This post reviews Paul A. Alarcón, “Recognizing and Regulating Home Schooling in California: Balancing Parental and State Interests in Education” in Chapman Law Review, 13 (2010): 391-416.
Alarcón, about whom I was unable to find any information on the web, here presents a summary of the recent In re Rachel L. and Jonathan L. decisions in California and an argument that the California legislature should pass new legislation that explicitly gives parents a right to homeschool but requires that they submit annual notification of intent to homeschool and annual standardized test scores.
Alarcón begins with a history of the decisions. Readers will likely vividly recall the uproar that followed a California court of appeals’ finding that homeschooling was not legal according to the California constitution. The judge’s decision was literally correct in that the only relevant court cases, People v. Turner in 1953 and in re Shinn (1961) had rejected the argument that homeschooling counts as a plausible means of private schooling.
But after the nationwide outcry Judge Croskey depublished the ruling and reheard the case. The second time he found homeschooling to be legitimate, not because any legal ruling had superceded Turner and Shinn but because the California legislature had for a long time “acted as though home schooling is, in fact, permitted in California.”
This legislative and legal limbo did not sit well with Judge Croskey, nor does it sit well with Alarcón. He proposes that California needs a new law to clarify its approach to homeschooling. But what should be in it? How should California properly balance Government’s interest in ensuring that all California children receive an education with parental interests in being free of government oversight of how they educate their children? As Alarcón puts it,
what limitations, if any, should be adopted, which guarantee that each and every home schooled child receives an adequate education, but which do not unconstitutionally impose upon the parental interest. (p. 395)
Alarcón begins his answer with a brief overview of the history of compulsory education and the rise of homeschooling. He then explains how this history has led to a conflict between State and parent over who has authority over children’s educations. Alarcón explains how the 14th amendment’s due process clause has been interpreted by the Supreme Court to include a “right to privacy” that gives parents a “fundamental right to make decisions concerning the care, custody, and control of” their children. (p. 400)
At the same time, however, the Court has also found that states have a compelling interest in ensuring that their citizens are educated for civic and economic participation. The state has the right to make sure that its citizens acquire “a basic competency in those core subjects necessary for independent functioning in the democratic society of America.” (p. 404)
Alarcón next lays out his proposal. He wants California to pass a homeschooling law like most other states have done. This will end the possibility of future judicial decisions like In re Rachel L. and put to rest fears that homeschooling might be forbidden in California. It will also simplify and streamline the patchwork of legislation currently besetting California on this topic.
But what should the new law say? Alarcón looks at what other states have and determines that two requirements make sense. First, requiring homeschooling parents to file an annual affidavit of intent would distinguish homeschooling from truancy and is already required under the current “private school” exemption. Second, annual testing in core subjects would ensure that the state’s interest in obtaining an educated citizenry is being met. He also considers and rejects parental educational requirements and required home visits.
And that’s it. My apologies to my regular readers if this blog is sounding redundant. This article is just one more in a whole slew of recent legal opinion pieces that cover the same basic ground. I don’t have anything to say about it that I didn’t say in earlier entries. This one wasn’t as bad as some of the others I’ve reviewed in the last few weeks, but it wasn’t as good as the one by Timothy Waddell I reviewed in July. If you read through the comments posted on Waddell’s piece you’ll find that many of my readers were not at all happy with my endorsement of the notion that homeschoolers should not fear outside scrutiny. In earlier posts covering this same topic I’ve also come out against ANNUAL testing, as to me it would force too much structure on homeschoolers. In my view a single test around age 11 or 12 would suffice to ensure that the children in question can read and do basic math. I would be more open to annual health check-ups such as is required of public and private schooled children. This would I think be a better way to catch cases of abuse or neglect and to deal with the vaccination issue we’ve mentioned in several previous posts.
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Does Alarcon at any point address the fact that the public schools do not “guarantee that each and every public schooled child receives an adequate education”? Google illiteracy, innumeracy, bullying, abuse and neglect to see how often they appear in public schools. I’ve no confidence that any of the proposals to regulate homeschoolers will lessen any evil but they will create largely pointless requirements and burdens.
I’m unaware of annual health checkups required for school children. That’s chilling, if true. Have I just been out of the public school loop for too long? The only annual health checkups I know about in my state are for high school age student athletes. I am going to have to look into this further.
