Court Takes Up Home Schooling Again

Gov. Arnold Schwarzenegger called the ruling “outrageous.” Conservative activist James Dobson termed it “an all-out assault on the family.” And even he-man actor Chuck Norris compared it to decisions made in Nazi Germany or the Stalinist-era Soviet Union.

What has everyone’s dander up? A Feb. 28 ruling by Los Angeles’ Second District Court of Appeal that outlawed home schooling by parents who don’t have teaching credentials.

All the caterwauling must have had some effect because the appeal court took the extremely unusual step earlier this week of granting a rehearing. Not just a revisiting of some minor facts, mind you, but a full hearing in June.

“It’s rare,” said Paul Fogel, a partner in Reed Smith’s San Francisco office and a former president of the California Academy of Appellate Lawyers. “But it’s not rare when there is a hue and cry like there has been on this decision.”

In the February ruling — In re Rachel L., 08 C.D.O.S. 2453 — Justice H. Walter Croskey held that “parents do not have a constitutional right to home school their children.” He based his decision partly on state statutes that require full-time public school education for children ages six to 18 unless they attend a private school or are being tutored by someone with valid teaching credentials.

Justices Joan Klein and Patti Kitching concurred.

The ruling went largely unnoticed for about a week, but once reported by major newspapers unleashed a torrent of anger by mostly fundamentalist families and conservative activists.

“This one made the earth shake a little bit,” Fogel said today.

Santa Clara University School of Law Professor Gerald Uelmen, who follows appellate issues, agreed with Fogel that the court’s rehearing decision was unusual. But he said it’s understandable under the circumstances.

“It’s obvious this ruling will affect just a huge number of people who may not have been aware this question was being decided by the court and didn’t have an opportunity to weigh in with amicus briefs,” he said. “Maybe the court wanted to accommodate some of the groups that did want to weigh in.”

Fogel didn’t believe the appeal court caved in to public pressure.

“Courts don’t usually do that,” he said. “Maybe they want to make sure their reasoning was correct. Maybe they want to make sure every ‘I’ is dotted and every ‘T’ is crossed. Maybe there were arguments in the petition for rehearing that caused the court to rethink,” he said. “Or maybe … they just want to tweak a little language here and there.”

Whatever the reason, home-schooling parents and their supporters better not get their hopes up. Justices’ reasons for ruling the way they do are normally well-thought-out before a decision is handed down, and they almost never make a 180-degree turnaround.

Even after a full rehearing, opponents will likely see the same result when the court reissues its decision. It’s then on to the California Supreme Court.

—  Mike McKee