IN RE RACHEL L.

OVERCOMING THE ADVERSE EFFECT OF IN RE RACHEL L. ON HOME SCHOOLING IN CALIFORNIA

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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.  

UPDATE #2: 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.

UPDATE #1: On 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.

This article is written in the hope that interested readers who advocate home-schooling will be encouraged despite the holding of this case.  Further, this article may provide a useful starting point for legal research to counter the holdings in this case.  Moreover, this brief discusses practical legal strategies to continue home schooling despite the ruling.  

 
1. INTRODUCTION:

As we incrementally move towards a more socialist, global society, we find that democratic governments and courts and around the world, including the United States and California, are persistently seeking 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 determined that “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 logical and soundly reasoned.  However, such is not the case.  The appellate court relied on older California case law that used an improper constitutional 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 re Rachel L, there appear to be a number of ways for parents to continue to economically and legally home school their children.

Still further, this case serves as a warning to Christians and other people of other faiths.  When your religious rights are being threatened, you ought to seek to involve one or more quality legal counsel and/or nonprofit Christian legal organizations that specialize in protecting citizens religious and constitutional rights.  Had one or more of these legal organizations been involved with the In re Rachel L. case, in my opinion, the case result would have likely been more favorable to home schooling.

2. 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 “home school” their children?

The juvenile court became involved in this case due to Child Family Services discovering allegations of physical and emotional abuse by the father to the oldest child.  Further, the agency learned that all eight (8) of the children in the family had been home schooled by the mother rather than being educated in a public or private school. 

The Los Angeles County trial court (juvenile court) found that the children’s education was poor and their environment “cloistered.”  Nevertheless, the trial court declined to order public or private schooling for the children.  The trial (juvenile) court believed that parents have a constitutional right to school their children in their own 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 by 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 48222); or

(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 the child (for example, short-term child actors, the mentally gifted, or leaves of absence).

Ed. Code, 48220 et seq.

The Appellate Court ruled that the children did not fall under any of the above exemptions (exceptions).  Furthermore, the Appellate Court held that California courts have previously determined that "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 implied 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 above.

In other words, the holding, on its face, seems to imply that in order to home school your child in your home, you must have a state teaching credential or hire a tutor with such a credential. 

The appellate court pointed out that these regulatory provisions of the Education Code (in their predecessor section numbers) were held to be constitutional in People v. Turner (1953) 121 Cal.App.2d Supp. 861.

a. In re Shinn & People v. Turner

The Appeals discussed two other cases previously 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 truant and the juvenile court became their wards because their parents violated the 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 school and instead provided them with instruction that did not come within the exemptions 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 court concluded that "[h]ome education, regardless of its worth, is not the legal equivalent of attendance in school in the absence of instruction by 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., criminal complaint filing; guilty of an infraction; fines; compulsory parent education and counseling; and/or children’s enrollment in a public school--subject to 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 enrollment did not satisfy the specific exemptions provided in the law because: (1) the school was merely an independent study program (ISP) that the children infrequently attended except for taking tests; (2) The children were schooled at home without a credentialed parent or tudor; and (3) Their home schooling 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 held 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 them in Amish ways; that public school attendance took them away from their religious community at a time in their lives when they are to acquire Amish attitudes and integrate into the Amish religious community; therefore, compulsory public high school education for the Amish children "ultimately [would] result in the destruction of the Old Order Amish church community as it exists in the United States today."

In contrast, the In re Rachel L. Appeals Court found mere conclusions and nonspecific facts about the parents' religious 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 Rachel’s parents leaves a potential open door for litigating homeschooling parents to avoid an adverse ruling if the parents provide detailed, specific and sufficient FACTS relating to religious beliefs and practices to establish an exception under the First Amendment.  

Naturally, home-schooled children’s parents who are credentialed may homeschool their children full time.  But it can be 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 obtain a credential, but, for most that will take years to obtain and require significant expenditures.  But see Section below.  Consequently, the Court’s the decision has a potentially far reaching impact.

That’s the bad news.  Now here is the encouraging news:

 

3. 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 that they were not actually teaching the child; rather, the child was being taught through an out of state correspondence course. The court recognized the private school option for homeschooling if the family meets the private school requirements.  Thus, homeschooling parents may be able to register their home as a private school.  See more details in Section 13 below.  In California, a private school does not require a credentialed teacher.

 

4. THE COURT IN THE IN RE RACHEL L CASE USED AN IMPROPER FIRST AMENDMENT (U.S. CONSTITUTIONAL) BALANCING TEST TO COME TO THEIR CONCLUSION THAT THE FIRST AMENDMENT EXCEPTION 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 exercise of religion), the court must utilize the compelling state interest / least restrictive (strict scrutiny) balancing test rather than the reasonable relationship testIn 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 strict scrutiny test formulated in Shebert

This 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 al., 494 U.S. 872 (1990), and Troxel v. Granville (2000) 530 U.S. 57.

