Which raises the entirely understandable question, the legacy of Buck v. Bell notwithstanding, of what if anything the government can or ought do about her.

Some observers, for instance, have no problem whatsoever with a Holmesian tax-based eugenics solution:

On the Internet, bloggers rained insults on Suleman, calling her an "idiot," criticizing her decision to have more children when she couldn't afford the ones she had, and suggesting she be sterilized.

"It's my opinion that a woman's right to reproduce should be limited to a number which the parents can pay for," Charles Murray [not the American Enterprise Institute scholar] wrote in a letter to the Los Angeles Daily News. "Why should my wife and I, as taxpayers, pay child support for 14 Suleman kids?"

That reasoning almost sounds downright libertarian — there is never a right to mooch off others, and a child is hardly a legitimate "public good" warranting government financing.

But the Cato Institute's Michael Cannon stands athwart:

Those responses are a predictable consequence of government charity. They reflect the same selfish rationale that the Church of Universal Coverage uses to argue for eliminating your right to choose health insurance. If somebody is abusing generosity, the appropriate response is not to take away their rights but to take away the generosity.

I'm sympathetic to Cannon's point, but I don't think socialized medicine is the best analogy.

The problem with socialized medicine is precisely that it is not "generosity." A person who pays Medicare and other taxes over an entire working career and then tries to recoup those extractions via government health care is hardly the recipient of "generosity" (cf., my flagship post on the subject).

The better analogy for Suleman isn't Medicare but Medicaid, which is the truly "generous" (i.e., humane, classical liberal) safety net program. There is no contradiction whatsoever in simultaneously demanding that Medicare have relatively few restrictions but that Medicaid can have far more, since only the latter can truly be called "generous."

A key component of the obfuscation machine undergirding the entitlement state is the relentless quest to confuse a truly social safety net and omnipresent government control for its own sake, a/k/a Kip's Law. Libertarians must be ever vigilant and avoid getting lost in the fog of "who pays for whom."

—

Going back to Suleman, there is another basis for government intervention in her case, one that is truly libertarian: protecting the rights of the children.

One more time: Children are not chattel, and there is no such thing — even in Libertopia — as a plenary right to raise children in a negligent, dangerous or unhealthy manner or environment. Libertarianism is all about protecting rights, especially rights that one cannot defend oneself. Surely that extends to rescuing children from incompetent, dangerous or abusive parents.

The devil is undeniably in the details — what, exactly, constitutes "negligent, dangerous or unhealthy"? Tough question. No dispute there.

But there are certain easy cases, certain asymptotic extremes that, when viewed properly, prove not only the viability but the exclusive viability of the "kiddie libertarianism" model of governemnt interventionism in childrearing.

Banning (medically unnecessary) infant circumcision, which no true libertarian can rationally oppose, is one example. Rescuing the FLDS/YFZ children from their incestuous, psychopathic custodians was another.

And, yes, the Octo-Bimbo is, sadly, yet another.

Previously:
–Children's Rights versus Parents' Rights: Case Studies

Today's Kip Clip is dedicated to Obama's hypocrisy*:

The letter from Hampshire Social Services was as brief as it was bewildering. "Please ring me on the above number," it said. "I have some information that might be of interest to you." This was quite an understatement, as Michael Shergold soon found.
…
They said he was the father of another child — a five-year-old son from a previous, short-lived relationship. A former girlfriend, unable to cope with the demands of motherhood, had handed the boy over to foster parents.

A meeting with this new-found son was out of the question, he was told, let alone any sort of relationship. He was also informed that the boy was to be formally adopted and that the council was ringing merely to let him know.
…
Michael tried to adopt his son but last year he lost the battle and was refused even occasional visiting rights, which were deemed too upsetting for the boy.

Let's pause here. I know nothing about the subtleties of U.K. family law. But I know that a core principle of enlightened jurisprudence is that a waiver of rights must be knowing and voluntary if it is to be binding. A parent, who not only never harmed his child but never even had a chance to harm his child, ought to retain at least some of his parental rights.

