JONATHAN L v. The SUPERIOR COURT of Los Angeles County
| Citation | 81 Cal.Rptr.3d 571,165 Cal.App.4th 1074 |
| Decision Date | 08 August 2008 |
| Docket Number | No. B192878.,B192878. |
| Parties | JONATHAN L. et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Los Angeles County Department of Children and Family Services et al., Real Parties in Interest. |
| Court | California Court of Appeals |
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Children's Law Center of Los Angeles, Cameryn Schmidt, Christine Caldwell, Patricia G. Bell and Diana Rodriguez; and Lori A. Fields, for Petitioners, Jonathan L. and Mary Grace L.
Aida Aslanian, Glendale, for Real Party in Interest, Mother, Mary L.
United States Justice Foundation, Gary G. Kreep, Escondido; Alliance Defense Fund, Timothy D. Chandler, Folsom, and Jeffrey A. Shafer, Cincinnati, OH; and Christopher Blake, for Real Party in Interest, Father, Phillip L.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Larry Cory, Assistant County Counsel and Judith A. Luby, Deputy County Counsel, for Real Party in Interest, Los Angeles County Department of Children and Family Services.
No appearance for Respondent.
Pacific Justice Institute, Kevin T. Snider, Sacramento, Brad W. Dacus, Karen D. Milam and Matthew B. McReynolds, for Sunland Christian School as Amicus Curiae.
Pacific Legal Foundation, Sharon L. Browne and Damien M. Schiff, Bellevue, VA, for Pacific Legal Foundation, Kent Hayes and Anne Hayes as Amici Curiae.
American Center for Law & Justice, Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, and Walter M. Weber, Washington, DC, for American Center for Law & Justice as Amicus Curiae.
Western Center for Law & Policy, Dean R. Broyles and James M. Griffiths, for Western Center for Law & Policy as Amicus Curiae.
American Civil Rights Union, Richard D. Thorn, for American Civil Rights Union as Amicus Curiae.
Jason R. Craddock, Sauk Village, IL, for Christian Leaders as Amicus Curiae.
Dickenson, Peatman & Fogarty, Matt Eisenberg, Napa, for Jewish Homeschoolers of Napa and Sonoma Counties as Amicus Curiae.
Baker & McKenzie, Tod L. Gamlen, Gerald M. Salcido, George Kimball, Stefan R. Spich and Erik C. Mazza, San Diego, for California Homeschool Network as Amicus Curiae.
Wilson Sonsini Goodrich & Rosati, Douglas J. Clark, Diane M. Walters, Benjamin M. Crosson and Crystal M. Gaudette, Palo Alto, for Homeschool Association of California as Amicus Curiae.
Munger, Tolles & Olson, Kristin L. Myles, James C. Rutten and Victoria L. Boesch, San Francisco, for Christian Home Educators Association of California as Amicus Curiae.
Bingham McCutchen, John Reese, Thomas S. Hixson and Tanya K. Dumas, San Francisco, for Gifted Homeschoolers Forum as Amicus Curiae.
Morrison & Foerster, Sean P. Gates, for Grace Christian Academy as Amicus Curiae.
GCA Law Partners, Deborah R. Schwarzer, Mountain View, for Arbor Academy, Beach High School, Excellence In Education, AtoZ Home's Cool, Homefires-Journal of Homeschooling Online, and Northern California African American Homeschooler's Association as Amici Curiae.
Home School Legal Defense Association, J. Michael Smith, Darren A. Jones and Michael P. Farris, Purcellville, VA, for Home School Legal Defense Association, Focus on the Family and Private and Home Educators of California as Amici Curiae.
Center for Constitutional Jurisprudence, John C. Eastman, Sacramento, and David L. Llewellyn, Jr., Citrus Heights; and Erwin Chemerinsky, Durham, NC, for Center for Constitutional Jurisprudence as Amicus Curiae.
Freedom Law Group, Nicholas P. Miller and Alan J. Reinach, for Seventh-Day Adventist Church State Council as Amicus Curiae.
Goodwin Procter, Brooks R. Brown, Michelle Gonnam, Boston, MA, and John Affeldt, for Public Advocates, Inc. as Amicus Curiae.
National Legal Foundation, Brian R. Chavez-Ochoa, Valley Springs, for National Legal Foundation as Amicus Curiae.
Daniel E. Witte, Salt Lake City, UT, for Sutherland Institute as Amicus Curiae.
Priscilla S. Winslow, Burlingame, for California Teachers Association as Amicus Curiae.
