California Amicus Brief Examines the Evidence
Court Report editor’s note: Although the Court Report spells homeschooling as a closed compound, these excerpts retain the hyphenated format used in the amicus brief and in Court of Appeal documents.
Home School Legal Defense Association writes many briefs concerning religious freedom, the rights of parents, and the appropriate interpretation of state laws dealing with homeschooling. In the current case up for rehearing before the California Court of Appeal for the Second Appellate District, In re Rachel L., we helped the father’s attorneys construct these traditional arguments in his brief. (For more background, see “Rude Awakening: Court Ruling Alarms Homeschool Community” in the May/June 2008 Court Report.)
© 2007 / National Geographic Society
Keeping homeschooling on the map: The 2007 National Geographic Bee winner, homeschooler Caitlin Snaring, receives a $25,000 scholarship.
In a second brief written as a friend of the court on behalf of HSLDA’s 15,000 member families in California, Focus on the Family, and Private and Home Educators of California, Michael Farris headed up HSLDA’s litigation team in crafting educationally oriented arguments to demonstrate that homeschooling is academically successful and should be encouraged rather than banned in California. Because the California Constitution mandates that the legislature “encourage” all education that cultivates the knowledge and intelligence necessary to maintain freedom, our amicus brief dwelt on the practical results of homeschooling.
Apart from the fundamental parental right to direct a child’s education, homeschooling can be defended because it has been proven to work. Our amicus brief proves to the California Court of Appeal what homeschooling parents have been telling their neighbors for decades: homeschooling produces intelligent and successful students.
On March 25, 2008, the California Court of Appeal for the Second Apellate District granted the L. family’s petition for rehearing. Here are some highlights of HSLDA’s amicus brief.
In its rehearing order, this Court requested input on several areas of law:
* Court Report editor’s note: The L. children were enrolled in Sunland Christian School, an accredited California private school offering homeschool, independent study, correspondence homeschool, and online homeschool to families throughout the United States.
(1) Do California statutes permit home-schooling by the means used by Sunland;* that is, by enrolling the children in a private school which apparently exists only to enable the parents to home-school their children via independent study?
(2) Do California statutes otherwise permit home-schooling, by means of parents creating their own home-based private schools and, if so, upon what conditions?
(3) In light of the answers to the above questions, does the California legislative scheme violate the U.S. Constitution, with respect to the free exercise of religions and parental control rights of parents who desire to home-school their children?1
In Sections I and II of this brief, Amici address the court’s questions regarding the legality of home-schooling under current California law
. [and] the constitutional mandate for the state to encourage all suitable means of education [which] extends to public schools, private schools, and non-credentialed parents teaching their children in in-home private schools
In Sections III and IV of this brief, Amici address the constitutional question posed by this Court. Amici argue that it would violate the due process rights of parents protected by the United States Constitution to require home-school parents to be certified, since there is no evidence that teacher certification is necessary to academic success in home-schooling. Professional studies demonstrate that home-school students exceed public school students’ academic achievement whether or not their parents are certified teachers. In fact, research in the past decade shows that it is seriously questionable whether teacher certification bears any relation at all to academic achievement, whether in the home or in public schools.
Thus, amici argue that this Court should adopt the current interpretation and application of California’s compulsory education laws—as evidenced by the website of the California Department of Education2—which permits home-schooling under the private school statutes. This fully satisfies the state’s interest in the “general diffusion of knowledge and intelligence.” Any other result would be unconstitutional.
© Mark Bowen / Scripps National Spelling Bee
Homeschooling spells success for 2007 Scripps Howard National Spelling Bee winner Evan O’Dorney, a California homeschooler.
I. The California Constitutional Mandate Requires the Legislature to “Encourage” “All Suitable Means” of Education Which Lead to a “General Diffusion of Knowledge”
This Court’s prior decision in In re Rachel L., 73 Cal.Rptr.3d 77, 86 (Cal.App.2.Dist. 2008), rehearing granted (Mar. 25, 2008), begins its discussion with Article IX, section 1 of the California Constitution. It is important to carefully analyze the words of this section
. This section provides:
A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.
All education laws in California should have as their ultimate goal “a general diffusion of knowledge and intelligence.” The cases relied upon by this Court in its initial opinion proceeded on the unproven assertion that efficient government regulation was essential to accomplish this goal. In short, “regulatory efficiency” rather than “educational suitability” was the criterion employed by these forty- and fifty-year-old opinions.