Any fit and competent adult who becomes a biological parent, even unknowingly, and who never actively waived his right to be the child's parent, ought at least to have a right of access to the child. A right to adopt the child, or to nullify a previous adoption, might be a stretch — innocent adoptive parents have rights too. But a right to visitation (coupled of course with the duty to financially support) ought to be presumptive in the absence of some particularized reason of unfitness, such as a heinous criminal record or something of that nature. More should be required of the authorities than "Oops."

Let's also acknowledge the rights of the child here, including the right to as much familial love as is available to him. I am utterly bewildered as to how child welfare authorities could somehow conclude that bringing another loving relative into a five-year old's life could be "too upsetting."

If there is some "balancing rights" issue here, as is so often the case with problematic family law fact patterns, then I fail to see it. I only see rights being violated — Sherwood's and his son's.

This post could have ended with that. Unfortunately, as the saying goes, "but wait, there's more!"

But there were extraordinary surprises in store for Michael and his wife, Alex. Hampshire Social Services wanted more than just his acquiescence.

Andrew, it emerged, had been diagnosed with a severe problem in one of his organs. For legal reasons, it is not possible to be more specific.

But the boy stands little chance of living beyond his teenage years without a transplant — from a blood relative if at all possible. The most suitable blood relative, it was explained by social workers, was Michael himself.

In a disturbing saga, this was perhaps the most unpleasant twist of all. It brought him to a damning conclusion — that Hampshire Social Services had made him aware of Andrew's existence only to provide the child with a body part.

I've read that text dozens of times now — and I'm still stunned every time I read it.

The one observation I can come up with is that this abomination illustrates the evil of pure utilitarianism. Apparently, a supposedly civilized nation has now become perfectly willing to have its citizens literally start carving each other up based on some low-level bureaucrat's determination of "the greatest good for the greatest number."

(But, meanwhile, it is still apparently irredeemably monstrous to even discuss the notion of competent consenting adults selling their organs in a private market. Go figure.)

If the government presented me with the dilemma it has so pointlessly and cruelly foisted upon Michael Shergold, I would probably have a nervous breakdown. (Keep in mind that Shergold has two other minor children. The surgery would pose a serious risk to him and, vicariously, to them and their welfare.) How do you chose whose interests to prioritize from among your children — especially when, thanks to the coercive power of the government, you have bonded with your children in very different ways? What thought processes could possibly have led to this nightmare?

The one moral anchor I can find in all this is the axiom that "morality ends where the barrel of a gun begins." The government is using its coercive power to paint Mr. Shergold into this corner. He has been effectively stripped of any moral obligation one way or the other and must be excused regardless of what choice he makes. No matter what he does, someone he loves suffers. I hope the ghastly drones of Hampshire Social Services are happy.

I've taken some flak on this blog for suggesting that parental rights have limits, particularly in the context of inadequate, religiously-based homeschooling. But wherever the limits of parental rights is, that limit is surely greater than "None."

—

One additional hasty stitch:

The Mail on Sunday asked Hampshire County Council two months ago about its handling of the case. It responded by obtaining a legal injunction to prevent us printing Michael's story, claiming that to do so might damage his son's chances of settling down.

Determined that Michael should get the chance to speak, The Mail on Sunday has pursued a lengthy legal fight to lift the injunction, and last week we succeeded. Today, in this exclusive interview, Michael is able to talk about his ordeal for the first time.

Just another reminder that there is no First Amendment in Europe. But you already knew that.

The homosexual agenda wants people to think that homosexual men are safe for women to hang around and even be alone with. Nothing could be further from the truth. The stories about Sodomites in the Bible teach us that they do violate women as well as men. I've also known of people personally over the years who were known as gay yet "experimented" with the opposite sex. The term bisexual is an unnecessary distinction, because a faggot wants to defile anyone or anything he can get his hands on.

