Posted by: chuckbumgardner | March 7, 2008

Homeschooling in California: Unconstitutional?

In a preliminary decision, a state appellate court in California has ruled that parents who lack proper teaching credentials cannot legally homeschool their children.  The court made this ruling on their understanding that “California courts have held that under provisions in the Education Code, parents do not have a constitutional right to home school their children.” The logic of the court decision seems to run this way:
1) The California consitution provides that

“A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.”

2) Based on this language, California has over time enacted compulsory education laws, requiring all children between 6 and 18 to attend public school full-time.

3) Exceptions to attending public school are made for minors who attend a private full-time day school, and for minors who are instructed by a tutor who holds a valid state teaching credential for the grade being taught.

4) A California court has previously ruled that such a compulsory education law does not deprive parents of the right to determine how and where their children are educated because it does not mandate public school education; parents are granted the option of private schooling or private tutoring.

5) Therefore, “Because parents have a legal duty to see to their children’s schooling within the provisions of these laws, parents who fail to do so may be subject to a criminal complaint against them, found guilty of an infraction, and subject to imposition of fines or an order to complete a parent education and counseling program. Additionally, the parents are subject to being ordered to enroll their children in an appropriate school or education program and provide proof of enrollment to the court, and willful failure to comply with such an order may be punished by a fine for civil contempt.”

You will find the entire decision here. Al Mohler (from whose blog I learned of the California case) comments here.



  1. There is absolutely no threat to homeschoolers from the proceedings there. One family with a long and documented history of runs ins with child welfare in CA was homeschooling without properly registering their home as a private school in CA. They got caught. They tried to hide behind homeschool laws that don’t exist and the judge called them on it. So now they are crying religious persecution.

    This is a child welfare issue, not a homeschooling issue. More details are available at

  2. I agree that this is a child welfare issue. It is also, however, a homeschooling issue.

    The court decision I reference above clearly and explicitly indicates that by California law, homeschools are not at all to be equated with private schools. It states, in part, “Additionally, the Turner [a case used to provide legal precedent for the present case] 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.” Therefore, your contention that the family in question ought to have properly registered their homeschool as a private school would not technically seem to be a legal possibility in California, even though families there have apparently been using umbrella organizations as a loophole for years.

    And I do not disagree that there are families out there who use homeschooling as a cover for laziness, abuse, or other issues. According to the court reports you reference, that is clearly the case in the present situation, and I deplore the wrong behavior of the parents in question.

    My concern is that, whatever the particulars in this case, legal precedent is being set — although given the cases the present decision references, it was set some years ago, but is now being brought to the forefront. A flaw in the Turner court’s decision, in my opinion, is that the court ruled that California’s compulsory education laws are not unconstitutional because they allow a parent an alternative to the public schools. By limiting the alternative to either a private school or home tutoring by a credentialed teacher, however, they place an undue burden upon families who a) object to public school education and b) do not have the resources to participate in a state-approved alternative. For instance, while a family in, say, northern California might have the resources for the parents to homeschool their own children, they might not have a) an acceptable private school within driving distance, b) the resources for one of the parents to become state-certified (either in the time or money that would take), or c) the resources to hire a certified private tutor.

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