This approach has two fatal flaws:
(1) It ignores the mandate of the California Constitution
to allow all suitable means of intellectual improvement which lead to “a general diffusion of knowledge and
(2) The assumption that government supervision of education is essential to achieve adequate knowledge and intelligence is demonstrably false, and thus, fails any test of constitutional analysis—whether mere reasonableness or strict judicial scrutiny.
II. Home-schooling Leads to a General Diffusion of Knowledge and Intelligence and Thus California Law Must be Construed to Allow This Means of Education
Turner and Shinn can easily be shown to have failed to correctly analyze the constitutional scheme required in California. Both cases flatly stated that it did not matter whether home-schooling was academically successful. Shinn, 195 Cal.App.2d at 694; Turner, 121 Cal.App.2d Supp. at 868-869. The state’s interest was in the ease of regulation. Shinn, 195 Cal.App.2d at 694; Turner, 121 Cal.App.2d Supp. at 868-869. Home-schooling could be entirely banned for the simple reason that it was inefficient for the government to regulate the facilities and teaching ability of each home-school teacher.
The California Constitution forbids this form of analysis. It specifically mandates that “all suitable means” of achieving “a general diffusion of knowledge and intelligence” should be “encouraged.” Therefore, it is axiomatic that if the legislature banned a means of education that is clearly suitable for achieving knowledge and intelligence, it would have failed to adhere to its constitutional mandate.
© Isabelle Lyman
In 2007, homeschooled quarterback Tim Tebow became the first sophomore to win the Heisman Trophy.
If home-schooling is clearly suitable for a general diffusion
of knowledge and intelligence, then the legislature has a constitutional duty to encourage it, not ban it
. California’s Constitution mandates broad choices. All paths that lead to success are to be encouraged in California.
To say it in more modern educational language, the California Constitution has a child-centered mandate. The decisions of Turner and Shinn have an institution-centered mandate. The presumption that a certain kind of institution or efficient government regulation is essential for children smacks of an ancient paternalistic statism that simply cannot be sustained in light of modern educational theory or practice—or just plain common sense.
As we will demonstrate below, home-schooling is far more effective at achieving the real goals of the California Constitution—knowledge and intelligence—than public schooling. The duty of this Court is to interpret the statutes of California with the assumption that the legislature wanted to encourage, not ban, all suitable means of educational advancement
[Home-schooling’s] record of achievement is truly profound. Home-schooling is the most important educational innovation in the last 100 years. It has found a way to achieve success for all students from all walks of life and from every segment of society. The egalitarianism that was hoped for from public education has finally been achieved in home-schooling. Educational success is truly available for all in home-schooling.
The writers of the Constitution of California would be astonished to learn that a form of education that is this successful might be outlawed by a judicial decision. The mandate is to promote all suitable means of achieving educational success. Home-schooling is safe when this is the standard.
Home-school success has been demonstrated by a number of other popular indicators of success. California’s youngest college student, 10-year-old genius Moshe Kai Cavalin, was home-schooled from age 6 through 8, after which his parents decided college was the best place for him.18
Another indication of the success of home-schooling comes from the national spelling and geography bees. Just last year, the winner of the Scripps Howard National Spelling Bee was Evan O’Dorney, a home-schooled student from California.19 Of the competitors who made it to the national level, 12.5 percent of them were home-schooled, and home-schoolers took three of the top six slots. 30
According to this Court’s prior ruling, as well as Turner and Shinn, California does not ban home-schooling—it simply limits home-schooling to those parents who possess a teaching credential from the state that would qualify them to teach in the public schools. Whether this was properly decided in the 1950s and 1960s is a moot point. Since 1971, the Supreme Court of the United States has made it clear that rules that limit jobs or other opportunities to those who pass a test, have a certain degree, or possess a credential of some sort must pass muster under the concept of “content validity.”
If this legal principle is indeed applicable to this current case, before California can limit the opportunity to home-school to those possessing a valid teacher’s credential, it must demonstrate that this diploma-related requirement is “a demonstrably reasonable measure of job performance” for home-schooling teachers
The Supreme Court of South Carolina in Lawrence v. South Carolina State Bd. of Education, 412 S.E.2d 394 (S.C.), has already applied this concept of “content validity” to invalidate a requirement that home-school teachers in that state pass a test intended for admission to college programs of teacher education
© PHC / Michael Cope
Success in another court: The moot court team from Patrick Henry College, whose student body comprises over 80% homeschooled graduates, has won more national championship trophies than any other college in America for the last six years.
