Conservative Judicial Activism: the Homeschooling Edition

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In a recent case, the California Supreme Court affirmed a 1955 law that requires teachers to have proper credentials, even if they're homeschooling their own children. Some conservatives are up in arms. But it's important for conservatives to locate their criticism properly.

As far as I can tell, this was a judicially conservative decision. The law in California is that teaching requires certain qualifications. The only question was whether you can find a right in the Constitution to homeschooling, and they concluded not, which is actually a more judicially conservative position. See Eugene Volokh for more details.

Now I'm open to a judicially conservative argument that this case was wrongly decided, but I've been seeing people upset merely because of its being a bad policy decision. Well, don't complain to the court. Complain to the people who wrote the law to begin with (except they're probably dead), and seek to get the law changed. That's the normal process for this kind of thing, and it's not conservative to expect a court to find new rights in the Constitution that conservatives would prefer to have constitutionally guaranteed. This is a case of conservatives expecting judges to enact their policy preferences, which is the very thing conservatives usually complain about and call judicial activism when they see liberals doing the same thing.


I agree that this was a judicially conservative decision and that any disagreement with the law needs to be taken up at the legislative level. Actually, the decision did not restrict homeschooling to those who have the proper credentials. Under California law, there are two options to public school: tutoring by a credentialed teacher, or private school. Private schools do not have to have credentialed teachers. The most common legal form of home schooling is to register as a private school, teach the core subjects, and maintain an attendance record. The case in question involved parents who had registered their children in a private school before homeschooling them anyway. Because they had neglected to register as a private school, they were in violation of the state requirements.

The court did reference People v. Turner (1953) and agreed that homeschooling did not fall under the private school provision. [Their reasoning was that the provision of tutoring would have been superfluous if the legislature had intended homeschooling under a different section. I wonder if this isn't just a bit anachronistic. Homeschooling wasn't nearly as popular when the law was written and, I suspect that the lawmakers simply weren't thinking about it.] In neither situation, however, did the cases have to do with homeschools as private schools. Consequently, that specific opinion wasn't actually a part of the binding decision. It was effectively ignored in Turner, and there's little reason why this couldn't happen again. Even so, I do think the law needs to be adjusted. If there is ever a case that does involve registering a homeschool as a private school, this line of thinking by the courts could overturn the practice.

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