Of course, this "Christian" will no doubt respond with a heaping dose of Christ's love, right?

A friend recently sent me this article about a "gay-friendly" high school. If we were living in a biblical society, homosexuality would be punishable by death so such a school would be unnecessary. Although I'm against the special accommodations, perhaps this new trend of segregation will protect straight kids from these predators. With any luck, some radical will blow up the gay school. No, I'm not condoning vigilantism — I'm merely saying that it would be poetic justice.

Poetic? Like the overtly sexual (i.e., filthy and perverted) Song of Solomon? Justice? As in, "judge not, lest ye be judged"?

Did I mention that this "Christian" posted this on her homeschooling blog? Or, more correctly, her former blog, which she has since moved here — complete with the same sort of "instructional material" she's abusing her children with — one excessively toxic sample here ("We need a revival of old-fashioned righteous indignation and hatred for sin and perverts.")

But like an angel dancing on the pin of her head, we do have the Google cache — at least for a while.

(Via Respectful Insolence.)

—

Not that I was being a predatory voyeur or anything, but I find it fascinating that elsewhere in her blog this gay-paranoid "Christian" mother was giddily excited about her young son competing in a karate class.

Um, violent male-on-male bodily contact based on non-Christian rituals invented by a pagan culture? Obviously the woman wants to see her son grow up to be a Hell-Bound Sodomite™. Has she no shame? Pray for her — and especially for her (homeschooled) children…

Previously:
–Homeschooling is a Double-Edged Sword
–The Children's Jesus Camp Story
–More on Evangelical Madrassahs
–What Kind of People Support Mike Huckabee?

So I of course welcome this development:

Ending years of debate and delay, Gov. David A. Paterson on Friday signed into law a bill shielding sexually exploited girls and boys from being charged with prostitution.

The law, known as the Safe Harbor for Exploited Youth Act, will divert children under the age of 18 who have been arrested for prostitution into counseling and treatment programs, provided they agree to aid in the prosecution of their pimps.

It has been the subject of intense debate in the State Legislature and beyond, and was opposed by some law enforcement officials and by the Bloomberg administration, which argued that the bill would make it harder to crack down on prostitution.

But the bill's backers said it was wrong to treat under-age prostitutes — many forced into the sex trade and kept there with physical threats and abuse — as criminals rather than victims.

Makes perfect sense to me. I find it depressing (but not surprising) that the move was ever considered controversial and that it had so much trouble getting through New York's dysfunctional state legislature.

I have three other hasty stitches:

1. Wouldn't it be nice to see, as a stepping stone toward decriminalization, drug offenses treated the same way? Why should drug users (i.e., the victims) ever be prosecuted for buying drugs? Aren't they "incompetent" (i.e., as addicts) much the same way that minors are deemed incompetent? Why not make the same offer: Get treatment, disclose your source, and face no criminal penalty?

2. Teens who engage in prostitution, especially those in New York City, overwhelmingly do so because they are runaways with no other means of survival. And a disproportionate fraction of those runaways are gays, either disowned by their families or fleeing hostile communities (e.g., this source claims 42% of New York's homeless youth identify as gay or lesbian; this source says "more than 20%"). Any policy discussion regarding the plight of teen runaways should incorporate the causal impact of anti-gay bigotry on the problem. (See also my previous posts on the role of anti-gay bigotry on teen suicide and suicide-ideation rates.)

3. What does it say about contemporary criminal justice that I had to use the term "predatory" crimes in my opening sentence (i.e., as opposed to "victimless" crimes)? Should conduct that is not "predatory" ever be a crime in the first place?

(Via CrimProf Blog.)

—

This is a bit off on a tangent, but what was I just saying about "someone cannot simultaneously be the perpetrator and the victim of the same crime"?

Police in Newark, Ohio, have arrested a 15-year-old girl on juvenile child pornography charges for allegedly sending nude cell phone photos of herself to classmates. … Authorities were also considering charges for students who received the photos.

