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The home-schooling issue needs to be taken out of the courts; the Legislature should decide.

June 28, 2008

The legal arguments over home schooling in California have gotten so mired in pseudo-issues on both sides, they have obscured the home truths of the matter. Now that an appellate court has heard a third round of debate, perhaps the children of California will get the ruling they need.

The case that started it all was fairly simple: Parents suspected of child abuse, who had been home schooling, were taken to court in an attempt to force them to enroll their children in public schools for better monitoring by outsiders. The parents won the first round.

Despite the findings of the trial judge, though, parents have no absolute constitutional right to educate their children instead of sending them to school. Nor was that the issue the judge was called on to decide. There is no constitutional right to child abuse, either; if these children were at risk, all the judge needed to do was determine the appropriate steps to protect them. And if their home education was as meager as the judge said, they could have been ordered into a better school setting; compulsory education is still the law.

The 2nd District Court of Appeal, overruling the judge, made its own grandiose error. Instead of simply deciding whether there is a constitutional right to home school, the court said the question before it was "whether parents can legally home school." It then rendered a rigid interpretation of the state Education Code that forbids parents without teaching credentials to educate their children. The ruling overturned decades of administrative flexibility that has usually allowed California's home schools to operate as private schools.

As a practical matter, most home schoolers do a fine job, sometimes an extraordinary job, of teaching their children. But it is also true that neglectful and abusive families occasionally use the isolation of home schooling to hide their actions, and the state must be empowered to intervene in these situations. Failure to educate a child is in itself a form of neglect.

The appellate court reconsidered on Monday. It should send the case back to the trial court for a narrower ruling that allows home schools while protecting children. But that's not enough to free family education from the threats that pop up every few years. (Six years ago, the state Education Department, which now supports home schoolers, sent a memo warning such parents that they were "outside the law.")

It's up to the Legislature to modify the Education Code so that it formally recognizes home schools as a valid educational path.

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