands up to it" (John Eastman, Dean of Chapman Law) and "I have read Justice Croskey’s opinion. It’s a very short opinion for such a major issue" (Erwin Chemerinsky, Duke Law).

Poor application of statute and precedent is one way court decisions go bad. That's why a court is a "court", i.e., an open proceeding, to ensure that poor reasoning can be corrected by things like amicus advice, before it is finalized. But the Los Angeles proceeding was confidential because of the minors involved, and hence closed. So the damage control has to come after the ruling, not before.

Joe: Thanks for your careful comments. I suppose the best non-empty legislative action would explicitly recognize the status quo, i.e., the customary application of the private school provisions of the compulsory education law to those parents who choose to take on the burden personally. Timeo Danaos: Asking for new legislation is like asking the Goths to come help you defend the empire from the Vandals; when it's over the emperor is liable to find himself replaced, because the Goths will have their own ideas about how to run things. (Sounds like a nice dark Edward Gorey fairy tale...)

Add that to the fact that most people accept, and some legislators love, the idea of compulsory indoctrination of all "our" children (though not of "our" adults). Few would blink and some would rejoice (including some of my friends at work) if California suddenly became more like Germany in this respect. I warmly appreciate Gov. Schwarzenegger's intentions to support us legislatively if necessary, but hard work and some divine intervention may be necessary to make the outcome resemble his good intentions.

Thinking about this stuff is a tax on real life. (A necessary one sometimes. Thanks for helping!) I will now raise a caffeinated toast to benign neglect, and to get back to software engineering.


Posted by John Rose on March 14, 2008 at 08:30 AM PDT #

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John R. Rose

Java maven, HotSpot developer, Mac user, Scheme refugee.

Once Sun and present Oracle engineer.


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