There have been dozens of cases which have held that testing, licensure, and diploma requirements violate the standard of reasonableness where there was no “job analysis” performed before assessing the validity of such a requirement
A “job analysis” is a common sense process that seeks to determine what skills and knowledge are needed for success in a particular job. In this context, as the Supreme Court of South Carolina phrased it, there would have to be a determination of “the prerequisites for home-schooling” to be successful. This would require careful study of home education to learn what it takes to be successful.
The professional studies we have already cited would demonstrate that requiring a particular educational background would not survive validity analysis since parents of all levels of education achieve high results with their children. In fact, one of the major benefits of home-schooling is the flexibility offered to parents to provide instruction based on the learning needs of each individual child.
There is a real danger in assuming that public school professionals understand what is needed for success in home-schooling. In the South Carolina case, the sixteen panelists who the court deemed were “not qualified” to assess home-schooling were all public school professionals. The court agreed that before public school educators could be capable of assessing the validity of a licensing standard for home-schooling, they had to have a job analysis which would identify the skills and knowledge necessary to be a successful home-school teacher
The Supreme Court of South Carolina said that it was evaluating the constitutionality of the state’s teacher exam under the standard of reasonableness. It held that the assumption that teaching in a home-school and teaching in a public school required the same skills and knowledge failed the test of reasonableness.
This was not a novel holding. Justice Tom Clark, of the Supreme Court of the United States, sitting in his capacity as a Circuit Justice, wrote a majority opinion for the Fourth Circuit on a teacher-testing matter in the public schools. He said, “A job analysis for one teaching position (and the appropriate test for it) would not necessarily be suitable for another.”
The case law did not require such scrutiny in 1953. Government assumptions were allowed to persist without meaningful review. This is no longer true. If the government is going to require people to have a degree, credential, or pass a test to get a job or exercise a job-like right (i.e., become a home-school teacher), then the state must prove that its licensing or credentialing requirement is “valid.” The standard must measure what it purports to measure—that those with the credential will generally be successful in home-schooling, while those without the credential will generally be unsuccessful in home-schooling
It must be remembered that this is the legal standard imposed by the mere “reasonableness” standard under the Due Process Clause. As has been effectively argued in the Father’s brief on the merits, the correct constitutional standard is strict judicial scrutiny since this involves a fundamental right. However, since the case law for certification and testing requirements has developed using the reasonableness standard, we have employed it here for the simple reason that if a law fails to meet the standard of reasonableness, then it could never survive strict judicial scrutiny.
The State of California has no evidence concerning the “content validity” of its teacher certification requirement in the home-schooling context. California must demonstrate the validity of its requirement, and it has failed to do so. Home-schooling is successful regardless of teacher’s certification. If this Court construes the statutes to require a teaching credential to be a home-schooling teacher, then the statute is unconstitutional since that credentialing standard is not reasonably related to the actual success or failure of students.
If this were not enough, in the section that follows, we will demonstrate that teacher’s certification is not even a valid requirement in the context of public schooling. Professional researchers have concluded that teacher’s certification requirements have no meaningful correlation with success in the public school classroom.
Requiring parents to possess a state teacher’s credential cannot survive any form of meaningful analysis whether it is done under the Due Process standard of reasonableness, strict judicial scrutiny under parental rights or religious freedom, or under the standard of the California Constitution which requires the state to “encourage” all suitable means of education.
III. Government Supervision of Education is No Guarantee
of Success in Any Context
Professional research in the last decade throws serious doubt on the relationship of teacher certification to students’ academic achievement. For example, in Andrew Wayne’s and Peter Youngs’ incisive article written in 2003, “Teacher Characteristics and Student Achievement Gains: A Review,”51 the authors conducted a meta-analysis of, among other things, two studies that evaluated the impact of certification on student achievement. After reviewing the studies thoroughly, they stated that “In the case of
certification, findings have been inconclusive except in mathematics, where high school students clearly learn more from teachers certified in mathematics.”52 That is, certification did not even co-occur with academic achievement except in the case of high school students and math. Even the studies that showed a positive relationship between certification and math achievement involved only correlational research, which prevents cause-and-effect conclusions from being drawn.