The reason we afford absolutely zero First Amendment protection to child pornography is because children cannot competently consent to the act and the harm to them is simply too great. But how does arresting children serve to protect them? How can an (innocent) victim also be a (guilty) perpetrator? It's absurd. (UPDATE: It now appears that the girl may also have to register as a sex offender. I repeat: It's absurd.)

Gruesome Example Number 1:

A toddler whose remains were found inside a suitcase in Philadelphia in April was starved to death by members of a religious cult, including his mother, in part because he refused to say "amen" after meals, police said.
…
Members did not seek medical care for Javon [Thompson] when he stopped breathing, and the boy died in his mother's arms, according to court documents. He would have been about 19 months old when police say adults stopped feeding him in December 2006.

A quick preliminary: I hope no one would seriously suggest that there is a First Amendment right to starve an infant to death "in God's name." I also hope that this uncontroversial premise might at least allow debate about the follow-up assertion that there is no First Amendment right to raise your child to be a functional illiterate "in God's name."

But that is not the point of this post.

Libertarianism is occasionally described as the advocacy of a "night watchman state." To the extent that this is a correct description, shouldn't the night watchman be watching over babies as well? Disagreeing over precisely where to draw the line between "unorthodox parenting" and outright abuse or neglect presupposes an initial agreement that the line actually exists.

It's not even a component of the debate between "hard libertarianism" and classical liberalism. Insisting that the government has a responsibility to protect babies from lethal parents has nothing to do with "muddying the waters" or "selling out" by advocating a minimal social safety net to the military-police-courts paradigm of Rand and others. If individual rights are paramount (as all libertarians by definition insist they are), then that includes minors and especially babies — the social safety net has nothing to do with it.

There is no basis for defaming libertarianism — as so many do — by insisting that we would look the other way and let Baby Javon die. It's simply not true.

(Via QuizLaw.)

—

Gruesome Example Number 2:

Her name, her mother had said, was Danielle. She was almost 7 years old.

She weighed 46 pounds. She was malnourished and anemic. In the pediatric intensive care unit they tried to feed the girl, but she couldn't chew or swallow solid food. So they put her on an IV and let her drink from a bottle.
…
Her caseworker determined that she had never been to school, never seen a doctor. She didn't know how to hold a doll, didn't understand peek-a-boo. "Due to the severe neglect," a doctor would write, "the child will be disabled for the rest of her life."
…
She wouldn't make eye contact. She didn't react to heat or cold — or pain. The insertion of an IV needle elicited no reaction. She never cried. With a nurse holding her hands, she could stand and walk sideways on her toes, like a crab. She couldn't talk, didn't know how to nod yes or no. Once in a while she grunted.

A libertarian at QandO is especially uneasy about the incident:

I can't help but wonder how a libertarian regime would handle something like this. Could it have been prevented? Stopped earlier? I don't really know. But it bothers me that the statist, police power solution seems to be the only one.

If libertarianism is a viable political system at all, shouldn't it have some way of dealing with situations where people who are either too young or otherwise defenseless to care for themselves?
…
Unfortunately, all I really have are questions. I want to believe that there is a freedom oriented method for protecting the Danis of he world before they lose all that is human about them, or worse, their lives. But I don't know that would be.

A very robust conversation, including some exchanges between me (aided by others) and some quite rabid "you'd let them die in the streets" style of anti-libertarians is available in the comment thread.

I'll just excerpt one of my comments, a response to an anti-libertarian conservative:

Besides the pesky fact that you're confusing libertarians with anarchists (or, alternatively, refusing to acknowledge the fact that most libertarians are actually classical liberals), one "helps Dani" precisely by emphasizing that a humane society does not squander its limited public resources (i.e., the finite capacity of a government of flawed human beings) in an attempt to "solve" too many problems.

One "helps Dani" by not having government try to "help" everyone else — in everything in every way — and instead focusing only on those who truly need literal paternalistic care — the objectively, demonstrably incompetent in the original sense of the word: orphans, the truly disabled, etc.