And have you figured out what to do with the problem of testing 11 – 12 year old unschoolers and relaxed/eclectic homeschoolers, and how much interference this would cause for kids? I’m loving seeing my eighth grader pick up on a ton of basic math literacy this summer – when he has mastered decimals and percentages in a few short painless weeks – (not even in conjunction with the school year!) – but had you tested him at 11 I guess he would have been institutionalized in government school, and/or I would have been sent to jail. Now exactly how is that going to help anything?
I’d say from an unschooling point of view, testing 11 – 12 year olds would be about the WORST time. My five year old didn’t look that different from other five year olds (knew colors, letters, songs, right and left, counting, skip counting, etc.) and my 13 year old has just once again demonstrated the “episodic learning” that is so hugely huge among older unschoolers who have had rich exposure — and right at this moment, that would make HIM look closer to other 13 year olds (and probably ahead of those who were “drill and killed” on, say, fractions, until they gave up). But at 11, though he could have told you the story of Beowulf, modded your computer, described Starry Night, and created an electrical circuit board – he’d have looked pretty far off the curve if you’d tested him in basic math beyond simple operations. You keep SAYING this, and I keep saying THIS, but I never hear how you’d address this. Which is an even bigger problem for, say, my friend whose kids are impacted by learning disabilities. That’s WHY she chooses to homeschool, but they’d never pass such “basic tests” – just like the school kids in their shoes could not. How in the world would such exceptions get administrated?
Spitting in the wind. It would all be spitting in the wind. The state fails to guarantee that public school children receive adequate education, and that doesn’t stop them from pathologizing the children in its care. I certainly can’t allow them amidst my family to do the same thing to my children.
So frustrating.
Win,
1. It’s not chilling to require health screenings. It’s common sense. Earlier this year the many children of a homeschooling family at my church, which on principle had not had their kids vaccinated, all got whooping cough. It was several weeks before this family recognized what it was. During those weeks the children were mingling with the rest of the congregation, which included several infants and very old people. Thankfully no one was infected, but one family’s principled stand for their own medical freedom could easily have led to dire consequences for others in our parish.
That’s why public schools require doctor visits. Herd immunity it’s called. I looked real quick online for something that illustrates the sort of thing many districts require and found this little article from a Nebraska newspaper: http://journalstar.com/lifestyles/family/article_c953cd1c-a982-11df-b88d-001cc4c002e0.html
2. I hear you on unschoolers’ special situation in regard to age-appropriate testing. Perhaps a good solution that doesn’t sacrifice the State’s responsibility to ensure basic education for all citizens would be to offer a two-track system. Homeschooling parents could take the traditional track and be responsible for something like what I outlined above–submission of some commonly-accepted normed test of basic literacy and numeracy by age 12–or they could take the somewhat more laborious alternative track, which would be to provide some sort of alternative assessment package–like a portfolio or something–that demonstrates that the children are not just playing truant but are actually engaged in legitimate learning. I know you just want everyone to leave you alone completely, but the whole point of all of these articles by these legal scholars is that if the state were to do that it would be shirking its Constitutional responsibility to provide equal protection under the law to all citizens and to ensure the general welfare of the population. I’m looking for a way that enables the State to meet its obligations while at the same time giving people like you the freedom to follow out-of-the-box pedagogical strategies.
I always find it interesting when folks outside California try and tell us how to handle our schools (which are largely failing, as I’m sure you know). I have some thoughts on this:
1. Most CA homeschoolers are under the oversight of either a public charter school or a private school satellite program. This means that any new laws would NOT impact them at all, only cost our (practically bankrupt) state millions of enforcement dollars. When they are under the oversight of these programs, they are choosing to have regular reporting periods and/or testing.
2. Those (like my family) who choose to begin their own private school (and there has never been a law in CA saying who may and may not found a private school as far as I’m aware, only that nonrelated adults must pass a background check before interaction with children) are subject to ALL of the laws currently considered sufficient to govern private schools. This means that we must file the annual affidavit in October, offer the seven branches of study as prescribed by the state in grades 1-6, and more in grades 7-12, do a minimum of 200 minutes of PE every 10 days, be “able to teach,” offer instruction in English, and the list goes on. Like all private schools, I keep numerous files (school, CUM, medical, etc.), all of which are subject to inspection should there be a complain against us.
3. Considering the utter failure of standardized testing to increase the educational level of the populace, I fail to see how it’d be helpful to those of us who, free from such testing, also feel more free to do our jobs. As someone who passed standardized tests with flying colors as a child and young adult, I can only say that they are NOT a measure of education, but rather of one’s ability to jump through hoops intelligently. It was only when I began homeschooling that I realized that I was not at all educated in any meaningful way. CA public schools were mostly a joke even when I was a child.
