When the dean of Chapman Law School, John Eastman, and the dean of the soon-to-open law school at the University of California, Irvine, Erwin Chemerinsky agree that a court’s decision is wrong, there is a high degree of likelihood that it is wrong.
That’s what they did yesterday concerning the opinion in In re RACHEL L, the California appellate decision that purported to hold that home schooling by other than accredited teachers was illegal.
Here is the transcript of the conversation with Eastman and Chemerinksy. Key excerpts:
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 v. the Society of Sisters, and Wisconsin v. 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 v. 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.