Let California Outlaw Homeschooling

In the past couple of weeks, a low-level furor has been roiling the Golden State over the subject of homeschooling.

A California appeals court appeared to rule that there is no right to homeschool your children in the state of California.  As you might expect, this caused panic on the part of the hundreds of thousands of parents in that state who choose to educate their own children privately.

The fears abated somewhat upon Gov. Schwarzenegger's denunciation of the decision and of his determination to fight the court on this point.  But concern over the issue spread nationwide, with calls from various groups that the issue be decided by Federal courts as a matter of personal liberty.

It's a natural and understandable response for Americans to assume that any rights which they feel they have are preserved in the Federal constitution.  After all, the Constitution and its Amendments do, indeed, enshrine a great many of the most fundamental human and civil rights; America without these documents would bear no resemblance to the great nation we are today.

But the greatness of our Constitution should not blind us to a foundational principle of conservatism: it is a real document, with real words in it, with real meanings.  They mean what they say, no more, no less.

And nowhere in the Constitution is there stated a right to homeschool one's own children, or even that there is such a thing as parental authority.  You'll also find that the Constitution does not give any government the right to require that children attend any school at all; that authority has been assumed by various state governments.

The Founders knew full well that if they included all the rights that, as free Americans, we ought to have, the Constitution would weigh as much as last year's national budget.  So they hit all the major and fundamental rights, particularly the ones that their own personal experiences had found to be essential, and trusted to later generations to make emendations as necessary.

They didn't entirely neglect the concept of All The Other Rights; in fact, the other rights got one whole Amendment all to themselves:

Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In other words, just because the Constitution doesn't happen to mention a particular right does not mean that it does not exist per se; merely that it's not in the Constitution and must be found elsewhere.

But where exactly?  That's answered in the very next Amendment:

Amendment 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Founders recognized that there were any number of other rights.  Rather than hash them all out at the federal level, they followed the principles of federalism and passed the question down to the states, and to the people.

Over the years, this proved to be a wise plan.  Indeed, people's rights are different somewhat from state to state; for example, the state of Massachusetts had an official, state-endorsed, taxpayer-funded religion until 1833.  If you were a resident of the state of Massachusetts, you did not have the right not to contribute to that church; whereas, if you were a resident of Rhode Island, you didn't have to support a church.  The Constitution said that Congress could not establish a religion; it said nothing about the power of individual states to do so.

In 1833, Massachusetts decided to do away with an established church, and to have something more closely resembling the "separation of church and state" that we now view as necessary.  In the proper democratic way, via the people's elected representatives in the legislature, the State of Massachusetts debated and decided to pass a law and make a change.  Why?  Not because the Supreme Court said they had to, but because they saw that things weren't working well, in contrast with the different experience of their neighbors.

That brings us back to the decision of the California state court.  To stipulate clearly and plainly: it was a stupid decision.

The statistics amply demonstrate that, on average, homeschooled students far outperform public-school students scholastically.  Even if the difference in results were not so profound, it would still be a deeply unwise and un-American act to remove from parents the authority to make decisions concerning how their children ought to be brought up.  But being stupid, and indeed even being un-American, is not unconstitutional.

As the reaction of the teachers' union showed, there is a strong lobby that would like to outlaw homeschooling for their own private gain.  There are plenty of logical, historical, and rational arguments why this is wrong, but nothing is so clear as an object lesson - and that's exactly what the Founders intended, via federalism.

The whole purpose of reserving rights to the several states is because the Founders recognized that different states might want to do things differently.

Sometimes this reflects the different character of the different states.  The feelings of the voters of California on the subject of cloning, say, may be very different from those of the voters of Iowa, and it's right and proper that those communities be allowed to reflect their own views by having their own representatives pass their own laws.

Other times, though, the issue is not based nearly as clearly on a difference in fundamental principle or feeling, but on preference.  In these cases, the fifty states provide an excellent laboratory in order for us to experiment and discover what works and what doesn't.  We've talked about this in connection with environmental regulation; it's just as true regarding education.

What do we hear so often from politicians concerning the importance of education?  That if our schools are bad, people will leave.  Well, our schools are bad, or at least a great many of them are; and, as predicted, people are leaving.

Sometimes the children leave the public schools and go into private schools; other times, into homeschooling; and still other times, into a different town, county, or state.

Thousands of people have been leaving California for many years; the population of that state has stayed more or less stable only because of illegal and legal immigration.

California has many natural advantages, but for those folks moving out, those advantages are outweighed by the various disadvantages - high taxes, insane property prices, government over-regulation, high crime, ineffective government officials, and so on.  If, to this list, the state wishes to add "lack of parental choice regarding children's education," on their own heads be it.  The consequences will make themselves manifest.

That way, other states with teachers' unions (which is to say, all of them) will be able to see exactly what happens when you grant them their fondest dream of outlawing home schooling.  Eventually, the problem will be fixed the right way - in the legislatures of the individual states, through popular pressure.

We pluck random rights from the previously unexplored depths of the Constitution at our peril.  After all, that's how we got Roe v. Wade, and three decades of increasingly bitter politics.  Plucking that right from the Constitution led to a low-grade civil war in which people actually die.

Let's just let the Constitution say what it says, and if we need to change it, to do it the right way: via an amendment, properly voted on, and not through un-elected judges.