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BROKEN GLASS SLIPPER: No Fairy Tale Ending

Author's Note: The laws described in this article were substantially changed in 2009 to make Idaho the state with the greatest home schooling freedoms in the country. Please read the new information at the 'Idaho Law' tab to the left.

      Chess is not my forte. I am simply unable to think more than one move ahead.

      But law is different. As I study the history and recent developments of the California appellate court decision prohibiting parents from teaching their children at home, I grow increasingly pessimistic. I look several moves ahead in the legal process and see outcomes that are not encouraging. Instead of a judicial Prince Charming coming to our rescue, I see only a broken glass slipper.

      Barring divine intervention, I believe that home educators in Idaho are at substantial risk of having their right to home school seriously eroded by the court decisions in California. Not thrown out altogether, but considerably weakened. I state these expectations not to be an alarmist, but to forewarn home educators in Idaho of the dangers that the California case presents.

      Keep in mind that this analysis is being written in late June, 2008. The initial appellate court decision has been withdrawn. Briefs by a small army of world-class attorneys have been submitted. Oral arguments have been made to the appeals court. The case is under submission and awaiting the court's new decision. Both sides are optimistic that their arguments will prevail.

Current Status

      The good news is that, after a nationwide public outcry, the appellate court decided to reconsider its earlier decision.

      The bad news is that the decision to do so reflects the court's predisposition to reaffirm its original decision. The devil is in the details. And in this case, the significant detail is that, in agreeing to reconsider the case, the court specifically asked for arguments from all three of California's teachers unions. No invitation to hear from Home School Legal Defense Association (HSLDA) or any of the other home schooling organizations in the country or the state. Just from the three teachers unions. That strikes me as stacking the deck.

      The other good news is that the HSLDA and many other excellent organizations and public officials have presented persuasive arguments in support of the parents' constitutional right to teach their children at home.

The Issues

      This case boils down to two critical issues. One is local to California and one is also important here in Idaho.

      The court first disagreed with the lower court's conclusion that all parents have a constitutional right to teach their children at home. The appellate court said that no such right exists in this country.

      In arriving at this conclusion, the court pointed out that the U.S. Supreme Court decisions which have affirmed parents' rights to "direct the upbringing and education of their children" were not home schooling cases. They were cases that arose in disputes involving public and private schools.

      Then the court looked at California's existing statutes and found that they made no express provision for parents to teach their children at home unless at least one parent holds a valid teaching certificate.

Based on these conclusions, the court then ordered the parents in the case to enroll their children in their local public school or in a genuine private school. Home education, even with private school oversight, was expressly prohibited.

      Home school defenders have for decades argued that the principles from the U.S. Supreme Court decisions - that parents have the right to direct the education of their children - should be applied to home schooling cases. But the Supreme Court has never confirmed that this approach is a correct application of the principles from those other cases.

      And now, the California appellate court decision contends that these arguments are not an acceptable extension of those Supreme Court rulings.

The Endgame

      So where is this case headed? Up to the higher courts. Here is what I see as the logical flow chart for this case.

      First, in its revised decision, the California appellate court will either support parents' constitutional right to teach their own children or they won't.

      If they do, the attorneys who brought the original case will appeal to the California Supreme Court. If the appellate court repeats its decision that parents have no such right, then the attorneys representing the parents will appeal to the California Supreme Court. Either way, the case goes up to the next level.

      It is probably worth noting that the California Supreme Court is the very same court that recently discovered a heretofore hidden right in the California constitution for homosexuals to marry. So don't hold your breath for a favorable decision from that quarter.

      If the California Supreme Court rules that parents have no constitutional right to teach their children at home, the case will then be appealed by the parents to the federal courts. The decision in this case necessarily involves an argument over a constitutional right, so the appeal to the federal courts will be natural.

