Homeschool is a constitutional right for parents

Can California force parents to send their children outside the home for their education, regardless of the quality of instruction they receive at home? Today, the California Court of Appeal in Los Angeles will hear arguments in a case raising this issue - the constitutional rights of parents to direct the education of their children. The case arises out of a dependency hearing in which court-appointed attorneys for Jonathan and Mary Grace, two minor children who had been receiving instruction at home, asked the trial judge to order them to attend public school. The judge refused on the grounds that the parents have a constitutional right to homeschool their children. But the Court of Appeal reversed the ruling and interpreted California law as requiring homeschooling parents to have teaching credentials.

Understandably, the appellate court s decision in February created an immediate controversy with homeschooling and parental rights advocates across the nation. Subsequently the Court of Appeal, in an unusual move, decided to withdraw its first decision, request additional briefing, and hear the case again.

But - should the court ultimately rule the same way - a mandate against homeschooling, rather than a focus on the merits of this individual case, makes no sense. For one, the court can resolve the appeal without addressing the constitutional issue by interpreting state law not to require credentialing for homeschool instructors.

Further, experience shows that homeschooling works and that public schools don t always provide quality instruction. Consider that California s educational system is consistently in the bottom 10 percent as compared to the rest of the states, while homeschoolers are winning the national history and spelling bees on a regular basis. What s more, the California Department of Education s most recent data shows that the high school graduation rate for students who attended from 2002 - 2006 was 67.1 percent. That s 1-in-3 students not getting a diploma.

But perhaps more important than any of the quality-of-education issues raised by this case is whether the state has the power to require parents who wish to instruct their children at home to obtain a teaching credential. The U.S. Supreme Court has long interpreted the Constitution as protecting parents rights to direct and oversee the education of their children. More than 80 years ago, the Supreme Court noted, in a case challenging an Oregon law requiring all children to attend public schools, that "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."

And the court has continued to emphasize since then that the state must defer to parental decision-making. As Justice Sandra Day O Connor wrote in a case from the Supreme Court s 2000 term, "[T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child-rearing decisions simply because a state judge believes a “better” decision could be made."

Of course, the state has the power to ensure that children receive a quality education. But the truth is that competent instruction can be received just as well at home as it can in public or private schools, and that parents should be the ones to decide where their children will be educated. The court would therefore do well to respect the constitutional rights of parents by sticking to the merits of the individual case being argued today and not make any pronouncement on homeschooling generally.

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Tuesday, June 24, 2008 | 08:53 WIB 235