Fate of homeschooling in court's hands

The fate of homeschooling, the education choice for hundreds of thousands in the state, now is in the hands of the justices on the bench of the California Court of Appeal, 2nd District, Division 3, according to an announcement from the Home School Legal Defense Association.

The organization said today that all of the filings of the legal briefs in the case that has been labeled "In re Rachel L." have been completed.

"The Court of Appeal, which made the fateful decision on Feb. 28, 2008, to declare all homeschooling illegal unless the parent is a certified teacher, will now begin the process of considering the arguments. The current schedule anticipates oral arguments to begin this June," the HSLDA told supporters in an e-mail alert.

"HSLDA has been at the forefront of the process to defend the right to homeschool in California and across the country. In this case, we were able to successfully help Gary Kreep of the U.S. Justice Foundation, who represents the father at the center of this case, Mr. L., to prepare the arguments to grant the petition for re-hearing.

"When the Court of Appeal granted the petition for rehearing, the original opinion was vacated and no longer has any legal effect," HSLDA said.

In granting the petition for rehearing, the appeals court judges invited a number of organizations and interests to file amicus briefs, expressing their opinion on the issues at hand including the constitutionality of homeschooling in California. Among those invited were the state education department and teachers' union, as well as the state.

Gov. Arnold Schwarzenegger

In the brief filed recently on behalf of Gov. Arnold Schwarzenegger, Attorney General Edmund G. Brown Jr. argued that there's no need to dig into state constitutional issues regarding homeschooling since state laws already provide for that choice for parents.

"Here, this court need not reach any constitutional issues because this petition can be decided entirely on statutory grounds," the brief said. "The Education Code provides a broad statutory basis for homeschooling in California, setting forth three different avenues through which parents may legally homeschool their children."

The brief said the trial court in the case at hand "addressed only the constitutional issues, it never considered the preliminary question of whether the parents had met the statutory requirements for homeschooling under the Education Act."

WND broke the story in February when the original decision was released, and has reported on the various briefs as they have been filed.

An earlier amicus brief was filed by
the Pacific Justice Institute on behalf of Sunland Christian Academy, the
private school that offered the independent program in which the family's children were enrolled.

The father in the case is represented separately by the United States Justice Foundation and the Alliance Defense Fund, which have been working on the case's main arguments to the court.

But since the case originated with a juvenile court proceeding, some of the arguments and briefs have remained confidential, because of the standard for handling juvenile proceedings. Other briefs have been released publicly.

"In the latest round of filings, we have also been able to provide substantial assistance to the Alliance Defense Fund, which is partnering with the U.S. Justice Foundation in order to make the strongest argument possible to preserve homeschool freedom in California," the HSLDA said.

"HSLDA has also filed a friend-of-the-court brief in conjunction with Focus on the Family and Family Protection Ministries to show the benefits of a home education. These arguments draw on the extensive development of homeschooling and the successful track record of parents educating their children at home," the organization said.

"While we do not know what the court will decide, you can be confident that hundreds of hours were spent by many different organizations to defend your right to homeschool," the support group said in a statement signed by its president, J. Michael Smith.

The original opinion, later dropped, was written by Appeals Court Judge H. Walt Croskey and said: "We find no reason to strike down the
Legislature's evaluation of what constitutes an adequate education scheme sufficient to promote the 'general diffusion of
knowledge and intelligence. … We agree … 'the educational program of the State of California was designed to
promote the general welfare of all the people and was not designed to accommodate the personal ideas of any individual in the
field of education.'"

Homeschool advocates immediately expressed concern the original ruling would leave parents who educate their children
at home liable criminally as well as open to civil charges for child neglect that could create the potential for fines, court-ordered counseling or even loss of custody.

The White House said President Bush has been a longtime supporter of homeschooling, and an amicus brief – this one on behalf of members of Congress – was filed by Liberty Counsel.

The brief notes that as early as 1925, the U.S. Supreme Court recognized the rights of parents to direct the education of their children.

"The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only," the high court said.

The original California opinion arose from a dependency case brought in juvenile court. In the process, attorneys assigned by the
court to the family's two younger children sought a court order for them to be enrolled in a public or qualifying private
school.

The district court denied the request citing parental rights, but the appellate court overturned the decision and granted the
attorneys' request. The appeals court concluded the parents held neither a statutory right nor a constitutional
right to provide homeschooling to their own children.

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