Home-schoolers reel from California court blow

A ruling that parents in the state 'do not have a constitutional right' to home-school their children prompts anger, confusion. Schwarzenegger may ask legislature to intervene.

A court ruling that California parents "do not have a constitutional right" to home-school their children has touched off anger and bewilderment throughout America's home-schooling community and prompted a denunciation from Gov. Arnold Schwarzenegger.

For a movement that has gained greater accommodation in recent years, a state appellate court decision last month is a setback that, if not overturned on appeal, could force some 166,000 home-schooled students in California to enroll in conventional schools. It may also prod California and other states with vague or nonexistent laws on home schooling to be more specific about what is allowed and what is required of home-schoolers.

California's education statutes, for instance, do not mention "home schooling," but officials have allowed the practice for decades. The appellate court, however, found that the state's laws have not been changed to allow home schooling since a case back in 1953 erected a major roadblock to the practice.

Governor Schwarzenegger said Friday he would go to the legislature if the ruling is not overturned.

"I could see this [ruling] being a real strong impetus for home-schoolers in California to get the legislature to change their laws.... Or I could see it being perhaps the beginning of other states wanting to look more closely both at their laws and current enforcement," says Kimberly Yuracko, a professor at Northwestern University's Law School in Chicago.

The number of students nationwide who are home-schooled is not known because 10 states are so hands-off they require no reporting at all, nor do parents always comply with reporting requirements. Estimates range from 1.1 million to 2.5 million home-schooled students, and the numbers are rising.

About half the states require more than simple notification from parents or guardians, such as testing, curriculum approval, or home visits. But such rules are dwindling – either explicitly or by lax enforcement, say experts. Home-school advocates worry the California case could bring more regulation or enforcement, or both.

"The overwhelming trend [among states] has been, home schooling works, OK, we'll release the reins a little bit," says Darren Jones, an attorney with the Home School Legal Defense Association (HSLDA). "California is a bellwether. Other states might look at this [case] and say this is something we might want to consider."

The case grew out of a home-schooled child's complaint of physical and emotional mistreatment by a parent. A lower court refused to remove the child to a school outside the home, arguing that parents had a right to home-school. The three appellate judges rejected this reasoning unanimously.

California law stipulates two main exemptions to compulsory public school: enrollment in a full-time private school or instruction from a credentialed tutor. Some home-schoolers enroll their children in independent study programs at private or public charter schools that allow students to work mostly from home. Officials have also allowed parents to declare their home a private school, a process requiring once-a-year filing of a short form.

In this case, the parents had enrolled their children in a private school under an arrangement that kept the kids at home except to take year-end tests. School officials said they visited the home about four times a year.

Writing for the appellate court, Justice H. Walter Croskey derided this arrangement as a "ruse" and also rejected the notion of home private schools by citing a 1953 California case.

"That case is older than dirt," says J. Michael Smith, head of the HSLDA. Subsequent California laws have tacitly acknowledged home private schools, as do 11 other states – three of which have fended off legal challenges on the issue, he says.

The bottom line for him is that California has no laws specifically mentioning home schooling and has in practice treated it as a form of private schooling.

"If you are not prohibited from doing something and you can fit it within a statute, that makes you a legal operator. We've operated this way for 20 some odd years," says Mr. Smith.

Many lawmakers – and home-schooling advocates – would prefer to keep home schooling out of the education code.

"If this goes to the [state] supreme court and it upholds it, this opens up this big Pandora's box. The state is going to have to define family rights, and to define to what extent [lawmakers] have to regulate," says Luis Huerta, a professor at the National Center for the Study of Privatization in Education at Columbia University in New York.

The prospect of Sacramento sorting out family rights won't warm many homeschoolers' hearts.

"Many of those people believe – usually based on a philosophical worldview, and often Christian – that the state has no authority over their children's education and upbringing," says Brian Ray, president of the National Home Education Research Institute, a nonprofit group in Oregon.

Already, California home-schoolers are suggesting resistance would be widespread to any sort of enforcement by local school districts.

"We'd have to open Alcatraz [state prision] to hold all of us," says Loren Mavromati, a homeschooler and spokesperson for the California Homeschool Network. "Even if we all rolled over and complied and enrolled in public schools – how? They are laying off teachers during this budget crisis left and right."

As the movement has grown, its autonomy has become worrisome to some. Concerns center mostly on the need for state accountability in ensuring that children are educated to a certain standard. But, as in the California case, the potential for child abuse is also becoming an issue.

In a January report on a mother's murder of her four children in the District of Columbia, The New York Times framed the case around the isolation of homeschooled kids and the limited opportunity for checking on their well-being. Cases in New Jersey and North Carolina have produced similar coverage.

"If I were a state legislator, I would be worried about having legislation overseeing home schooling that is not being enforced at all, and the potential for bad child-abuse cases happening and the state being sued for, in part, not taking care of its obligations," says Ms. Yuracko.

Lawmakers in California and elsewhere are already tightening oversight of charter school arrangements with home-schoolers. In some states, charters have sprung up to service only home-schoolers, offering parents a free computer, DSL hookup, or textbooks. The schools can then collect public per-pupil funding while paying little for instruction or oversight.

California has enacted reforms to limit the per-pupil funding to up to 60 percent for some nonclassroom-based setups. The reforms have stopped the profiteering, says a spokesman for the California Charter Schools Association.

Not everyone agrees. "Even at 60 percent, it's still a cash cow for districts. You literally get a warehouse, put five or 10 teachers in there, and enroll 1,000 students. Do the math," says Dr. Huerta.