 In Troxel v. Granville, 530 U.S. 57 (2000), the Supreme Court confirmed the fundamental right of 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 include the right to choose private or home schooling. Therefore, any regulation of that fundamental right is subject to the strict scrutiny test.

Thus, 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.

 

5. CREDENTIALED TEACHER REQUIREMENT SHOULD BE OVERTURNED.

Home schooling parents may obtain the education and training to become credentialed; but that will take years of time on their part before they qualify and, further, will be expensive and/or 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 teach their children at home.  However, to avoid a First Amendment exception to this rule the school district or other governmental entity must pass the “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 interest in education. To be able to established such a showing is highly questionable in that very few, if any, other states require certification in order to qualify for home school instruction.  For example, in People v. DeJonge, 501 N.W.2d 127 (Mich.1993), the Michigan Supreme Court struck down the certification requirement finding that it was unconstitutional because is was not the least restrictive alternative to achieve education.

Furthermore, California home schools may be able boast of its successes.  Studies may show that homeschooling produces results that are statistically comparable or even superior to the public schools.

The fact that there are roughly 166,000 home-schoolers in California is a reflection that, at a minimum, that many parent believe or know that their children will receive a better quality 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 school.

Therefore, any requirement that home schooling require a credentialed parent or tutor should fail the strict scrutiny test since there probably is no scientifically observed or statistical evidence that home-schooled children are, on average, educationally deficient compared to their public-school peers.

Moreover, the California Court of Appeal’s decision in Re Rachael L. expressed clear skepticism of religious-freedom claims generally, and that is opposed to U.S. Supreme Court precedent. 

 

6. LIST OF CASES ESTABLISHING A PARENTAL LIBERTY INTEREST IN EDUCATION CHOICE.

The cases below establish a liberty interest at issue in this case--the interest of parents in the care, custody, and control of their children, perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court

 Meyer 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 Sisters, 268 U. S. 510, 534-535 (1925)

"[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 his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

Prince v. Massachusetts 321 U. S. 158, 166 (1944)

Stanley v. Illinois, 405 U. S. 645, 651 (1972)

 "It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children `come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'" (citation omitted).

 Wisconsin v. Yoder, 406 U. S. 205, 232 (1972)

 "The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition."

 Quilloin v. Walcott, 434 U. S. 246, 255 (1978):

 "We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected."

 Parham v. J. R., 442 U. S. 584, 602 (1979)

"Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course."

Santosky v. Kramer, 455 U. S. 745, 753 (1982)

Discussing "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child"

 Washington v. Glucksberg, 521 U.S. 702, 720 (1997),

"In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the `liberty' specially protected by the Due Process Clause includes the righ[t] ... to direct the education and 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 protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children including their education including home schooling.

 

7. 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 the decision to home school and, thus, provide for First Amendment protection no matter which constitutional test is applied.  

Moreover, other California appellate districts might come to a different conclusion in law or facts if a similar type of case is presented.

 The parents in California may ask the legislature to clarify the state law and to overturn the Court’s decision.

 Lastly, In Re Rachel L. will most certainly be appealed to the California Supreme Court, and many Christian and First Amendment organizations will participate in filing briefs and/or arguing the case.

 

8. SINCERITY OF RELIGIOUS BELIEFS:

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 subjecting one’s impressional children to the public school’s one-sided indoctrination of atheistic human secularism, Darwinian naturalistic evolution that contradicts the Genesis account of creation, student’s foul language, provocative dress, and the like may well be in diametric conflict with the sincere religious beliefs, practices and life that parents desire to be instilled in their children during their influential and formative years.  For example, certain California public high schools have been known to show Rated “R” movies to their students without parental notice or permission.

God, in the Bible, commands that parents should instruct and train their children, and that implies responsibility for 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 their children is now established beyond debate as an enduring American tradition."

The Yoder court, which permitted Wisconsin Amish to withdraw their children from public school after eighth grade, described 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, the question of whether an activity is motivated by a sincerely held religious 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 sincerely held religious belief, it is making a factual determination.

The right to free exercise of religion as guaranteed by the First Amendment to the United States Constitution. When a court analyzes a challenge to a statute under the Free Exercise of Religion Clause it must consider:

"(1) whether the activity interfered with by the state is motivated by and rooted in a legitimate and sincerely-held religious belief;

(2) whether the parents' free exercise of religion has been burdened by the regulation, and the extent of or impact of the burden on their religious practices; and

(3) whether the state has a compelling interest in the regulations which justifies the burden on the free exercise of religion and overrides the interest of the parents in exercising their religious practices."

 Wisconsin 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 weight to an activity motivated by an insincere belief), rev'd on other grounds, 329 U.S. 187 (1946); United States v. Seeger, 380 U.S. 163 (1965).

