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.
–Pierce v. Society of Sisters, 268 U.S. 510 (1925)
Some commentators, not unreasonably, are pointing out that the decision by a California intermediate appeals court finding that there is no “right to uncredentialed homeschooling” is actually based on long-standing precedent, including Pierce v. Society of Sisters, quoted and hyperlinked above.
One succinct example from QandO:
So, I’m not sure what all the uproar is about, at least in terms of the legal issues. The Supreme Court made this determination in 1925.
The “uproar,” as I explained in a comment at that blog, is as follows:
Are you suggesting that Supreme Court decisions are never wrong or outrageous?And, incidentally, your reading of Pierce is itself wrong. It did not explicitly hold there is “no right to homeschool.” It held that a state may “require that all children of proper age attend some school.” The notion that (acceptable) homeschooling is not “some school” is a novel and controversial interpretation.
Given that Pierce is widely considered to be one of the first “substantive due process” cases, it is hardly surprising that libertarians are aghast at seeing it now used as a sword against parental autonomy. It would be akin to suggesting that Roe v. Wade authorized state laws requiring compulsory abortions.
Again, the question, properly framed, is not whether states should have the power to ban homeschooling, but instead what authority states should have to prevent bad homeschooling, with “bad” determined on a case-by-case basis in the same way that the state intervenes in matters of child abuse or neglect.
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3 responses so far ↓
Link Skip Oliva // Mar 8, 2008 at 9:55 am
Your question is poorly framed. The state cannot prevent bad homeschooling–it can only force the institutionalization of the child in a state-sanctioned school, which itself is a form of child abuse and neglect.
Link Crimson Wife // Mar 8, 2008 at 1:05 pm
The 2nd Appellate Court ruling hinges on a very Clintonesque discussion of what the meaning of the word "in" is in Section 48220 of the CA Ed. Code. Nowhere in the code does it state that a "full-time private day school" cannot be located in the parents' home, but the judges ruled that only traditional private schools qualify based on what they believe the legislature intended.
The best option IMHO would be for the CA Supreme Court to "depublish" the ruling. That would make it binding on the Long family (about whom there may be legitimate concerns given the abuse allegations) and not all 166,000 or so homeschoolers in the state.
Link Land of the Laws // Mar 10, 2008 at 7:47 pm
I guess you can call me one of those "libertarians" that's "aghast" at using Pierce as a sword. That case stands for broad substantive individual rights, not the idea that kids are pawns of the state. I blogged on this point myself:
Parents No Longer Allowed to Teach Their Own Children?
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