Record: María J. Valero Estarellas, “The Long Way Home: Recent Developments in the Spanish Case Law on Home Education” in Oxford Journal of Law and Religion (2013): 1-25. [Available here].
Summary: Estarellas, a professor at Centro Universitario Villanueva, Universidad Complutense de Madrid, here summarizes recent case law pertaining to home education in Spain. In 2010 the Spanish Constitutional Court handed down a major decision that is having a transformative impact on home education cases around the country.
Estarellas begins by explaining that growing dissatisfaction with the politicized nature of Spanish education, along with objections to bad quality schools, bullying, and other problems, had led a growing number of Spanish families to opt out of the school systems (“systems” because Spanish education is highly decentralized). Estarellas estimates that around 2000 families are likely teaching their children at home in Spain today.
As Spanish law does not formally recognize home education, these families frequently are taken to court in the various autonomous regions of Spain due to their removal of children from the region’s compulsory school school system. Prior to 2010 these cases were decided on an ad hoc basis by local jurisdictions. The clear trend was to find that the parents were not guilty of child abuse or any other crime. Beyond that, however, local courts typically feared to tread, as the constitutional implications of home education were unclear.
Estarellas explains that Spanish law is bound both by the Spanish Constitution and by several broader United Nations declarations, which have their own European Court interpretations. The European Courts have generally found that the 1948 Universal Declaration of Human Rights and the 1950 European Convention on Human Rights, as well as several other policy statements, while recognizing parental rights to choose the education their children will receive, do not require that countries include home education as one of the options parents might choose.
The Spanish Constitution acknowledges that children have a right to education and that freedom of education exists for parents and other entities from undue coercion by the state. Article 27.1 of the Constitution explicitly recognizes parental freedom to choose an education according to their convictions. Article 27.3 adds that parents have a right for their moral and religious convictions to be respected in their children’s education. But the application of these provisions to home education was unclear until 2010 when the Spanish Constitutional Court finally ruled on the matter.
The Constitutional Court determined that while home education might be theoretically permissible should a region of Spain create a statutory regulation for it, there is no a priori constitutional right to home education. To reach that decision the Court crafted a very narrow definition of parental rights and a very wide definition of the virtue and efficiency of compulsory schooling.
After laying out the groundwork that led to the 2010 decision Estarellas provides a few examples of more recent local court cases that have used this Constitutional Court decision to clamp down harder on home educating families than pre 2010 case law had done. She also provides a strong and carefully constructed critique of the Constitutional Court’s ruling.
Estarellas complains that the Spanish high court failed in its decision to make a distinction between education and schooling, assuming that when the Spanish Constitution speaks of a child’s right to education it must mean by that education in a formal school. Such an assumption of course prohibits home education by definition rather than by argument.
Furthermore, when the Court did take up the arguments of home educators it did so in a very naive manner, assuming the worst of home schools (that they would not allow students to interact with the diversity of Spanish society) and assuming the best of compulsory schools (that they are run efficiently and that students in them do encounter the pluralism necessary for modern citizenship). Esterallas summarizes, “the Constitutional Court seems to have no qualms about restricting fundamental rights of conscience through a simplistic application of the principle of proportionality that stems from a seemingly biased approach to home education.” (p. 21)
Regardless, this wrong-headed decision has had a chilling effect on home education in Spain. What then can be done? Statutory reform. Spain needs laws that try to strike a balance between the “least possible restriction” on parental freedom of conscience and a “maximum guarantee” of the rights of children to an education in accord with the parameters established in the Spanish constitution. Estarellas has no doubt that such legislation could be crafted that would both allow for home education and regulate it to ensure that children experiencing it are receiving adequate education.
Appraisal: I thoroughly enjoyed reading this article. Estarellas did a marvelous job making clear the history of Spanish law and jurisprudence such that a person with no prior background could easily follow along. Though it is clear where she stands on the topic, her treatment is far more than an opinion piece or an editorial. A scholar with a different point of view would I think still find her summaries of International and Spanish case law helpful and fair.
Whether the Spanish legislatures will provide relief for Spanish home educators whose hopes for a constitutional victory have been dashed I cannot say. In the United States that is precisely what happened. It has usually been the legislatures, not the courts, that have created the permissive atmosphere home educators enjoy in the United States. But then the United States has far more than 2000 families who homeschool. Absent a bigger, more organized movement, I wonder how much legislative change will be possible.
Milton Gaither, Messiah College