 The U.S. Supreme Court has declared that courts ought not deny people religious exemptions to even laws of vital national security (e.g. draft laws) if an individual claimant has a “sincere” religious objection, even if many other people raise insincere pretextual objections.” United States v. Seeger (1965).

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 the parents religious beliefs.  However, the trial court ought to make that specific determination, not the appellate court.

  

9. SEPARATION OF CHURCH AND STATE:

Under principles and doctrine of separation of church and state as currently defined by case law, Christian parents (and parents of other faiths) ought to have broad discretion to 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 probably would not be constitutionally entitled to insist on the state's financial 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 to 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 schoolers by complaining that such an objection is “too easily asserted by any parent who wishes to home school his child.” 

“The parents in the instant case have asserted in a declaration that it is because of their “sincerely held religious beliefs” that they home school their children and those religious beliefs “are based on Biblical teachings and principles.” Even 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 us to 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 representations are too easily asserted by any parent who wishes to home school his or her child.”

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 for home schooling.  Nevertheless, it must be reiterated that the appellate court used an outdated, overturned constitutional legal analysis.

 

10. SUPREMECY CLAUSE

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 District, 987 F.2d 641, 646 (9th Cir. 1993) (“state[s] cannot abridge rights granted by federal law. . .State law must therefore yield”).

  

11. THE BEST INTEREST OF CHILD TEST DOES NOT APPLY:

The 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 itself into the private realm of the family to further question fit parents' ability to make the best decisions regarding their children. Reno v. Flores, 507 U. S. 292, 304.  The state may not interfere in child rearing decisions when a fit parent is available. Troxel v. Granville, 530 U.S. 57 (2000)

Consequently, 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 putting forth a religious standard by their actions which the First Amendment prohibits.  The courts and the state government lack jurisdiction on this kind of home government even though they disagree with the religious choices made by parents.

  
12. RECENT 2007 US SUPREME COURT CASE REGARDING THE
RIGHT TO HOME SCHOOL CHILDREN:

Morse v. Frederick 127 S. Ct. 2618 (2007) examined the constitutionality of public schools ability to regulate a student’s speech.  In his opinion, Supreme Court Justice Thomas said, “…Parents 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 boards or legislatures; they can send their children to private schools or home school them; or they can simply move.”

 

13. CALIFORNIA HOME SCHOOL OPTIONS WITHOUT THE NECESSITY
OF ASSERTING FIRST AMENDMENT RIGHTS:

General 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 subjects include 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, science, fine arts, health, and physical education.

Home School Statutes: Currently, California has no home school statute.

Furthermore, the terms “homeschool”, “homeschooling” and “home education” do not appear in the California Education Code. However, the broad language of the private school exemption covers home-based private schools and home schooling.

Alternative California Statutes that permit Home Schools:

Choice #1. Education Code 33190 and 48222:  Qualify the individual home school as private school.  Do this by filing an annual private school affidavit (Private School Affidavit 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; and (e) Filed the Affidavit with the Superintendent of Public Instruction between Octber 1 and 15 each school year. As soon as the attendance of the children in a private school that has filed an affidavit is established, a truancy officer or SARB no longer has jurisdiction to proceed with a truancy action. The affidivate must be verified by the district attendance supervisor or other person designated by the board of education.

Choice #2. Education Code 48224: Home school could have instruction provided by a certified private tutor or certified parent.

Choice #3. Education Code 51745: (a) Enroll in a home independent study program (ISP).  (b) Use the public school curriculum.  Thus, the child is deemed a public school student.  Therefore, he or she must obey the rules and policy of the public school.

Choice #4. Choice 1 and 3 Combo: Enroll in a private school satellite program.  Take a Ed. Code 48222 compliant independent study program (ISP) through the private school.  Many home school families have organized private ISPs with small or large numbers of families.

Teach children in English the several branches of study required in the public schools. (Education Code 33190, 48222, 51210, 51220).  

Thousands of California parents successfully teach their children at home, pursuant to the private school exemption set forth in Education Code Section 48222.  And only a few of them are credentialed teachers.

 

14. CONCLUSION

In short, In re Rachel L. was wrongly decided, used outdated Constitutional analysis, and, though sounding neutral, there were hints of bias against religious grounds for homeshooling. The parents evidence of sincere religious belief could have and/or should have been bolstered.  Moreover, despite this case’s holdings, there appear to be valid legal legal methods to homeschool your children without the necessity of having or obtaining a teacher’s credential.  Further, In re Rachel L will likely be heard by the California Supreme court.

Disclaimer: This article provides general information only.  It is not and is no substitute for legal advice from qualified counsel who can take the time to investigate, inquire and analyze all of the surrounding facts 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. 

 

   

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March 2008 by Matthew B. Tozer

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