4. Parents of children in public schools here have the right to opt out of standardized testing if they wish to do so.
5. Vaccination is only suggested, not required by our state laws. Waiver forms are readily available (one for all vaccines and a separate one for the new TDaP regulations) and those who do not wish to vaccinate within the public schools do not have to do so.
6. The public schools here do not require annual medical checks, and I don’t see how a physical would have protected your congregation from someone bringing sick children to a worship service. It seems to me to be common decency to keep home coughing, feverish children, regardless of whether or no they are vaccinated. Every person I have ever met who has had whooping cough was vaccinated, so even vaccinated people need to stay home when they are ill.
Our state has bigger problems to take care of here considering that not only our state but almost every county is headed for bankruptcy. Considering that we are the fifth largest economy in the world, this is no laughing matter. I think homeschoolers who overwhelmingly wish to teach their children in peace ought to be left alone. The state requires plenty already.
Milton,
I understand what you are saying, and actually, as an unschooler swimming with some non-vaxers, I actually see to it that my kids’ vax are very up-to-date, since I know we are among those who conscientiously object. While you see required health screenings as providing this same kind of protection, I see them as requiring whatever the government wants to require – that’s the chilling part.
I’m not against educating people about the herd protection of vaccinations, but I am against the government being involved in my decisions about my children’s health care. If kids are compelled to attend school and thus compelled to participate in government required health screenings, that is two-to-many compulsions for me.
I’m pretty sure that the “second track” of providing a portfolio to government authorities would not convince them that my late reading, late mathing kids were ok. Think about the standards movement, Milton. They aren’t looking for kids to develop in the quirky lovely ways mine and my unschooling friends’ kids have developed. Those who aren’t meeting standards at timely benchmarks are deemed to be failures and are remediated.
I had one kid who practiced music for about 7 hours a day for 18 months and did little else that could remotely be considered educational, other than take walks and play sports, which frankly aren’t that academically impressive. I don’t know a school administrator anywhere who would think this was appropriate, and yet, it has so clearly been the right thing for this child, who attained an unusual level of musical proficiency in a compressed period of time and who has been blessed in every area of his life because of this opportunity. But it took all his time, all his mental and emotional energy. It was a huge, huge thing, that put him well on his way to his 10,000 hours toward expertise (see Gladwell), and he eventually recovered his academics – and of course excelled in them partly because of the confidence he attained – not to mention the brain exercise the music gave him – due to his musical focus.
Convincing an administrator to see this with me, this picture of my child over the long term rather than at some arbitrary benchmark moment, is not something that I think is consistently realistic. Standards create curricula (and minimal standards create the worse curricula of all!) and rob family-based learners of the freedom to learn. If you give homeschoolers minimum requirements, you’ve just imposed a curriculum.
eek – WORST curricula of all.
What if the state best meets its “Constitutional responsibility to provide equal protection under the law to all citizens and to ensure the general welfare of the population” by allowing children to develop as individuals, in the families to which they’ve been born?
I recognize that this is not likely to gain ground, since the bias is toward a presumption that government intervention and testing equals protection. However, sometimes it is hard not to feel like the only sane person in the room when one looks at results of the public schools and hears proposals that those in charge of public schools should be given more latitude in “protecting” children learning at home. It just does not follow.
But people want authorities to have power over others, you know, just in CASE. The bias toward “authority” is very sneaky – people don’t realize it when they have this bias. They think “for their own good” is rational and gentle, without giving equal consideration to its manipulative power to enforce conformity, including so much of the negative conformity that is pathological in our own schools, both academically and socially.
I do appreciate your giving thought to allowing for portfolio evaluations. By the way, some higher reg states that formerly allowed portfoliio evals have stopped doing so because of the time required by administrators. And portfolio evaluations do not do away with the problem of having those who are not part of the family in a position over those who are more directly responsible and knowledgeable about the children (the parents), nor do they solve the problem of administrators seeking to use standardized benchmarks to evaluate children whose parents have absolutely no inclination to approach learning in a standards-based way.
The problem is that people have come to believe the government’s ability to insure “equal protection” through regulation of the educational process, despite massive evidence to the contrary. It “feels” like the right thing – surely it would be a way to protect the few children who could fall through the cracks, so the rest of us should not mind, even if it does jeopardize the other 99%’s ability to do things in ways that work best for our kids.