{"id":187,"date":"2012-09-27T12:52:57","date_gmt":"2012-09-27T12:52:57","guid":{"rendered":"http:\/\/icher.org\/blog\/?p=187"},"modified":"2012-09-27T12:52:57","modified_gmt":"2012-09-27T12:52:57","slug":"constitutionality-of-home-education-california-law-and-legal-precedent","status":"publish","type":"post","link":"http:\/\/icher.org\/blog\/?p=187","title":{"rendered":"CONSTITUTIONALITY OF HOME EDUCATION: California Law and Legal Precedent"},"content":{"rendered":"

Record: \u00a0<\/strong>Chad Olsen, \u201cConstitutionality of Home Education: How the Supreme Court and American History Endorse Parental Choice\u201d in Brigham Young University Education and Law Journal<\/em> 2 (2009): 399-423\u00a0 <\/strong><\/p>\n

Summary:\u00a0 <\/strong>Olsen<\/a>, an attorney in the Las Vegas area and former law student at Brigham Young University, here provides a fascinatingly detailed analysis of the famous In re Rachel L. <\/em><\/a>case, the 2008 California Court of Appeals decision that unleashed a national outcry by finding that California law did not permit homeschooling.\u00a0\u00a0\u00a0 Olsen begins with a clear summary of the Rachel<\/em> decision, the backlash it unleashed, and its rehearing, which determined that in fact California law did allow for homeschooling as a variant of the private school exemption to California law.\u00a0 Though the particular parents involved in the Rachel <\/em>case were ultimately deemed unfit to homeschool their children due to abuse, the freedom of other Californians to do so was upheld.<\/p>\n

In part two of his paper Olsen abruptly shifts focus to an account of Supreme Court decisions that he thinks have established a \u201cright to home education\u201d especially for parents who do so with a religious motive.\u00a0 Olsen claims that \u201cthe Supreme Court has held that when parents choose to home school their children because of a religious belief, the religious belief fortifies the parents\u2019 right to direct their children\u2019s education.\u201d (pp. 411-412)<\/p>\n

For evidence of this very questionable claim, Olsen begins with Meyer v. Nebraska<\/em> (1923) and Pierce v. Society of Sisters<\/em> (1925), historic decisions that established parents\u2019 rights to direct their children\u2019s education (specifically protecting parents from laws requiring English-only language instruction (Meyer<\/em>) and forbidding private school attendance (Pierce<\/em>)).\u00a0 He then moves to Wisconsin v. Yoder<\/em> (1972).\u00a0 Olsen interprets Yoder<\/em> to have established a right to homeschool for religious reasons.\u00a0 The actual ruling was far more narrow.\u00a0 The Court was very explicit about the limited generalizability of its ruling in the Yoder<\/em> case.\u00a0 That case established that Amish parents had a constitutional right to disobey Wisconsin\u2019s compulsory attendance statute because of a longstanding religious tradition that viewed schooling beyond the eighth grade to be inimical to Amish religion and communal norms.\u00a0 The Court doubted that there were very many other religious groups that would qualify for such exceptions in the United States.\u00a0 But Olsen turns what was a very limited ruling (that doesn\u2019t even mention \u201chomeschooling\u201d) into an expansive right.<\/p>\n

After this survey of Supreme Court decisions, Olsen\u2019s paper shifts emphasis yet again, this time becoming a survey of the history of home education.\u00a0 Olsen describes how the home was central to early American education, being eclipsed by the school only when Protestant Americans looked for a way to assimilate immigrants into their version of what America should be.\u00a0 But by the late 20th century this \u201cAmerican synthesis\u201d ended, and schooling narrowed its focus from inculcating broad civic and moral norms to imparting mere academic training.\u00a0 Homeschooling has emerged as a counterweight against the public school\u2019s reduction of all learning to the cognitive and as a protest against public education\u2019s increasingly permissive moral outlook.<\/p>\n

Olsen argues for homeschooling because our society is now beyond the need to impose a particular \u201cAmerican synthesis\u201d on every child.\u00a0 At the same time he acknowledges that homeschoolers are often the very people who look back with nostalgia for the good old days of the American synthesis.\u00a0 His solution to this ironic situation is to try to shift public perception of homeschooling.\u00a0 He wants us to think of it not as a critique of or judgment upon public education but as another form of<\/em> public education.\u00a0 Homeschooling joins with public schooling in the broad civic goal of educating all of America\u2019s children.\u00a0 And though it isn\u2019t quite clear from his text, I think he\u2019s saying that a truly post \u201cAmerican synthesis\u201d public education system would be tolerant not only of traditionally marginal voices (such as those of gays, the example he uses) but also of people who reject gay rights as well.\u00a0 The best way for this tolerance to be institutionalized, he seems to be saying, is not to have people who disagree go to school together but to allow for the sort of ideological balkanization homeschooling fosters.<\/p>\n

Appraisal:\u00a0 <\/strong>The best part of this paper was the beginning where Olsen provided great coverage of the Rachel<\/em> case.\u00a0 Even here though I think he might have given us more in terms of legal analysis.\u00a0 California courts had in fact historically ruled against the legality of home schooling, but the California Department of Education had long allowed parents to do it if they claimed exemption as private schools.\u00a0 The Rachel <\/em>decision was, I believe, actually an accurate interpretation of California judicial precedent.\u00a0 There still is no law that specifically gives Californians the right to homeschool.\u00a0 Right now, though the practice is pervasive, if you look at the history of the case law prior to Rachel<\/em>, either homeschooling is not legal or the current compulsory education statute is \u201cunconstitutionally vague\u201d (People v. Darrah and Black<\/em>, 1986).<\/p>\n

My final point is that I am really confused by Olsen\u2019s Supreme Court argument.\u00a0 His discussion and footnotes here suggest no familiarity with the weight of scholarly interpretation on these cases (see, for example Shawn Peters\u2019 excellent book The Yoder Case: Religious Freedom, Education, and Parental Rights<\/a>\"\"<\/em>).\u00a0 Perhaps we are to read this article like a court-room defense, where the goal is not to present the unvarnished truth but to try to make the best possible case for one\u2019s client.\u00a0 That\u2019s the only way I can understand how a student at the J.D. level could read the Supreme Court cases this way.<\/p>\n

Milton Gaither, Messiah College<\/p>\n

Disclaimer<\/strong>:\u00a0 The views expressed in reviews are not the official views of ICHER or of its members.\u00a0 For more information about ICHER\u2019s Reviews, please see the \u00ab\u00a0About these Reviews \u00bb Section.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Record: \u00a0Chad Olsen, \u201cConstitutionality of Home Education: How the Supreme Court and American History Endorse Parental Choice\u201d in Brigham Young University Education and Law Journal 2 (2009): 399-423\u00a0 Summary:\u00a0 Olsen, an attorney in the Las Vegas area and former law … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":"","_links_to":"","_links_to_target":""},"categories":[11],"tags":[107,106,120,122,121,124,123],"class_list":["post-187","post","type-post","status-publish","format-standard","hentry","category-legal","tag-brigham-young-univeristy-education-and-law-journal","tag-chad-olsen","tag-in-re-rachel-l","tag-meyer-v-nebraska","tag-pierce-v-society-of-sisters","tag-shawn-peters","tag-wisconsin-v-yoder"],"_links":{"self":[{"href":"http:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts\/187","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=187"}],"version-history":[{"count":5,"href":"http:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts\/187\/revisions"}],"predecessor-version":[{"id":209,"href":"http:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts\/187\/revisions\/209"}],"wp:attachment":[{"href":"http:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=187"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=187"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=187"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}