How that constitutes being a "cruel, selfish, libertarian bastard" continues to escape me.

Discuss.

—

LATE ENTRY: Posted without comment —

Meet Jennifer Rosenberg. The Texas woman used her 12-year-old daughter as a designated driver so that she could be chauffeured to a Longview bar to celebrate her 35th birthday. Rosenberg was arrested Wednesday night after her child was pulled over by cops for a traffic violation (the girl told officers she had just dropped her mother off at a bar about two miles from their home). Longview Police Department officers responded to Leon's Bar and Grill, where they arrested Rosenberg on a child endangerment charge, according to a probable cause affidavit.

Any libertarian "parents' rights" unease about a child endangerment charge here?

The theocrats were aghast because they are increasingly turning to (uncredentialed) homeschooling to ensure that their children are in fact not educated — no evolution, no sex education, no "okay to be gay," etc.

The libertarians were aghast because the court actually invoked the famous pro-rights case, Pierce v. Society of Sisters, 268 U.S. 510 (1925), as a precedent against recognizing a "right to homeschool."

In any event, the court quickly agreed to rehear the case in light of the broad, wide and deep public outcry over their interpretation of precedent, statute and the California Constitution. And their revised decision this time surprised no one:

Early U.S. Supreme Court cases established that parents possess a liberty interest, protected by the due process clause, in directing the education of their children. [Citing Pierce and related precedent.]
…
While parents generally have a parental liberty interest, California also has recognized that the "welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect." The United States Supreme Court [has] recognized that "the power of a parent, even when linked to a free exercise claim, may be subject to limitation … if it appears that parental decisions will jeopardize the health or safety of the child."
…
As against the state, this parental duty and right is subject to limitation only "if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens." [Citations omitted.]

So this time the court got it correct, or at least mostly correct: There is indeed a right to homeschool, but not a right to use homeschooling as a pretext to keep one's children away from child welfare authorities who have a reasonable basis to suspect abuse or neglect.

(Recall that this particular case began as an abuse investigation; the parents withdrew their children from public school and "homeschooled" them only to thwart the child welfare authorities. The litigation commenced when one of the children herself sued to be enrolled in public school against her parents' wishes. And the case is now merely remanded back to the trial court, to decide how best to deal with these particular parents — who are clearly not competent to homeschool their children without supervision from child welfare authorities who can ensure that the children's rights are being safeguarded.)

So the situation in California has gone from "flat-out wrong" to "correct but incomplete." The right to homeschool has been re-established, but the question of restricting inadequate homeschooling, especially theocratic anti-education, remains unanswered.

—

Two additional hasty stitches:

1. How did the court get into this mess in the first place?

Our first task, interpreting the law of California, is made more difficult in this case by legislative inaction. As we will discuss at length below, home schooling was initially expressly permitted in California, when the compulsory education law was enacted in 1903. In 1929, however, home schooling was amended out of the law, and children who were not educated in public or private schools could be taught privately only by a credentialed tutor. Case law in 1953 and 1961 confirmed this interpretation, and specifically concluded that a home school could not be considered a private school. While the Legislature could have amended the statutes in response to these cases, to expressly provide that a home school could be a private school, it did not do so. [Emphasis in original.]

This is an example of the phenomenon I highlighted in this post on the Hart-Fuller debate, a/k/a "No vehicles in the park." The only reason the judges had such difficulty with this issue is because legislators, through their inaction and incompetence over the years, made the question intractable. If you make an obstacle course too challenging, don't be surprised when no one is able to navigate it. The original decision tried to apply reasonable analysis to unreasonable laws and came up with gobbledygook. The second time around they simply accepted the fact that the laws themselves were the gobbledygook. It would have been preferable if they had accepted that from the outset, but better late than never.