In a 2007 article in Education Next, several economist/educators studied teacher certification in New York. The title of their article says it all: “Photo Finish: Certification Doesn’t Guarantee a Winner.”53 They reported that “
teacher’s certification status matters little for student learning. We find no difference between
uncertified and traditionally certified teachers in their impact on math achievement.”54 In the same paragraph, the authors went on to say that “The picture looks the same when we separately examined teachers in elementary schools, middle schools, and schools with above- and below-median test scores.”55
Even the prestigious national certification provided by the U.S. National Board for Professional Teaching Standards fail to provide any heightened benefit over regular teachers. In a recent study conducted by William Sanders,58
the study found that “there was little difference in students’ achievement levels for teachers who earned the prestigious NBPTS credential, those who tried but failed to earn it, and those who never tried to get the certification.”59
Perhaps the best summary of the recent evidence—or lack thereof—of a relationship between student achievement and teacher certification is from the Journal of Teacher Education. In an article from March/April 2006, authors David and Scott Imig enumerated study after study that asked a number of questions about what makes an effective teacher regarding skills, demonstrated knowledge, meeting state teaching standards, etc. After reviewing the results of all of them, the authors concluded, “To the satisfaction of no one, educational researchers have been unable to identify those characteristics that do make a difference.”61
Not only does research fail to demonstrate any correlation between teacher certification and student success in public schools, but California’s public schools are themselves failing to measure up to national standards. On the most recent National Assessment of Educational Progress conducted by the United States Department of Education, California’s scores show alarming rates of low performance.
In 2007, the following percentages of California’s public school students demonstrated “basic,” “proficient,” or “advanced” achievement in Math, Reading, and Science in the fourth and eighth grades.62 These percentages are cumulative. This means that all those scoring at the “advanced” level were also included in the “basic” and “proficient” levels.
Thus, in fourth grade Math, 30% of students were not even at the basic level in math, and 70% were not at the level of proficiency. In eighth grade, 41% were not at the level of basic skills and 76% were not at the level of proficiency. An astonishing 47% of California students were not at the level of basic skills in fourth grade reading, and 77% were below the level of proficiency.
This Court quoted the trial court description of the L. family's home-schooling as “meager” and “lousy.” These same adjectives would appear to have parallel application on a much broader basis in California education. If California’s public schools are any indication of the success of requiring teaching to be done by credentialed teachers, there is no basis for imposing it on California’s home-schooling families.
Home-schooling by non-credentialed parents has proven to be successful, not only in California but across the country. As a “suitable means” of education, therefore, it is protected by the California Constitution. Any interpretation of California law that would require parents to be certified teachers before they could home-school would be unconstitutional and contrary to common sense. Teacher certification is not necessary to protect the state’s interest in children’s education, and modern research shows that it bears little or no statistical correlation to student achievement.
For these reasons, amici urge this Court to deny the writ
Please note: Numbering follows the original brief.
1. Joseph A. Lane, Clerk of the Second District Court of Appeal, Letter to Counsel dated March 25, 2008.
2. California Department of Education, Private Schools Frequently Asked Questions, question 14, last updated November 7, 2007,
available at http://www.cde.ca.gov/sp/ps/cd/psfaq.asp.
18. John Rogers, 10-year-old scholar takes Calif. college by storm, AP News, May 14, 2008, available at http://apnews.myway.com/article/20080514/ D90LCS4G0.html.
19. “California Boy Wins National Spelling Bee,” CBS News, May 31, 2007, available at http://www.cbsnews.com/stories/2007/05/31/national/main2873184.shtml.
30. Richard Sousa, On Education: Home-schooling is a viable alternative to public schools, San Francisco Chronicle, June 11, 2007, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/06/11/EDGKOP3DE31.DTL&hw=subject%3Dedu+subject%3Deducation&sn=150&sc=153.
51. Andrew Wayne & Peter Youngs, Teacher Characteristics and Student Achievement Gains: A Review, Review of Educational Research, Spring 2003, Vol. 73, No. 1, pp. 89-122.
52. Id., at 107.
53. Thomas Kane, Jonah Rockoff, and Douglas Staiger, Photo Finish: Certification Doesn’t Guarantee a Winner, Education Next, Winter 2007, pp. 61-67.
54. Id., at 64.
58. Wendy McColskey and James Stronge, Teacher Effectiveness, Student Achievement, & National Board Certified Teachers, June 2006, at http://www.education-consumers.com/articles/WM%20NBPTS%20certified%20report.pdf.
59. Bess Keller, Study for NBPTS Raises Questions About Credential, Education Week, Vol. 25 Issue 37 (May 17, 2006), 1.
61. David Imig and Scott Imig, The Teacher Effectiveness Movement: How 80 Years of Essentialist Control Have Shaped the Teacher Education Profession, Journal of Teacher Education, Vol. 57 No. 2, March/April 2006, pp. 167-180, 171.
62. Data from the National Center for Education Statistics, available at http://nces.ed.gov/nationsreportcard/states.profile.asp.