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Deans Chemerinsky and Eastman, left and right, agree that the California Appeals Court decision against home schooling is wrong.

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HH: That music means we’ve got the Smart Guys, John Eastman, dean of Chapman University Law School, Erwin Chemerinsky, professor of law at Duke University Law School, soon to be the dean at UCI…Are you familiar, gentlemen, with the California home school decision, John Eastman?

JE: Yeah, in re Jennifer L., is a decision by the Court of Appeals, the state court of appeals, up in Los Angeles.

HH: Right. It’s actually in re Rachel L, in which they hold that California courts must impose, must be bound by a 1953 ruling that kids have got to be in public schools, or accredited private schools, or taught by accredited teachers. John Eastman, your reaction?

JE: Yeah, you know, there’s a lot of case law since that 1953 decision, and I’d be surprised if this stands up to it. Look, I mean, this whole operation was under the umbrella of an accredited institution. Sunland Christian School would provide the curricular materials, provide the supervision, but the actual instruction was going on in the home. And there was no claim, as far as I can tell, that the children were not getting an education. It’s just their particular teachers were their parents. And I…you’d think it’s pretty preposterous that we’re not allowing parents, particularly under supervision of an accredited entity like this, to actually do the kind of education they think is most appropriate for their children.

HH: Erwin, I read from the decision, “it is clear to us that enrollment and attendance in public full-time day school is required by California law for minor children unless 1) the child is enrolled in a private, full-time day school, and actually attends that private school, 2) the child is tutored by a person holding a valid state teaching credential for the grade being taught, or 3) one of the few other statutory exemptions to compulsory school attendance.” Are you shocked by this decision, Erwin Chemerinsky?

EC: Well, I was surprised by it, and this is a place where I think John and I are going to agree. And I have read Justice Croskey’s opinion. It’s a very short opinion for such a major issue. The Supreme Court, back in the 1920’s, talked about the Constitutional right of parents to control the upbringing of their children. The specific case, Pierce V. Society of Sisters, said that parents have a right to send their children to Parochial schools. I think likewise, there’s a right of the parents to have home schooling for their children, so long as there’s adequate education of the children. And I think a state can take steps to make sure that the children are being adequately educated. But I do think part of a parent’s right is to control the upbringing and education of the child.

HH: John Eastman, the court in California distinguished, or actually avoided discussing Pierce and Meyer. Both are cited, a quotation from Pierce is pulled out here. Was it, did the court do justice to the importance of this case?

JE: Well, yeah, I think they discounted it significantly. Now those cases were decided in an era before we had the level of scrutiny, classifications that we have now. But most legal scholars and courts have looked at this, have read back into those cases, that there’s a fundamental right of parents to direct the upbringing of their children. And that means you can only intrude on that, or interfere with it, to serve the most compelling interest, and if it’s narrowly tailored. And while educating children is a compelling interest, it’s not narrowly tailored if you’re blocking an adequate education that’s being provided by the parents themselves. And I think those cases are much more profoundly important than it sounds like this court gave them credit for.

HH: Erwin, the court also dismissed any attempt to cite Wisconsin V. Yoder. Could you explain to our audience what Wisconsin V. Yoder held, and why it would be relevant here?

EC: Wisconsin V. Yoder involved whether Amish parents had the right to take, in this instance, their 14 to 16 year old children, out of school, notwithstanding Wisconsin’s statute that mandated compulsory education up to age 16. And the Supreme Court said that parents have a fundamental right to control the upbringing of their children. It could also emphasize that free exercise of religion was involved in that instance. And the Court also talked about the nature of the Amish community, the way in which education might be inconsistent with it. But there is a part of the opinion that does talk about the right of parents to control the upbringing of children as a fundamental right. And of course, that would be relevant, directly relevant, in this instance.

HH: The court writes, the parents in the instance 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, the court continues, 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 1st Amendment rights. Their statements are conclusional, not factually specific. Moreover, such sparse reputations are too easily asserted by any parent who wishes to home school his or her child. Dean Eastman, that sounds to me like, you know, you’ve got to prove that you really do believe in what you believe.

JE: Well, yeah. I mean, there’s a line here in the existing precedent that says the courts are not supposed to challenge the validity of your beliefs. They can challenge the sincerity of your beliefs, though. But this court, from what you’ve just read, sounds like it’s actually getting into the validity of the beliefs, how central the belief is to them, is it really so core to their religion that they actually direct the upbringing of their children. I’ve got to believe that some of these parents are just fed up with the public school systems, and the kind of things that are being imposed on their kids in those schools, and that’s why they’re looking for an alternative, to educate their children in a way that is appropriate according to their religious faith and other views.

HH: So a couple of questions, Erwin Chemerinsky. Should the publication of this opinion be decertified? And do you expect the California Supreme Court to take the case?

EC: I expect the California Supreme Court to take the case. This is an enormously important issue that certainly involves many people in California who are home schooling their children. And so I would be very surprised if the California Supreme Court doesn’t take the case.

HH: And how do you expect they will rule, Erwin?

EC: I think they’re going to reverse the California Court of Appeal here. I think based on the Supreme Court precedence we’re going to talk about, I think the California Supreme Court is going to say though the government has a compelling interest in making sure that children are well educated, there’s a way of achieving it that’s less restrictive of parents’ rights than completely outlawing home schooling.

HH: John Eastman, your assessment of those two questions?

JE: Yeah, I agree with that as well, but if the California Supreme Court doesn’t do that, I think it’s very likely that the U.S. Supreme Court would weigh in. There’s a huge federal Constitutional right that has been recognized of the parents to direct the upbringing of their children that’s implicated by this decision. And I think you could well see the U.S. Supreme Court weighing in if necessary.

HH: Erwin Chemerinsky, what is the most important case or cases to the discussion of the issues raised in this in re Rachel?

EC: Well, I think it’s the ones that we’ve talked about. Pierce versus the Society of Sisters, and Wisconsin versus Yoder. But there’s certainly more recent cases that more generally talk about the fundamental right of parents to control the upbringing of their children. Both of you remember Troxel versus Granville from 2000, that said a court can’t order grandparent visitation over a parent’s objections, because it violates the right of the parent to control the upbringing of the child.

HH: John Eastman, any other cases you want to add to that list?

JE: That’s a good list. Let’s let Erwin and I end on a point of agreement, as rare, but throughout this discussion.

HH: Erwin, do you expect to file amicus in this case?

EC: Gosh, you know, it’s a new decision. I’d be very interested in maybe John and I can do one together, because this is an unusual instance where we completely agree.

HH: John Eastman?

JE: Yeah, I’m all for that.

HH: That sounds like a wonderful result. Erwin Chemerinsky from Duke University Law School, John Eastman from Chapman University Law School, thanks to you both.

End of interview.


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