IN RE RACHEL L.
ADVERSE EFFECT OF IN RE RACHEL L. ON HOME SCHOOLING
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The recent 2007 California
appellate case holding in
the case of In re Rachel L. ruled that
homeschooling by a Christian
family was in violation of California law.
August 2008 - In a unanimous decision, the California Court of Appeal, Second Appellate Distrist, reversed its earlier ruling. The earlier ruling is described in Section 2 below.
March 25, 2008, the California Court of Appeal granted a Motion to rehear
this appeal. A new round of briefings are due in
late April 2008
after which a decision will likely be rendered several months later.
article is written in
the hope that interested readers who advocate home-schooling will be
despite the holding of this case. Further, this article may
useful starting point for legal research to counter the holdings in
Moreover, this brief discusses practical legal strategies to
home schooling despite the ruling.
As we incrementally move towards
a more socialist,
global society, we find that democratic governments and courts and
world, including the United States and California, are persistently
judicial and legislative means to progressively limit our freedoms, our
choices, and our privacy.
The recent 2007 California
appellate case of In re
Rachel L. appears to be an example of this trend.
In this case, the
Appellate Court stated that California courts have previously
“under provisions in the California Education Code, parents
do not have a
constitutional right to home school their children."
A casual reading of the
published appellate court
opinion can lull one into a false sense that the facts and law were
soundly reasoned. However, such is not the case.
court relied on older California case law that used an improper
balancing test in light of newer U.S. Supreme Court cases.
Further, even assuming, solely
for sake of
discussion, that the law and reasoning were sound in the case of In
Rachel L, there appear to be a number of ways for parents to
economically and legally home school their children.
Still further, this case
serves as a warning to Christians and other people of other
your religious rights are being threatened, you ought to seek to
involve one or
more quality legal counsel and/or nonprofit Christian legal
specialize in protecting citizens religious and constitutional
Had one or more of these legal organizations been involved with the In
Rachel L. case, in my opinion, the case result would have
likely been more
favorable to home schooling.
FACTS AND HOLDING
OF IN RE RACHEL L.
In this minor’s
dependency case, the California
appellate court considered the following question: May parents legally
school” their children?
The juvenile court became
involved in this case due
to Child Family Services discovering allegations of physical and
abuse by the father to the oldest child. Further, the agency
all eight (8) of the children in the family had been home schooled by
mother rather than being educated in a public or private
The Los Angeles County trial
court (juvenile court)
found that the children’s education was poor and their
“cloistered.” Nevertheless, the trial
court declined to order public or
private schooling for the children. The trial (juvenile)
that parents have a constitutional right to school their children in
home. The appellate court disagreed.
The Second District Appellate
Court held that,
according to the statutory laws contained in California Education Code,
enrollment and attendance in a public full-time day school is required
California law (Education Code §48200) for
minor children unless:
(1) The child is enrolled
full-time in a private day school and
actually regularly attends
that private school (Education Code
(2) The child is tutored by
a person holding a valid state teaching credential
for the grade being
taught (Education Code §48224); or
(3) One of the other few
statutory exemptions to compulsory public school attendance applies to
child (for example, short-term child actors, the mentally gifted, or
Code, § 48220 et seq.
The Appellate Court ruled that
the children did not
fall under any of the above exemptions (exceptions).
Appellate Court held that California courts have previously determined
"under provisions in the Education Code, parents do not have a
constitutional right to home school their children."
Further, the appeal panel stated
that in Pierce v.
Society of Sisters, 268 U.S. 510 the United States Supreme
Court ruled that
even though, under the United States Constitution, parents have an
fundamental right to raise and educate their children, the
State also has
a right to "regulate" such rights. The appellate court noted
that California regulates such rights as described
In other words, the holding, on
its face, seems to
imply that in order to home school your child in your home, you must
state teaching credential or hire a tutor with such a
The appellate court pointed out
that these regulatory
provisions of the Education Code (in their predecessor section numbers)
held to be constitutional in People v. Turner
(1953) 121 Cal.App.2d
a. In re Shinn &
People v. Turner
The Appeals discussed two other
decided on this issue.
In the case of In re
Shinn (1961) 195
Cal.App.2d 683, 686-687, the children were found to be habitually
the juvenile court became their wards because their parents violated
compulsory education laws in effect at that time.
In People v. Turner
(1953) 121 Cal.
App. 2d Supp. 861, 865 et seq. "the court affirmed a judgment of
conviction of parents who refused to send their children to public
instead provided them with instruction that did not come within the
to the compulsory public school education law."