2. From the decision —

It is important to recognize that it is not for us to consider, as a matter of policy, whether home schooling should be permitted in California. That job is for the Legislature. It is not the duty of the courts to make the law; we endeavor to interpret it. (Cf. In re Marriage Cases (2008) 43 Cal.4th 757, 780.) [Emphasis in original.]

Nice to see the same-sex marriage ruling cited as precedent.

Nevertheless, some items crossed my aggregator recently that together illustrate the difficulty in trying to craft a position that is simultaneously "libertarian" and absolutist.

First: Libertarians would all no doubt agree that children should not be required to recite, or even stand during, the Pledge of Allegiance while in public school. That is an unambiguous right under well-settled law: West Virginia v. Barnette, 319 U.S. 624 (1943).

But exactly whose "right" are we talking about?

Here … the refusal of students to participate in the Pledge — unless their parents consent — hinders their parents' fundamental right to control their children's upbringing. The rights of students and the rights of parents — two different sets of persons whose opinions can often clash — are the subject of a legislative balance in the statute before us. The State, in restricting the student's freedom of speech, advances the protection of the constitutional rights of parents: an interest which the State may lawfully protect. … Should a parent request that his child not recite the Pledge — even where the child wishes to recite — the statute provides that the school must excuse the student.

Read that last sentence again: the "right to refuse to recite the Pledge" is not the student's at all, but only the parents'. If the parents say "recite," then the student must comply, and the school must coerce — the "right" is not hers at all. And even the reverse is true: If the parent says "do not recite," then the school must take affirmative steps to bar the student from reciting; she has no say in the matter whatsoever.

On the plus side, this case was a facial challenge to compulsory standing during the Pledge (even if not to recite it). The court left open, indeed emphasized, the possibility of future "as applied" challenges, and specifically mentioned that its reasoning was especially robust in the context of "elementary and middle school students" (i.e., but possibly not for older students who might be entitled to make their own decisions). Still, the question of where the right of the parent to control ends and the right of the child begins should not be so cavalierly treated as either obvious or absolute. Indeed, as a certain other group of pro-child libertarians would emphasize, one can easily and persuasively argue that the younger the child, the more urgent is the elevation of his rights over the "rights" of his parents.

Like I said: Thorny. Which is fine, as long as we acknowledge it as such.

The case is Frazier v. Winn, No. 06-14462 (11th Cir., July 23, 2008) (PDF – 14 pages).

—

So the "right to raise your child as you see fit" seems to trump your child's rights, at least in some circumstances. But what about the "right to make your child as you see fit"?

Using preimplantation genetic diagnosis (PGD), parents can now screen embryos for genetic traits such as deafness and Achondroplasia (dwarfism). Studies show that some parents intentionally choose embryos with disabilities because that genetic trait runs in the family. This recent and increasing trend raises the important legal question of whether children can sue their parents in tort for selecting disabling genetic traits.
…
[C]hildren should be able to successfully sue their parents in some instances. Children have a moral right to an open future and tort law should protect this moral right where parents' preimplantation genetic choices limit a child's ability to pursue a variety of different life paths.

Variations on this theme pepper TV dramas: I know of at least two programs concerning the issue of cochlear implants (i.e., do deaf parents have the "right to a deaf child"?) and one concerning whether to perform neonatal surgery for a child with ectrodactyly.

The idea that parents should not be allowed to arbitrarily "modify" their babies, at least in certain ways, is not new. Neither is the idea that, in some rare instances, a child should never have been born in the first place. But both those positions are anomalies — for now, at least. Generally speaking, "I would have been better off never having been born" is a losing argument in court.

Still, the notion that a child has a "right to an open future" that supersedes his parents' wishes is an enticing libertarian proposition, to me at least. I think it's a very good framework for taking on the great libertarian conundrum of "children's rights versus parents' rights." The parents' "right to raise their child as they see fit" must end where the child's "right to an open future" begins.

