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Who's Afraid of Those Big Bad Homeschoolers? A Sensible Homeschooling Decision by a California Court

by Richard Fossey & Michael Sayler - January 08, 2009

Last August, a California appellate court issued a sensible decision that upheld the right of California parents to homeschool their children. In re Jonathan, as the case was titled, provides public educators with an opportunity to examine their views about homeschooling.

Homeschooling in the United States has grown rapidly over the last twenty years. Today, all fifty states allow homeschooling in some form (Kunzman, 2008); and well over a million children are schooled by parents in their homes.  As homeschooling families have increased in numbers, their political strength has increased as well. In fact, a homeschooling decision from a California appellate court, released last February, illustrates just how strong the homeschooling community has grown as a political force in the United States.

February 2008—In re Rachel: A State Court Strikes Down Homeschooling in California

Last February, a California appellate court issued a surprising decision that shook the homeschooling community across the state of California. In a previously obscure legal dispute titled In re Rachel (2008), a California appellate court ruled in a unanimous three-judge opinion that California families have no constitutional right to homeschool their children (Cloud, 2008). All children must attend a public or accredited private school, the court ruled, unless tutored by a teacher with a California teaching certificate. Under the court’s ruling, only parents who hold teaching certificates could legally homeschool their children.

An estimated 165,000 children are homeschooled in California by their parents, and most of those parents don’t have teaching certificates. Understandably, the court’s decision sparked a widespread uproar in the homeschooling community. Under the appellate court’s ruling, California parents who continued to homeschool their children could be prosecuted for violating the state’s truancy law (Egelko &Tucker, 2008). Theoretically at least, their children could be removed from their homes on the basis of neglect.

In the wake of the court’s ruling, the Home School Legal Defense Association started a petition drive to have the court’s decision “depublished” and collected 250,000 signatures in ten days. The Pacific Justice Institute entered the fight to have the decision rescinded or overturned by the California Supreme Court. One homeschooling mother vowed to resist the court’s opinion and predicted that the State of California would be forced to “reopen Alcatraz” to confine all the homeschooling families who would defy the law as the court had interpreted it (Arnoldy, 2008, p. 1).

California homeschooling families quickly found that they had allies in high places. California Governor Arnold Scharzenegger called the court’s homeschooling decision “outrageous” and vowed that elected officials would overturn the court’s ruling if a higher court failed to do so (Jacobson, 2008). California’s State Superintendent of Public Instruction, Jack O’Connell, also released a statement expressing support for California’s homeschooling families (California Department of Education, 2008). In editorials, the Los Angeles Times (March 12, 2008) and the Christian Science Monitor (March 12, 2008), among other newspapers, deplored the court’s decision. Even the Wall Street Journal (March 22, 2008) weighed in, describing the court’s decision as an example of “judicial imperialism” and suggesting that the court’s ruling could be likened to a governmental decision in East Germany.

Not everyone was dissatisfied with the decision, however. A board of directors member of the California Teachers Association stated that his organization was “happy” with the court’s ruling. “We always think students should be taught by credentialed teachers,” the CTA board member said, “no matter what the setting” (Egelko & Tucker, 2008, p. A1).

August 2008—In re Jonathan: The California Court Changes Its Mind about Homeschooling

Fortunately, common sense prevailed. Pressed from many quarters, the California court vacated its controversial ruling in late March and granted a motion for rehearing. More than a dozen organizations filed friend-of-the-court briefs in the case, expressing their respective views about the legality of homeschooling in California.

Most of these intervening parties supported the homeschoolers. For example, the California Governor’s Office, the California Department of Education, and the Seventh-Day Adventist Church State Council filed briefs siding with the homeschoolers.   The Home School Legal Defense Association argued that home schools were a species of private school and parents were legally authorized to homeschool their children under California law (Quinonez, 2008).

Only two groups, a children’s rights organization and the California Teachers Association, argued that parents should not be allowed to homeschool their children unless they had teaching certificates.  The teachers union maintained that allowing noncredentialed parents to teach their children at home would lead to “educational anarchy” (Mintz, 2008, p. 3B).

In August, 2008, in a decision restyled as In re Jonathan, the California court issued a new and drastically modified opinion, which is a model of clarity and common sense. The court made two important rulings: First, the court said that the California legislature has approved homeschooling through a series of legislative enactments that accommodate homeschooling families, even though the legislature never explicitly legislated a comprehensive homeschooling regime.  Thus, the present way that California families homeschool their children is legal and can continue. Parents do not need a teaching credential in order to teach their children in their homes. Second, the court said that the State of California has an interest in the safety and welfare of children that can override parents’ right to homeschool their children. Specifically, if the State concludes that a child is being neglected or abused by parents in the home, the parents can be required to put their children in a public school where educators can monitor the children’s well being and report suspected neglect or abuse to the state’s child welfare agency.

Homeschooling Is No Threat to Public Education

In re Jonathan, the California court’s revised opinion, is a significant case for at least three reasons. First, the court acknowledged that homeschooling is a legal option for California families who don’t wish to have their children in the public schools. Thus, the State of California can continue to permit parents to educate their children at home without imposing overly burdensome regulations.

