Record: Paul A. Alarcón, “Recognizing and Regulating Home Schooling in California: Balancing Parental and State Interests in Education” in Chapman Law Review, 13 (2010): 391-416.
Summary: Alarcón here presents a summary of the recent In re Rachel L. and Jonathan L. decisions in California and an argument that the California legislature should pass new legislation that explicitly gives parents a right to homeschool but that also requires parents to submit annual notification of intent to homeschool and annual standardized test scores.
Alarcón begins with a history of the decisions. Readers will likely recall the uproar that followed a California court of appeals’ finding that homeschooling was not legal according to the California constitution. The judge’s decision was literally correct in that the only relevant court cases, People v. Turner in 1953 and in re Shinn (1961) had rejected the argument that homeschooling counts as a plausible means of private schooling.
But after the nationwide outcry Judge Croskey depublished the ruling and reheard the case. The second time he found homeschooling to be legitimate, not because any legal ruling had superceded Turner and Shinn but because the California legislature had for a long time “acted as though home schooling is, in fact, permitted in California.”
This legislative and legal limbo did not sit well with Judge Croskey, nor does it sit well with Alarcón. He proposes that California needs a new law to clarify its approach to homeschooling. But what should be in it? How should California properly balance Government’s interest in ensuring that all California children receive an education with parental interests in being free of government oversight of how they educate their children? As Alarcón puts it,
what limitations, if any, should be adopted, which guarantee that each and every home schooled child receives an adequate education, but which do not unconstitutionally impose upon the parental interest? (p. 395)
Alarcón begins his answer with a brief overview of the history of compulsory education and the rise of homeschooling. He then explains how this history has led to a conflict between State and parent over who has authority over children’s educations. Alarcón explains how the 14th amendment’s due process clause has been interpreted by the Supreme Court to include a “right to privacy” that gives parents a “fundamental right to make decisions concerning the care, custody, and control of” their children. (p. 400)
At the same time, however, the Court has also found that states have a compelling interest in ensuring that their citizens are educated for civic and economic participation. The state has the right to make sure that its citizens acquire “a basic competency in those core subjects necessary for independent functioning in the democratic society of America.” (p. 404)
Alarcón next lays out his proposal. He wants California to pass a homeschooling law like most other states have done. This will end the possibility of future judicial decisions like In re Rachel L. and put to rest fears that homeschooling might be forbidden in California. It will also simplify and streamline the patchwork of legislation currently besetting California on this topic.
But what should the new law say? Alarcón looks at what other states have and determines that two requirements make sense. First, requiring homeschooling parents to file an annual affidavit of intent would distinguish homeschooling from truancy and is already required under the current “private school” exemption. Second, annual testing in core subjects would ensure that the state’s interest in obtaining an educated citizenry is being met. He also considers and rejects parental educational requirements and required home visits.
Appraisal: This article is just one in a whole slew of recent legal opinion pieces that cover the same basic ground. Many homeschooling families will think Alacorn’s proposal goes to far, and some critics will think it does not go far enough. In my own view a single test around age 11 or 12 would suffice to ensure that the children in question can read and do basic math. I would be more open to annual health check-ups such as is required of public and private schooled children. This would I think be a better way to catch cases of abuse or neglect and to deal with the potential problem of significant numbers of homeschooling families endangering the public health by refusing to vaccinate their children.
Milton Gaither, Messiah College, author of Homeschool: An American History
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