On August 8, 2008, the California Second District Court of Appeals reversed its previous opinion of February 28, 2008, that had erroneously announced that home education was illegal and constitutionally unprotected in California. As of August 8, 2008, California home educators are once again protected from wholesale criminal prosecution, fines, involuntary counseling, and termination of parental rights.
Daniel E. Witte, lead attorney for Sutherland’s effort, noted the new opinion took the same positions advocated in Sutherland’s amicus curiae brief. “The Court is no longer asserting that ‘the educational program of the State of California…was not designed to accommodate the personal [or religious] ideas of any individual in the field of education.'” In addition, Witte noted, “the Court opted for judicial restraint and deferred to the policy determinations expressed in favor of home education by the California Legislature, Attorney General, and Governor.”
The Court also conceded that “[i]f home schools are not permitted in California unless…[by a credentialed tutor], this [construction of the statutory scheme] raises difficult constitutional questions” that would be best avoided by a plausible contrary statutory interpretation. Moreover, the Court indicated, parental interests under the Parental Liberty Doctrine are to be weighed with the “strict scrutiny” test, under which state interference must be “narrowly tailored” to achieve a “compelling state interest.” Witte observed, “From Sutherland’s perspective, this new opinion is excellent.”
The Court’s August 8, 2008 opinion is found athttp://www.courtinfo.ca.gov/opinions/documents/B192878A.PDF. Sutherland’s amicus brief can be found athttp://www.sutherlandinstitute.org/uploads/rachel.pdf. The brief’s appendix includes the Daniel Witte and Paul T. Mero law review article, “Removing Classrooms from the Battlefield: Liberty, Paternalism, and the Redemptive Promise of Educational Choice,” 2008 BYU Law Review 377, that can be found athttp://lawreview.byu.edu/ and http://lawreview.byu.edu/archives/2008/2/8WITTE.FIN.pdf.
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