Liberty Counsel, Mary E. McAlister, Mathew D. Staver, Anita L. Staver, Orlando, FL, and Sarah E. Seitz, for Members of U.S. Congress as Amici Curiae.
Edmund G. Brown Jr., Attorney General, Douglas M. Press, Senior Assistant Attorney General, Karin S. Schwartz and Gregory D. Brown, Deputy Attorneys General, for the Governor of the State of California and the Attorney General of the State of California as Amici Curiae.
Marsha A. Bedwell, Sacramento, Amy B. Holloway and Michael E. Hersher, Sacramento, for Superintendent of Public Instruction and the California Department of Education as Amici Curiae.
Jess Womack, Rochelle J. Montgomery and Kelly R. Barnes; Fagen Friedman & Fulfrost, Howard Friedman, Los Angeles, and Emilia C. Huntley, for Los Angeles Unified School District as Amicus Curiae.
In this dependency case, we consider the legality of, and restraints upon, home schooling in California. 1 We will conclude that: (1) California statutes permit home schooling as a species of private school education; and (2) the statutory permission to home school may constitutionally be overridden in order to protect the safety of a child who has been declared dependent.
As indicated, these issues arise in the course of a dependency proceeding. The family in this case had a history of dependency court proceedings involving charges of physical abuse, neglect, and failure to prevent sexual abuse. After the two youngest children were declared dependent due to the abuse and neglect of their siblings, their attorney sought an order that they be sent to private or public school, rather than educated at home by their mother, so that they would be in regular contact with mandatory reporters of abuse and neglect. 2 The dependency court declined to issue such an order, primarily based on its view that parents have an absolute constitutional right to home school their children.
The children's counsel sought relief in this court by a petition for an extraordinary writ. We filed our original opinion on February 28, 2008, granting the petition on the bases that: (1) California statutory law does not permit home schooling; and (2) this prohibition does not violate the United States Constitution. We subsequently granted the father's petition for rehearing on March 25, 2008, in order to provide an opportunity for further argument on the multiple complex issues involved in this case, including, but not limited to: (1) additional California statutes that might bear upon the issue; and (2) potentially applicable provisions of the California Constitution. We also invited a number of governmental and private parties to submit amicus curiae briefs. 3
It is important to recognize that it is not for us to consider, as a matter of policy, whether home schooling should be permitted in California. That job is for the Legislature. It is not the duty of the courts to make the law; we endeavor to interpret it. (Cf. In re Marriage Cases (2008) 43 Cal.4th 757, 780, 76 Cal.Rptr.3d 683, 183 P.3d 384.)
Our first task, interpreting the law of California, is made more difficult in this case by legislative inaction. As we will discuss at length below, home schooling was initially expressly permitted in California, when the compulsory education law was enacted in 1903. In 1929, however, home schooling was amended out of the law, and children who were not educated in public or private schools could be taught privately only by a credentialed tutor. Case law in 1953 and 1961 confirmed this interpretation, and specifically concluded that a home school could not be considered a private school. While the Legislature could have amended the statutes in response to these cases, to expressly provide that a home school could be a private school, it did not do so.
Thus, as of that time, given the history of the statutes and the Legislature's implied concurrence in the case law interpreting them, the conclusion that home schooling was not permitted in California would seem to follow. However, subsequent developments in the law call this conclusion into question. Although the Legislature did not amend the statutory scheme so as to expressly permit home schooling, more recent enactments demonstrate an apparent acceptance by the Legislature of the proposition that home schooling is taking place in California, with home schools allowed as private schools. Recent statutes indicate that the Legislature is aware that some parents in California home school their children by declaring their homes to be private schools. Moreover, several statutory enactments indicate a legislative approval of home schooling, by exempting home schools from requirements otherwise applicable to private schools.
We are therefore confronted with: (1) compulsory education statutes, which were apparently intended to eliminate the permission previously granted to home school; and (2) later enactments, which reflect the Legislature's understanding that the compulsory education statutes permit home schooling, as a species of private school education. Under these circumstances, it is our view that the proper course of action is to interpret the earlier statutes in light of the later ones, and to recognize, as controlling, the Legislature's apparent acceptance of the proposition that home schools are permissible in California when conducted as private schools.
This conclusion, however, does not resolve all of the issues before us. California statutes also permit a dependency court to issue any reasonable orders for the care of a dependent child, including orders limiting the right of the parents to make educational decisions for the child. Because the United States Supreme Court has held that parents possess a constitutional right to direct the education of their children, it is argued that any restriction on home schooling is a violation of this constitutional right. We disagree. We conclude that an order requiring...
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