Second, the court balanced the rights of homeschooling families against the legitimate interests of the State of California in a sensible way.  A court can order a child to attend public school if the court finds the child is being neglected or abused at home.

Third, In re Jonathan gives all of us in public education an opportunity to think about our attitudes toward homeschooling. The California Teachers Association expressed its opposition to homeschooling by parents who don’t have teaching credentials, but other public voices—including California’s governor—expressed overwhelming support for the California homeschooling community.  

Some public school constituencies disapprove of homeschooling, perhaps because they think home schooling families are hostile to public education and desire to see it weakened.  But research shows that many homeschooling families feel positively about public education and want to see the public schools strengthened and supported (Bauman, 2005).

Other public-school supporters may be hostile to homeschooling because they hold the stereotypical view that homeschooling families are right-wing religious fanatics who reject the democratic values upon which American public education was founded. But again, research shows the contrary. In fact, homeschooling families are remarkably diverse in almost every regard (Davis, 2005).  Although many homeschooling families are conservative Protestants, a growing number are Catholic; and many families decide to homeschool their children for purely secular reasons. There is no evidence that homeschooling parents are any less civic minded than the families that put their children in public schools.

And although it is true that not every child benefits from being schooled at home, a great many children not only benefit from homeschooling, but flourish both intellectually and emotionally. Homeschooling is increasingly seen as a legitimate form of education and one that can be situated in the broader context of private schooling, albeit with intensive parental involvement (Aurini & Davis, 2005).

American education is a wonderfully diverse phenomenon—encompassing public schools; secular and religious private schools; charter schools; military schools; schools that specialize in a particular theme, such as art, music, or mathematics; and homeschools. Those of us who work in public education should do all we can to strengthen the public schools and to gain public support for them. But we need not fear the families that school their children at home. Let us join in the spirit of In re Jonathan, the California court’s sensible homeschooling decision, and recognize the legitimacy and the value of homeschools.  Obviously, these schools should be regulated in a reasonable manner. Many states monitor children’s academic progress in the homeschool environment and insist on minimum levels of academic content in the homeschool curriculum. But there is no reason why the public education community and the homeschooling community cannot co-exist in harmony.  Allowing the homeschooling community to flourish will not lead to “educational anarchy.”


Arnoldy, B. (2008, March 10). Home-schoolers reel from California court blow. Christian Science Monitor, p. 1.

Aurini, J. & Davies, S. (2005). Choice without markets: homeschooling in the context of private education.

British Journal of Sociology of Education. 26, 461-474.

Bauman, K. J. (2005, February 16). One million homeschooled students. Teachers College Record. Retrieved January 3, 2009 from http://www.tcrecord.org/content.asp?contentid=11756

California Department of Education (2008, March 11). News Release #8-28, Schools Chief Jack O'Connell Issues Statement Regarding Home Schooling in California.

Cloud, R. C. (2008). Balancing parental rights and state interests in home schooling. Education Law Reporter, 235, 697-708.

Davis, R. H. (2005, May 16). Home schooling a personal choice not a movement. Teachers College Record. Retrieved January 3, 2009 from http://www.tcrecord.org/Content.asp?ContentID=11876

Editorial: A right to home school? Los Angeles Times, 12 March 2008.

Editorial: Certifying parents. (2008, March 22). Wall Street Journal. Retrieved January 3, 2009 from http://online.wsj.com/public/article/SB120614130694756089.html.

Editorial: Protection for homeschooling (2008, March 12). Christian Science Monitor, p. 8.

Egelko, B., & Tucker, J. (March 7, 2008). Homeschoolers' setback sends shock waves through state. San Francisco Chronicle, p. A1.

In re Jonathan L., 81 Cal.Rptr.3d 571 (Cal. Ct. App. 2008).

In re Rachel L., 73 Cal.Rptr.3d 77 (Cal. Ct. App. 2008), vacated.

Jacobson, L. (2008, March 18). Home-School Advocates Push to Blunt, Reverse California Ruling.   

Education Week.

Kuntzman, R. (2008). Homeschooling and the law. In K. Lane, M. A. Gooden, J. F. Mead, P. Pauken, & S. Eckes (eds) The Principal’s legal handbook. Dayton, OH: Education Law Association.

Mintz, H. (2008, June 23). Home-schooling in court. San Jose Mercury News, p. 3B.

Quinonez, S. (2008,November/December). Why California homeschools must remain private schools. Homeschool Report, 24(6). Retrieved January 3, 2009 from http://www.hslda.org/courtreport/V24N6/V24N606.asp.

Cite This Article as: Teachers College Record, Date Published: January 08, 2009
https://www.tcrecord.org ID Number: 15478, Date Accessed: 1/23/2022 4:00:19 PM

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About the Author
  • Richard Fossey
    University of North Texas
    E-mail Author
    RICHARD FOSSEY is a Professor and Senior Policy Researcher at the Center for the Study of Education Reform in the College of Education at the University of North Texas.
  • Michael Sayler
    University of North Texas
    MICHAEL SAYLER is Associate Dean for Academic Affairs and Research in the College of Education at the University of North Texas.
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