      In the unlikely event that the Supreme Court should rule in favor of the parents' rights, then the attorneys who filed the original case will, of course, be the ones to file an appeal to the federal courts. Either way, we end up in the federal courts. Indeed, it is possible that the appeal of the case to the California Supreme Court might even be skipped by moving the case directly to the federal courts. Since the case turns upon the interpretation and application of a federal constitutional issue, either of the parties could appeal the case directly to the federal courts without going to the California Supreme Court in the process.

      As the case plods through the federal courts, it will eventually arrive at the Ninth Circuit Court of Appeals. Therein lies the risk for Idaho home schoolers.

      Idaho is part of what is called the Ninth Circuit. The nine western states are judicially grouped together as the Ninth Circuit. Decisions by any judges in the Ninth Circuit Court of Appeals, based in San Francisco, are direct authority in all of those nine states.

      The Ninth Circuit has a long and distinguished history of radical decisions which take a consistently and decidedly liberal view on a wide range of legal issues. It would be an almost foregone conclusion that the Ninth Circuit will be philosophically opposed to home education.

      After all, this is the circuit that ruled that, once a parent elects to enroll his or her child in a public school, that parent has absolutely no standing to criticize what goes on in that school. The parents cannot complain about any of the far-left programs routinely offered in the public schools. Their only recourse is to put the child in private school or, until now, to teach the child at home.

      So we should not expect the Ninth Circuit to rule that parents have a federal constitutional right to teach their children at home as part of all parents' rights to direct the education of their children.

      When the Ninth Circuit makes its decision, it will initially be binding upon the whole circuit, including Idaho. That means that, if the Ninth Circuit rules that there exists no constitutional right to teach one's children at home, Idaho parents will be bound by that decision.

      What happens next? An appeal by the attorneys representing the parents in the case will follow. That appeal will be made to the U.S. Supreme Court. But unfortunately, the Supreme Court is not required to accept the case for review. Indeed, that court historically only agrees to hear about one in every hundred cases that are appealed. So the likelihood of the Supreme Court deciding to hear this case is quite remote.

      That will leave the decision by the Ninth Circuit Court of Appeals as the controlling law for the state of Idaho. And that is how Idaho's parents will lose their constitutional right to teach their children at home.

      If these predictions turn out to be on the mark, there will be no Prince Charming coming to rescue of the Cinderella home schoolers in their distress.

      Does that mean that Idaho's parents can no longer teach their children at home? No. It means that they will no longer have an automatic constitutional right to do so. Their rights based on state law will continue to offer protection. But a constitutional right has always proven much more difficult to circumvent than a statutory right.

Where Does That Leave Us?

      What can we do now to avoid this outcome? At least three things.

      First, we will need to seek a clearer declaration in Idaho statutes that parents have the right to teach their children at home. Although we have a good statute already, it can be improved. So look for a proposal in early 2009 to address this issue in the Idaho legislature. In this manner, even if our right is not deemed constitutional, at least we will not be left with any ambiguity of the type which the California court manipulated to declare home schooling illegal.

      Second, the significance of the Parental Rights Amendment to the U.S. Constitution will become even more important. That amendment will expressly and unambiguously declare that parents have the right to direct the education and upbringing of their children. If passed, this amendment will trump the Ninth Circuit Court of Appeals' decision to the contrary. It will ultimately be our best hope for the continuing right to teach our children at home. If you have not already done so, please go to parentalrights.org and sign the Parental Rights Amendment petition. You will receive information and alerts regarding the efforts to enact the Parental Rights Amendment.

      Third, your vote in the November election will help send legislators to Washington D.C. and Boise who will vote for laws that will protect your right to teach your children at home. Check the ICHE website at iche-idaho.org to find out which candidates in your district are committed to protecting your freedoms. Just click on "Your Legislator Comments on Home Schooling."

      As we watch parents in Germany recently thrown in jail for daring to teach their children at home, we should never lose sight of the fact that our freedoms are never more than one or two misguided judicial decisions away from elimination. Diligence in the defense of our rights is no longer optional.

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