—

I never weighed in on the Yearning for Zion incident in Texas. Suffice it to say that mine was the minority view among libertarians. While the actions of law enforcement may have been sloppy and based on improper (and to some extent flat-out false) "evidence," I continue to believe that the underlying analytical framework the authorities invoked is valid: It is itself child abuse to raise a child in an environment where the celebration (if not the practice) of child abuse is the very purpose of establishing that enviornment in the first place. The one and only true raison d'être of the Fundamentalist LDS cult, one that they themselves openly and notoriously proclaim, is to celebrate the rape of underage girls. That fact and that fact alone is sufficient grounds in the civil context (indeed I would argue that it constitutes probable cause in the criminal context) to search and seize such compounds, without any need for additional evidence of individualized suspicion.

Even if the FLDS adults insist that they only "celebrate" child abuse and swear that they don't actually engage in it. Even if they in fact don't ever engage in it. The analysis doesn't change: The environment itself, the celebration of child abuse itself, is so toxic, so dangerous, that just to expose a child to it, even if no proximate abuse takes place, is itself per se abuse, and a per se violation of the child's rights.

This is, I submit, an entirely libertarian position (if not, however, the only entirely libertarian position): If it is a proper function of government to protect individual rights, then that includes protecting the rights of these children. Reasonable libertarians can disagree over what those rights are, and how best for the government to protect them, but not whether those rights exist. They do.

If you need a summary of my reasoning, then you can find proxies for it from law professor Marci Hamilton here and here.

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.

The Second District Court of Appeal ruled that California law requires parents to send their children to full-time public or private schools or have them taught by credentialed tutors at home.
…
"California courts have held that … parents do not have a constitutional right to homeschool their children," Justice H. Walter Croskey said in the 3-0 ruling issued on Feb. 28. "Parents have a legal duty to see to their children's schooling under the provisions of these laws." Parents can be criminally prosecuted for failing to comply, Croskey said.
…
The ruling was applauded by a director for the state's largest teachers union.

I have no doubt of that last sentence.

It is a fine line (or a massive chasm, depending on your point of view) between insisting, as I do, that there is no right to badly homeschool your child and this court's ruling that there is no right to homeschool whatsoever. Regardless, I do not think it is a line that can be crossed.

The authority to regulate homeschooling derives from the obligation of the government to protect the incompetent — in this case minor children. To homeschool poorly is simply a variation of child neglect — malnutrition of the mind, if you will. Indeed, this particular court case began not as a homeschooling charge but as a physical abuse complaint.

But child neglect, like any other offense against another person, should have to be proven on a case-by-case basis. To adopt a bright-line rule that any homeschooling is "bad" homeschooling is arbitrary, irrational — and likely an unconstitutional violation of due process. Even in the knowledge that some homeschooling will be bad homeschooling, the state should be required to demonstrate that a particular parent is failing to properly homeschool a particular child, just as it should be required to demonstrate that a particular parent is neglecting or abusing a particular child.*

(Indeed, the court addressed this question and preposterously dismissed it: "It is unreasonably difficult and expensive for a state to supervise parents who instruct children in their homes." Facts to support that outlandish, sweeping and conclusory assertion: none.)

The only three explanations for a bright-line rule criminalizing all non-credentialed homeschooling are: (a) intellectual laziness by legislators and judges; (b) budgetary stinginess by the government, or (c) pandering to teacher unions. But not "the best interests of the child." That is the one factor that ought to trump all else and demand a (rebuttable) presumption of propriety regarding homeschooling.

How sad that it does not.

The case is In re Rachel L., No. JD00773 (Ct.App.Cal., 28 February 2008) (PDF – 18 pages) More thoughts at Cato@Liberty South Puget Sound, QandO.

—

*Regarding this "particular parent failing to properly homeschool this particular child," the record should reflect that it was indeed a case of radical fundamentalist Christians trying to provide a typical (i.e., redacted, inadequate and incorrect) "Bible-based" pseudo-education of the kind I have warned about. Indeed, it was the children themselves who sued to be removed from their abusive (but "Christian") parents and thereby receive a bona fide education (with fewer beatings in the process).