Homeschooling: A Family’s Journey

Earlier this year, a California appellate court ruled that parents without teaching credentials had no right to homeschool in that state, then, a few weeks later, vacated the decision and said it would re-hear the case. With the rehearing scheduled for June 23, suspense is building over what the court intends to do. In this post, HSC Legal team co-chair Debbie Schwarzer gives a lawyers-eye-view of recent events in the case, called In re Rachel L., and what to watch for next.

Debbi writes:

Things have been moving pretty quickly over the last couple of weeks. The parties had to get their briefs for the rehearing filed by April 28, and anyone interested in applying to file an amicus brief had to have their application (with the finished brief attached) in to the court by May 19. Parties then had until June 2 to file reply briefs answering points made either in the other party’s brief or in an amicus brief.

We had been wondering how selective the court would be in taking amicus briefs. The three major California-based homeschool groups, California Homeschool Network, Christian Home Educators Association of California and HomeSchool Association of California, jointly filed a brief on May 18 with the help of three prominent law firms, Baker & McKenzie, Munger Tolles and Olson and Wilson, Sonsini, Goodrich & Rosati (I was HSC’s representative in this process). We were thrilled to learn the next day that our brief had been accepted, then a little humbled when we figured out the court was basically taking every amicus brief filed. It didn’t surprise me. We had all criticized the court for reaching its original decision without hearing from all the different groups that would be affected by it, and by gum, they weren’t going to make that mistake again.

I can’t arrive at the same number twice when trying to count the amicus briefs, but it’s somewhere in the neighborhood of 12 to 16. Undoubtedly clerks will read them all and prepare bench memos summarizing the key points of each, but whether the judges read them before the hearing is another matter.

The briefs fall into several different categories. More were filed addressing constitutional issues, both religious and non-religious, than any other. Several addressed statutory interpretation, several provided factual background information about the success and efficacy of homeschooling (I was also counsel on one such brief, representing several private schools that support homeschooling, several well-known California businesses that help homeschoolers, and other homeschooling support groups), one reviewed all 50 state laws. The joint CHEA/CHN/HSC brief covered some important procedural arguments about why the court should never reach any broad questions of the legality of homeschooling, but also covers statutory interpretation and parental constitutional rights. The briefs filed by the Governor and the Superintendent of Public Instruction basically supported private homeschooling in some forms. The one filed by the California Teachers Association seemed to say that some forms of private homeschooling were legal, but then tried to say, not surprisingly, that all homeschool teachers need to be credentialed. LA Unified filed an amicus brief but didn’t bother to serve the parents, as required by law, so the father is moving to either strike the brief or get extra time to reply to it.

The hearing is scheduled for Monday, June 23 in Los Angeles. Amicus parties and their counsel have been told they may attend, so many of us are planning to go. The court had originally scheduled one hour total for oral argument, to be divided equally between the two sides, but we all received notice early this week that the court was extending the time for oral argument to a total of one hour for each side.

We’re all still working on getting our presentation for oral argument on Monday ready. The parents have agreed that we can have 5 to 10 minutes of their oral argument time (there’s one hour for the state and education amici, and one hour for the family, Sunland Christian School and pro-homeschooling amici, and on our side we need to agree how to split it up or the court will do it for us, which no one wants) to make a presentation and answer questions from the court. As the only California-based representatives of California homeschoolers, we thought it important that we be ready with something to say in addition to being ready to clarify issues raised earlier in the hearing. An appellate specialist with Munger, Tolles & Olson, the firm that represented our group member CHEA (Christian Home Educators Association) who is well known to this court (and who clerked for Justice Scalia of the United States Supreme Court) will be making the presentation on our behalf.

The reason for that is simple. Oral argument is not an opportunity for attorneys to grandstand and restate all the brilliant points in their brief. To the contrary, it’s a chance for attorneys to explain any subtleties or ambiguities that they felt might not have come across completely in their brief and, more importantly, a chance for judges to ask questions of counsel, a process that can be brutal. Since we can’t read the judges’ minds, we don’t know what questions they have, so we’re trying to be ready for anything.

The big debate here is whether the judges want to rule narrowly or broadly. Some people think that the court, in granting the rehearing (which really isn’t that common a thing for an appellate court to do), is saying, “You know, we screwed up. We stepped in it big time. We realize that we affected way more people than we should have by our ruling, and we’d like to rule in a narrow way that really only touches the parties to this case.” If that is true, several of the briefs do an excellent job of pointing the court to a variety of narrow grounds they could choose from in their ruling.

Others are more pessimistic and feel that the court is out to get homeschooling and has no intention of trying to craft a narrow ruling that is limited to the children in this case, no matter what Arnold Schwarzenegger and Jack O’Connell said. For those reasons, many of the briefs have explained, very well, how well-settled principles of statutory interpretation show that California law permits homeschooling as presently practiced, and how a ruling that required parents to hold credentials would violate other well-settled constitutional principles.

We think it’s possible that, in the first few minutes of the hearing, we’ll get a sense of which way the court is heading. We might not, but if we do, the attorneys on the pro-homeschooling side will be ready to help the panel see how a broad ruling just won’t cut it.