'Parents have a protected liberty interest to direct the education of their children'
By Bob Unruh
An amicus brief has been filed in a California court case that at one point threatened homeschooling by hundreds of thousands of people statewide, and it argues the U.S. and California Constitutions both recognize the fundamental rights of parents to direct the education of their children.
WND broke the story at the end of February when a ruling concluded parents in the state held neither a statutory right nor a constitutional right to provide homeschooling to their own children.
That ruling from the California Court of Appeal for the 2nd Appellate District was vacated when the court granted a petition to rehear the case, and the new filing is from the Pacific Justice Institute on behalf of Sunland Christian Academy, the private school that offers the independent program in which the family's children were enrolled.
The father in the case is represented separately by the United States Justice Foundation and the Alliance Defense Fund, which have been working on the case's main arguments to the court.
"The Fifth, Ninth and Fourteenth Amendments to the United States Constitution, as well as Article 1, [paragraphs] 1 and 7, of the California Constitution, protect the fundamental due process and privacy liberties of Californians," according to the Pacific Justice brief which cited court cases addressing the right to marry, establish a home and bring up children, the right for parents to educate children as they choose, the "private realm of family life," and others.
"The areas represent 'a realm of personal liberty' which the government may not enter," said the filing.
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"Our legal team has put in many long hours to ensure that the voice of homeschooling families is heard clearly and persuasively in the Court of Appeal," said Brad Dacus, president of PJI. "It is absolutely essential that our judicial system continues to recognize parents' age-old rights to determine how best to raise and educate their own children."
The original opinion, written by Appeals Court Judge H. Walt Croskey, said: "We find no reason to strike down the Legislature's evaluation of what constitutes an adequate education scheme sufficient to promote the 'general diffusion of knowledge and intelligence. … We agree … 'the educational program of the State of California was designed to promote the general welfare of all the people and was not designed to accommodate the personal ideas of any individual in the field of education.'"
The appeals ruling said California law requires "persons between the ages of six and 18" to be in school, "the public full-time day school," with exemptions being allowed for those in a "private full-time day school" or those "instructed by a tutor who holds a valid state teaching credential for the grade being taught."
Homeschool advocates immediately expressed concern the original ruling would leave parents who educate their children at home liable criminally as well as open to civil charges for child neglect that could create the potential for fines, court-ordered parenting classes or even the loss of custody under extreme circumstances.
But the appeals court vacated the opinion, ordering a new hearing. Sunland had asked for permission to participate formally in the case, since the children involved were registered in its program, but the court declined. It did grant Sunland, which is represented by Pacific Justice, permission to file an amicus brief on the issues.
The Pacific Justice brief notes the state already recognizes private schools including those with independent study programs, and Sunland has been approved by the formal regulatory procedures in the state.
"Parents have a constitutionally protected liberty interest to direct the upbringing and education of their children," the brief said. "Thus to avoid finding the compulsory education laws unconstitutional, the courts should seek to interpret the statutory scheme in a manner that does not intrude upon this fundamental right."
The argument continued, "The Supreme Court of the United States has long held that the interest of parents to direct and manage the education and upbringing of their children is a fundamental right protected by the due process clauses of the Fifth and Fourteenth Amendments. ... California courts have also invoked the principles ... that personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions."
The appeals court also, in its order for a rehearing, expanded the case far beyond the original family situation involved to include an evaluation of whether the state laws regarding homeschooling allow that activity, and whether the state is in conflict with any U.S. Constitution provisions regrading homeschooling.
Additionally, the court asked the state's superintendent of public instruction, the California State Board of Education, the Los Angeles school district, the California Teachers Association and the Los Angeles teachers' union for their opinions on homeschooling.
Other homeschooling interests were told they could file briefs, and the court said they would be considered.
Oral arguments are scheduled in June.
The original opinion arose from a dependency case brought in juvenile court. In the process, attorneys assigned by the court to the family's two younger children sought a court order for them to be enrolled in a public or qualifying private school.
The district court denied the request citing parental rights, but the appellate court overturned the decision and granted the attorneys' request. The appeals court concluded the parents held neither a statutory right nor a constitutional right to provide homeschooling to their own children in the opinion that later was vacated.
"Parents have a fundamental right to make educational choices for their children," said Gary McCaleb, a senior counsel for the ADF. "Because this ruling impacts all of Californians, we believe the case deserves a second look."
"Another look at this case will help ensure that the fundamental rights of parents are fully protected," Kreep added.
Also involved in the case on behalf of the parents is the Home School Legal Defense Association, which said it would seek permission to file amicus briefs on the issues.
A long list of homeschool groups working in the state previously released a statement on the issue that could affect 200,000 students. Joining were the California Homeschool Network, Christian Home Educators Association of California, Private and Home Educators of California and HomeSchool Association of California.
"We are united in the goal of protecting the right of parents to teach their children private at home without additional governmental interference," the statement said. "We believe that children deserve to learn in the environment that best meets their individual needs. We support the right of parents to direct their children's education including, if they desire, teaching their children privately at home apart from any public school program and without a teaching credential."
White House spokeswoman Dana Perino said the president has supported homeschoolers in the past.
Among the other responses have been:
Assemblyman Joel Anderson has proposed a resolution in the California Legislature that calls for the ruling to be overturned.
Gov. Schwarzenegger said, "if the courts don't protect parents' rights, then, as elected officials, we will."
California Supt. of Public Instruction Jack O'Connell said, "Parents still have the right to homeschool in this state."
A separate petition appeals to Schwarzenegger and the Legislature is being run by the Pacific Justice Institute, which is working with the website PetitionsToday.org.
And yet another petition also is under way, at the ReverseTheRuling.com website. That organization offers information for homeschoolers who want to follow the California case, because of that state's influence throughout the nation. It was assembled by the organization Learning By Grace, an outreach dedicated to providing parents with innovative online Christian homeschool materials.
Even students are getting their say.
"The court cannot 'make' something illegal – that's the legislature's job. Sheesh!" wrote Jon Chi Lou, of Heritage Christian High School.
The HSLDA also is suggesting an amendment to the U.S. Constitution specifically recognizing parental rights. That effort already is under way under the banner of Parental Rights
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