The Appeals Court in In
re Rachel L. stated
that, regarding the state's education statutes, the Turner
concluded that "[h]ome education, regardless of its worth, is not the
legal equivalent of attendance in school in the absence of instruction
qualified private tutors."
The court pointed out that if
parents do not comply
with those statutes, they may be subject to statutory penalties (e.g.,
complaint filing; guilty of an infraction; fines; compulsory parent
and counseling; and/or children’s enrollment in a public
criminal contempt powers (§§ 48291 & 48293.)
The Christian parents claimed
that they were home
schooling legally in that their children were enrolled with the Sunland
Christian School. The Appeals Court disagreed; and it held that the
did not satisfy the specific exemptions provided in the law because:
school was merely an independent study program (ISP) that the children
infrequently attended except for taking tests; (2) The children were
at home without a credentialed parent or tudor; and (3) Their home
was not a private school.
b. U.S. Constitution
(Wisconsin v. Yoder)
The parents argued that they had
a First Amendment Federal
Constitutional right to educate their children based on their sincerely
religious beliefs based on the United States Supreme Court
case of Wisconsin
v. Yoder. The Appeals Court rejected that argument.
The Court distinguished
and contrasted the facts of Yoder with In
re Rachel L.
The Supreme Court in Yoder
allowed the devout
Amish parents keep their children out of the public schools to educate
Amish ways; that public school attendance took them away from their
community at a time in their lives when they are to acquire Amish
integrate into the Amish religious community; therefore, compulsory
school education for the Amish children "ultimately [would] result in
destruction of the Old Order Amish church community as it exists in the
In contrast, the In re
Rachel L. Appeals Court
found mere conclusions and nonspecific facts about the parents'
beliefs which were not sufficiently comparable to the facts in the Yoder
case; therefore, the appellate justices held that
“application of California's
compulsory public school education law” did not
“violate[ ] their First
Amendment rights" in the U.S. Constitution. The
lack of factually
specific evidence of a sincere religious belief and practice from
parents leaves a potential open door for litigating homeschooling
avoid an adverse ruling if the parents provide detailed, specific and
sufficient FACTS relating to religious beliefs and practices to
exception under the First Amendment.
children’s parents who are
credentialed may homeschool their children full time. But it
safely assumed that there are few homeschool parents that are
credentialed. Moreover, parents may hire a credentialed
tudor; but that
will be cost-prohibitive to most. Furthermore, parents may
credential, but, for most that will take years to obtain and
significant expenditures. But see Section below.
Court’s the decision has a potentially far reaching
That’s the bad
news. Now here is the
THE IN RE
RACHEL L. CASE LEAVES AN OPEN DOOR FOR PARENTS TO REGISTER
THEIR HOME AS A
PRIVATE SCHOOL (WHICH PARENTS HAVE SUCCESSFULLY ACCOMPLISHED FOR YEARS).
The appellate court in the case
of In re Rachel L.
relied on two cases People v. Turner (1953)
121 Cal. App. 2d. 861
and In re Shinn (1961)
195 Cal.App. 2d 683 and postulated
that they, with limited exceptions, approved prohibiting homeschooling.
However, the Shinn case actually supports the
legality of homeschooling
using the private school laws. The Shinn court held
that the subject
family did not satisfy the private school requirements for the reason
were not actually teaching the child; rather, the child was being
through an out of state correspondence course. The court recognized the
school option for homeschooling if the family meets the private school
Thus, homeschooling parents may be able
to register their home as a
private school. See more details in Section 13
California, a private school does not require a credentialed teacher.
THE COURT IN THE IN
RE RACHEL L CASE USED AN IMPROPER FIRST AMENDMENT (U.S.
BALANCING TEST TO COME TO THEIR CONCLUSION THAT THE FIRST AMENDMENT
ALLOWING HOME SCHOOLING DOES NOT APPLY.
The U.S. Supreme Court in Sherbert
v. Verner 374 U.S. 398 (1963)
decided AFTER the Turner and Shinn case,
held that whenever there
is a violation of an individual’s fundamental rights (for
example, the parents’
right to educate their children, or First Amendment right to the free
of religion), the court must utilize the compelling
state interest /
least restrictive (strict scrutiny) balancing test rather than the
relationship test. In the 2007
case of In re Rachel L.,
the California Appellate Court, relying on Turner, inappropriately
applied the reasonable relationship test which is easier for
a court to not
conclude the the First Amendment protection does not apply than the
scrutiny test formulated in Shebert.
appropriateness of using the strict
scrutiny test was confirmed by the United States Supreme Court in the
case of Employment
Division, Department of Human Resources of Oregon, et al. v. Smith et
494 U.S. 872 (1990), and Troxel v. Granville (2000)
530 U.S. 57.
Troxel v. Granville, 530
U.S. 57 (2000), the Supreme Court confirmed the fundamental
parents to the care, custody, and control of their
children. The Court
included a parent’s fundamental right to educate
his or her child in those fundamental rights. This would
right to choose private or home schooling. Therefore, any regulation of
fundamental right is subject to the strict scrutiny test.
the Turner decision upon
which In re Rachel L was based upon should be
disfavored since that
court’s decision was not based on a strict scrutiny standard.
