As is fairly common knowledge now, on February 28 the California Court of Appeals (from the L.A. area) ruled that (1) California law provides that homeschooling is not allowed unless the parent has a teaching credential, and (2) this law does not violate the United States Constitution, specifically, the right of parents to direct the upbringing and education of their children. Debra and I have had many intense discussions after we found out about this. Debra's first response was one of fear, mostly of the unknown. Mine was a little different. I was (and am) concerned, but I know what the process is, I know what the law is, I know the warriors on our side who are going to be fighting it, and I have a great deal of confidence that God can and will use them to achieve victory on our behalf. Because I used to work at HSLDA and have some knowledge regarding the legal issues and attorneys involved, Debra thought it might be helpful if I laid out some of those thoughts on our blog.
A little farther down, I will get into the details of the Court decision and the law involved, but I think it is important first to consider our attitude. First, we should be vigilant in prayer, pleading that God would turn the heart of the justices toward our side. This is extremely important. God delights to show himself strong on behalf of those who call on his name. Throughout the history of religious liberty and homeschool litigation, we have seen God work in mighty ways to protect his people through the court system, even when it looked like they would lose. Two examples come to mind. Constitutional litigator Jordan Lorence tells the story of how thousands of people were praying for a particular Supreme Court case,
Bowers v. Hardwick. Unbeknownst to all of these people, the initial vote of the justices was 5-4 that would have found a Constitutional right to sodomy. However, in his memoirs,
Justice Lewis Powell says that he switched his vote at the last minute, thus finding that there was no Constitutional right to sodomy. (This was later overruled in Lawrence v. Texas.) God heard the prayers of those people and moved the heart of Justice Powell to change his vote.
Mike Farris tells the story of the Michigan
Dejonge case. In that case, a justice changed his vote at the last minute, so that the case was won by one vote instead of being lost. The Dejonge case may be the most significant homeschool case in the last 20 years. The Michigan Supreme Court found that parents have a fundamental right to direct the upbringing and education of their children. Again, homeschooling families all over the country were praying and there is really no other explanation why this justice changed his vote at the last minute. Interestingly, in the Michigan case, the state was requiring parents to be certified teachers.
The second attitude is that we will not give up. Homeschooling is so important that we will exhaust every avenue to prevail. In the summer of 1940, England stood nearly alone against the Nazi hordes and there were many people in England who thought of giving in and negotiating peace terms. Fortunately, Winston Churchill was Prime Minister at that time and he stated as follows in a
speech to the House of Commons on June 4, 1940:
We shall go on to the end, we shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender . . ..
We must have the same attitude with regard to homeschooling. As discussed below, there are considerably brighter chances of victory for us than England had in the summer of 1940, but there may be some dark hours that we go through. We must remember that we can never give up and never give in. This is non-negotiable.
Now, we will turn to the decision, why it is wrong and what will be done next. The
decision can be found here if you would like to read it. It is really a poor piece of appeallate writing and handles the Constitutional issues with all the precision of a hippopotamus. Poor appellate writing often flows from either (1) poor representation of one of the parties, thus giving the court little feedback from one side of the issues, or (2) the court's desire to rule a particular way, compounded by laziness in not fully addressing a particular issue. I don't know which it was in this case, but my guess is it may have been a little of both.
First, the decision conclusorily states that being taught at home cannot satisfy the private school law. It relies for that finding on two 50-year-old cases, Turner and Shinn. Both of these cases were decided before the modern proliferation of homeschooling and both make an argument that is kind of like this: (1) it's not a "school," its a home, (2) so, unless there is some brick and mortar school there, it does not qualify under the private school exception. The other argument made is that the legislature specifically provided for homeschooling, but only if the children are taught by a credentialed teacher. If the legislature had meant the private school option to apply to parents teaching at home, they would have said so. Both of these arguments are do not do the statute justice.
Second, the court only cursorily examines the issues of Constitutional law, specifically, the right of a parent to direct the upbringing and education of the child and their religious liberty in so doing. The Constitutional question is quite complex, but the Supreme Court has held in several cases (notably
Pierce v. Society of Sisters,
summary here, and
Wisconsin v. Yoder,
summary here) that parents have a fundamental right to direct the upbringing and education of their children and that when parents are also exercising their religious belief by how they educate their children, there are significant Constitutional protections for those parents. The California opinion swatted away those Constitutional arguments as if they were pesky flies and went on to their ruling. Interestingly, I think the court actually left the door open for a finding that the law does violate the parents' Constitutional rights as long as more facts are determined. The record was apparently sparse.
What will happen now: I understand that the parents are appealing and that HSLDA and others will file an amicus. I also understand that HSLDA is attempting to get the opinion depublished so that it does not affect anyone else in California. A depublished opinion has no precedential value in California. You can help with this effort by going to
http://www.hslda.org/ and signing the petition to depublish the case. If both of those efforts are unsuccessful, there are a lot of other things that could happen and it would be folly to speculate right now. Suffice it to say that this could be a battle that continues for a long time, even if we lost on both of those fronts.
She was so pleased to present her work! It is not uncommon for her to pick the flowers and bring a handful in to me, but this batch she took the time to "plant."
My little girl is growing up in so many ways!
He loved the Florida beach last summer! 
Sweet little guy! He is so kissable!
This is where I found him hiding...with the spiders under the slide! He was pretty pleased with himself. :-)
Did I mention that he is fearless? He LOVED sledding at the snow! Here he is with Aunt Mary. One day he's going to get me for buying him purple snowpants...but they didn't have any boy ones left!
One thing I really appreciate about Caleb is that he always wants to help
Enjoying the new play structure Daddy made
Having lunch at Nana's restaurant after church.
He is definitely Daddy's boy!
I'm one of the big kids, Mom!
Having his "quiet time"
He LOVES dirt. This is right before he took a big bite out of some clod he found...
Everybody cuddles with Mommy to watch a movie!
He loves to color!
Hunting for eggs at Eastertime
He likes to be like Daddy, and wear his safety glasses when he's using his tools...
This is one of my favorites, taken by our dear friend, Veronica Campbell.