Due process and home schooling

It will take some time to appreciate the full significance of this state court ruling in California (hat tip: Protein Wisdom). The Second District of the California Court of Appeal has held that parents in California have no constitutional right to school their children at home. No substantive due process protection, no free exercise protection, no equal protection, nothing.

Before we examine the merits of the court's reasoning, it is instructive to perform a little compare and constrast. Note that the United States Supreme Court has held that the due process clause of the Fourteenth Amendment secures to a woman the right to kill her child, before birth in most circumstances and before viability always. However, that same woman has no constitutional right to educate that same child after the age of five during school hours. Abort the child; that's fine. But if you let him live to five years of age, the State will take over from there.

I am not advocating for expansion of the reach of the due process clause. I am simply giving the lie to the canard that both liberals and conservatives engage in judicial activism. If, as Professor Kmiec mistakenly asserted this week, both sides were treating the courts as political instruments, we should expect to see both liberal and conservative policy preferences incorporated into constitutional precedent. We do not. We see only liberal preferences. Conservatives are left to do the hard work of passing legislation, when liberals have not foreclosed even that avenue by commandeering the courts to do their bidding.

To the decision itself. First, this appears to be a classic case of a court making bad law in response to bad facts. The trial court found evidence that the children had suffered physical and emotional abuse at home and that they were receiving "lousy" and "meager" instruction in their home school. One certainly feels for such children. And no one would advocate for a constitutional right to abuse one's child. However, that the facts in this case are so incendiary suggests that the court should have avoided issuing such sweeping dicta.

Doctrinally, the decision rests upon old precedent. The court, an intermediate court of appeal, purports simply to follow a 1953 decision of the California Supreme Court that it is not unconstitutional to forbid unaccredited parents from educating their children at home and a 1968 decision of the United States Supreme Court to similar effect. However, both of those decisionss predate the Supreme Court's 1972 decision in Wisconsin v. Yoder. In Yoder, the Court held that Amish parents have a right protected by the free exercise clause of the First Amendment to educate their children at home and to avoid the application of compulsory education laws.

The California Court of Appeal does not mention Yoder in its discussion of the constitutionality and interpretation of California's compulsory education statute. This is particularly striking because the court notes in a footnote that the parents in this case "have asserted that they home school because of their religious beliefs." Only at the end of the decision does the court tack on a cursory discussion of Yoder and its application to this case. It is true that the Yoder doctrine distinguishes between true religious conviction and personal preferences disguised as religious beliefs. However, it is not true that parents have no First Amendment right to resist the imposition on their children of secular values that they reject, even when a majority approves those values. This suggestion of the California court is unfortunate and unhelpful dicta.

The parents appear to have received inadequate legal counsel. Their affidavit, which was "conclusional" in the court's curious parlance, did not set out with specificity to which particular aspects of the public school curriculum they objected and on what grounds. Perhaps the matter will be explored on remand. When the case re-appears on appeal, the court would do well to focus its reasoning.