REQUIREMENT SHOULD BE OVERTURNED.
schooling parents may obtain the
education and training to become credentialed; but that will take years
on their part before they qualify and, further, will be expensive
cost-prohibitive, and, therefore, an undue burden on parents.
In re Rachael L. held that homeschool
parents must use the exemption set forth in
Education Code section 48224 and have a teaching credential in order to
their children at home. However, to avoid a First Amendment
this rule the school district or other governmental entity must pass
“strict scrutiny test”, that is, they must show
that credential requirement for
home schooling is a compelling governmental interest and is the least
restrictive means available to achieve the state’s legitimate
education. To be able to established such a showing is highly
that very few, if any, other states require certification in
qualify for home school instruction. For example, in People
501 N.W.2d 127 (Mich.1993), the Michigan Supreme Court struck
certification requirement finding that it was unconstitutional
was not the least restrictive alternative to achieve education.
California home schools may
be able boast of its successes. Studies may show that
produces results that are statistically comparable or even superior to
The fact that there are roughly
home-schoolers in California is a reflection that, at a minimum, that
parent believe or know that their children will receive a better
education by home schooling than in the state’s public
schools and/or there is
a substantial religious conflict in sending their children to public
Therefore, any requirement that
require a credentialed parent or tutor should fail the strict scrutiny
since there probably is no scientifically observed or statistical
home-schooled children are, on average, educationally deficient
their public-school peers.
the California Court of Appeal’s
decision in Re Rachael L. expressed clear
religious-freedom claims generally, and that is opposed to U.S. Supreme
OF CASES ESTABLISHING A PARENTAL LIBERTY INTEREST IN EDUCATION
The cases below establish a
liberty interest at issue
in this case--the interest of parents in the care, custody, and control
their children, perhaps the oldest of the fundamental liberty interests
recognized by the U.S. Supreme Court
v. Nebraska , 262 U. S. 390, 399, 401 (1923):
The right of parents to
"establish a home and
bring up children" and "to control the education of their own."
Pierce v. Society of
268 U. S. 510, 534-535
"[L]iberty of parents
and guardians" includes the right "to direct the upbringing and
education of children under their control." And that "[t]he child is
not the mere creature of the State; those who nurture him and direct
destiny have the right, coupled with the high duty, to recognize and
him for additional obligations."
Prince v. Massachusetts 321 U. S. 158, 166 (1944)
Stanley v. Illinois, 405 U. S. 645, 651 (1972)
is plain that the interest of a parent in the companionship, care,
management of his or her children `come[s] to this Court with a
respect lacking when appeal is made to liberties which derive merely
shifting economic arrangements'" (citation omitted).
406 U. S. 205, 232 (1972)
"The history and
culture of Western
civilization reflect a strong tradition of parental concern for the
upbringing of their children. This primary role of the parents in the
upbringing of their children is now established beyond debate as an
434 U. S. 246, 255
have recognized on numerous occasions that the relationship between
child is constitutionally protected."
v. J. R.,
442 U. S. 584, 602 (1979)
historically has reflected Western civilization concepts of the family
unit with broad parental authority over minor children. Our cases have
consistently followed that course."
Santosky v. Kramer, 455 U. S. 745, 753 (1982)
"[t]he fundamental liberty interest of natural parents in the care,
custody, and management of their child"
v. Glucksberg, 521 U.S. 702, 720 (1997),
long line of cases, we have held that, in addition to the specific
protected by the Bill of Rights, the `liberty' specially protected by
Process Clause includes the righ[t] ... to direct the
upbringing of one's children" (citing Meyer and Pierce].
