The faulty reasoning of the California home school case

The recent California appellate court decision that threatens home schooling has engendered quite a bit of discussion which will only increase over the coming weeks. Home schoolers are different from other interest groups: When their interests are threatened, practically every one of their members makes a phone call, not just 10 or 20 percent. This is what makes them such a potent political force in relation to their actual numbers.

In my previous post, Jah objected to my comment about this decision constituting judicial activism, and I'll have to admit he's partly right. I shot from the hip based on preliminary reports. Shame on me.

At the same time, while the decision isn't necessarily an activist decision, it's rationale certainly stretches the bounds of judicial restraint . What the court said was that the state has three categories of legitimate education: public school, private school, or a credentialed tutor. The court argued that home schools don't fall within any of these three categories, and that therefore they are not to be accounted as legitimate schools. But the fact is that in many states home schools are commonly categorized as private schools. It is this way in my home state of Kentucky for example.

One might ask the court precisely why a home school is not a private school? Is there some definition is California law that defines private schooling in such a way that home schools must be excluded? No, there is not, which is why the court takes refuge in the reasoning of Turner v. People of the State of California (1953):

Additionally, the Turner court rejected, and noted that courts in other states had
also rejected, the notion that parents instructing their children at home come within the private full-time day school exemption in then-section 16624 (now section 48222). The court stated that a simple reading of the statutes governing private schools and home instruction by private tutors shows the Legislature intended to distinguish the two, for if a private school includes a parent or private tutor instructing a child at home, there would be no purpose in writing separate legislation for private instruction at home.

But there is no reason (or at least no reason offered) for saying that this is what the legislature meant. Did the legislature really mean to exclude home schools as we know them today from the definition of private schools? Did it have home schools in mind when writing legislation about tutoring situations? The Turner case was decided in 1953 for crying out loud, and the education code it references was written some years before that. There were virtually no home schools in 1953, not at least as we know them now. Today there are home school organizations, home school cooperatives, and a burgeoning industry in self-instructive course curricula and online education technology that was not even dreamed of in 1953. The parents in Turner were raising their kids--and educating them--in a completely different world. So how could the court say that this is what the legislature had in mind?

In fact, forget the legislature, how could the court in the present case say that this is what the judges in the Turner case had in mind?

In fact, what the court does is to say that home schools are tutoring situations in which the tutor is uncertified, in which it does not meet the criteria for a school. But it has no better reason for doing that than to rule that it is a private school in which the teacher is uncertified, in which case it would comply with the criteria, since private schools are not required to have certified teachers. In other words, the court has two categories under which it could consider a home school as qualifying, one in which it wouldn't comply, and another in which it would. But it gives no valid reason why it considers it under the former and not the latter.

How convenient.

This has, of course, pleased all the wrong people:

"We're happy," said Lloyd Porter, who is on the California Teachers Association board of directors. "We always think students should be taught by credentialed teachers, no matter what the setting."

Right. And we know how the teachers unions have improved education in this country, don't we? And they've done it using "certified" teachers.