In light of this extensive
precedent, it cannot now
be doubted that the Due Process Clause of the Fourteenth Amendment
fundamental right of parents to make decisions concerning the care,
and control of their children including their education including home
DOES THIS CASE
ACT AS A PRECEDENT? YES, BUT…
In a future case, a trial court
could find one or
more facts to be more fact specific as to sincere religious beliefs in
decision to home school and, thus, provide for First Amendment
matter which constitutional test is applied.
other California appellate
districts might come to a different conclusion in law or facts if a
type of case is presented.
parents in California may ask
the legislature to clarify the state law and to overturn the
In Re Rachel L. will
most certainly be appealed to the California Supreme Court, and many
and First Amendment organizations will participate in filing briefs
arguing the case.
The most significant difference
between a devout
Christian’s understanding and the role of education is the
Bible. For a
Christian, the Holy Scriptures are supreme rule of life. And
one’s impressional children to the public school’s
one-sided indoctrination of
atheistic human secularism, Darwinian naturalistic evolution that
the Genesis account of creation, student’s foul language,
and the like may well be in diametric conflict with the sincere
beliefs, practices and life that parents desire to be instilled in
children during their influential and formative years. For
certain California public high schools have been known to show Rated
to their students without parental notice or permission.
the Bible, commands that parents
should instruct and train their children, and that implies
educating their children.
In Wisconsin v. Yoder
406 U.S. 205, 232 (1972)
it stated that "the primary role of the parents in the upbringing of
children is now established beyond debate as an enduring American
court, which permitted Wisconsin Amish
to withdraw their children from public school after eighth grade,
additional obligations of parents to include "the inculcation of moral
standards, religious beliefs, and elements of good citizenship." Wisconsin
v. Yoder, 406 US . 205, 233 (1972).
While the questions of whether a
statute burdens a
person's right to free exercise of religion and whether the State has a
compelling interest justifying the burden are questions of law,
question of whether an activity is motivated by a sincerely held
belief is a question of fact. People v.
Mullins, 50 Cal.App.3d
(1975) 61, 123. Thus, when the trial
court considers whether the parents' actions were motivated by a
religious belief, it is making a factual determination.
right to free exercise of religion
as guaranteed by the First Amendment to the United States Constitution.
court analyzes a challenge to a statute under the Free Exercise of
Clause it must consider:
whether the activity interfered with by the state is motivated by and
a legitimate and sincerely-held religious belief;
the parents' free exercise of religion has been burdened
regulation, and the extent of or impact of the burden on their religious practices; and
the state has a compelling interest in the regulations which justifies
burden on the free exercise of religion and overrides the interest of
parents in exercising their religious
v. Yoder, 406 U.S. 205, 92 S.Ct. 1526 (1972)."
United States v. Ballard, 322 U.S. 78 (1944) (Although
the state may not
examine the truth or falsity of religious beliefs, it may give less
an activity motivated by an insincere belief), rev'd on other grounds,
187 (1946); United States v. Seeger, 380 U.S. 163
U.S. Supreme Court has
declared that courts ought not deny people religious exemptions to even
vital national security (e.g. draft laws) if an individual claimant has
“sincere” religious objection, even if many other
people raise insincere
pretextual objections.” United States v. Seeger
One of the
chief factors in the findings of In
re Rachael L. was that “[t]heir statements are
conclusional, not factually
specific” and the appellate court questioned the sincerity of
religious beliefs. However, the trial court ought to make
determination, not the appellate court.
CHURCH AND STATE:
principles and doctrine of
separation of church and state as currently defined by case law,
parents (and parents of other faiths) ought to have broad
choose a private school or even home-school
their children based on sincere religious beliefs, while, at
the same time,
under the same modern interpretation of separation principles, they
would not be constitutionally entitled to insist on the state's
assistance for that choice in the form of vouchers.
Again, the Supreme Court allowed
an entire Christian
sect, the Amish, to obtain a constitutionally-based religious exemption
compulsory schooling laws for children beyond the eighth grade level.
(Wisconsin v. Yoder (1972)).
Yet here, in
the case of In re Rachel L., the
Court of Appeal expressed skepticism about allowing individual
religious-freedom objections to compulsory school attendance by home
by complaining that such an objection is “too easily asserted
by any parent who
wishes to home school his child.”
in the instant case have asserted in a declaration that it is because
“sincerely held religious beliefs” that they home
school their children and
those religious beliefs “are based on Biblical teachings and
if the parents’ declaration had been signed under penalty of
perjury, which it
was not, those assertions are not the quality of evidence that permits
say that application of California ’s compulsory public
school education law to
them violates their First Amendment rights.
Their statements are
conclusional, not factually specific. Moreover, such sparse
too easily asserted by any parent who wishes to home school his or her
Again home-school parents ought
to be able to
overcome the restrictive holdings of In re Rachel L
by providing a
better quality, more fact rich testimony as to their religious reasons
schooling. Nevertheless, it must be reiterated that the
used an outdated, overturned constitutional legal analysis.
State constitutional provisions
or law cannot
override federal constitutional rights (such as the right to freedom of
religion and parental rights). See Garnett v. Renton School
F.2d 641, 646 (9th Cir. 1993) (“state[s] cannot abridge
rights granted by
federal law. . .State law must therefore yield”).
INTEREST OF CHILD TEST DOES NOT APPLY:
United States Supreme Court has
stated: "There is a presumption that fit parents act in their
children's best interests, Parham v. J. R., 442
U.S. 584, 602; there
is normally no reason or compelling interest for the State to inject
into the private realm of the family to further question fit parents'
to make the best decisions regarding their children. Reno v.
Flores, 507 U.
S. 292, 304. The state may not interfere in child
when a fit parent is available. Troxel v. Granville, 530 U.S.
the State cannot use the
“best interest of the child” standard to substitute
its judgment for a fit
parent. The First Amendment prevents such action
because the rearing
of children and the best interest of children is often based on ones religious beliefs, which
invoke the separation of
church and state doctrine. In most cases, by the
state imposing any
standard of rearing of children including home schooling, they are
forth a religious
standard by their actions
which the First Amendment prohibits. The courts and the state
lack jurisdiction on this kind of home government even though they
with the religious choices made by parents.
RECENT 2007 US SUPREME COURT CASE
RIGHT TO HOME SCHOOL CHILDREN:
127 S. Ct. 2618 (2007) examined the
constitutionality of public schools ability to regulate a
speech. In his opinion, Supreme Court Justice Thomas said,
decide whether to send their children to public schools…If
parents do not like
the rules imposed by those schools, they can seek redress in school
can send their children to
private schools or home school them; or they can simply
OPTIONS WITHOUT THE NECESSITY
OF ASSERTING FIRST AMENDMENT RIGHTS:
Education Rules: Children must
attend school “between the
ages of 6” [by December 2] (§ 48200) and under 18
years of age.” California
Education Code §§ 48200, 48400, and
48410. Public schools only
require a minimum of 175 days of instruction. Required
English and one must “offer instruction in the several
branches of study
required to be taught in the public schools.” For
example, in Grades 1-6,
the required courses include English, mathematics, social sciences,
fine arts, health, and physical education.
Currently, California has no home school statute.
Furthermore, the terms
and “home education” do not appear in the
California Education Code. However, the broad language of the private
exemption covers home-based private schools and home schooling.
California Statutes that
permit Home Schools:
Education Code §33190 and §48222: Qualify the
individual home school as private school.
Do this by filing an annual private school affidavit (Private School
Form) that: (a) The instructors must be capable of teaching; (b) The
instruction is in English; (c) Instruction is in several areas of study
required in public schools; (d) Attendance must be kept in a register;
Filed the Affidavit with the Superintendent of Public Instruction
Octber 1 and 15 each school year. As soon as the attendance of the
a private school that has filed an affidavit is established, a truancy
or SARB no longer has jurisdiction to proceed with a truancy action.
affidivate must be verified by the district attendance supervisor or
designated by the board of education.
#2. Education Code 48224:
Home school could have instruction provided by a certified private
Education Code 51745: (a) Enroll in
a home independent study program (ISP). (b) Use the public
curriculum. Thus, the child is deemed a public school
Therefore, he or she must obey the rules and policy of the public
#4. Choice 1 and 3 Combo: Enroll in a private school
Take a Ed. Code §48222 compliant independent study program
(ISP) through the
private school. Many home school families have organized
with small or large numbers of families.
children in English the several
branches of study required in the public schools. (Education
§§33190, 48222, 51210, 51220).
Thousands of California parents
their children at home, pursuant to the private school exemption set
forth in Education
Code Section 48222. And only a few of them are
short, In re Rachel L. was
wrongly decided, used outdated Constitutional analysis, and, though
neutral, there were hints of bias against religious grounds
homeshooling. The parents evidence of sincere religious belief
and/or should have been bolstered. Moreover, despite this
holdings, there appear to be valid legal legal methods to homeschool
children without the necessity of having or obtaining a
credential. Further, In re Rachel L will
likely be heard by the
California Supreme court.
article provides general information only.
It is not and is no substitute for legal advice from qualified counsel
take the time to investigate, inquire and analyze all of the
of your legal matter. Laws
frequently change and vary from state to state. No
legal advice is given and no attorney/client or other relationship is
established or intended.