Pharisees Rule on Homeschooling
by JUSTIN D. BARNARD
Director of the Institute for Intellectual Discipleship
March 11, 2008 - Recently, an appellate court in California issued a ruling on a case involving a homeschool family. That ruling, which potentially renders homeschooling illegal under California state law, has caused alarm among many homeschool advocacy groups.
Both the implications of the case itself and the eventual resolution will likely take time to unfold. In the meantime, the text of the ruling itself provides an occasion to reflect upon nature of a wide swath of contemporary American jurisprudence. The present case is a classic illustration of mere legal formalism with an utter disregard for the Good toward which law is directed. Yet ironically, the judges borrow from the moral capital of prior precedents as a means of justifying, at least rhetorically, the legal formalism on which their decision was based.
In the decision issued, the judges noted that California allows exemptions under its compulsory public education laws both for properly credentialed private schools and home education under a properly credentialed tutor. However, in the case under consideration, “the parents have not demonstrated that mother has a teaching credential such that the children can be said to be receiving an education from a credentialed tutor.” Consequently, the mere formal requirements of California law apparently render this particular family’s educational practice illegal. Thus, the judges conclude, “It is clear that the education of the children at their home, whatever the quality of that education, does not qualify for the private full-time day school or credentialed tutor exemptions from compulsory education in a public full-time day school.”
While the technical precision of this interpretation seems impeccable, the judges’ overall framework for rendering this decision is absolutely astonishing. In a clause that almost escapes notice (”whatever the quality of that education”), the decision effectively declares that mere legal formalism trumps any greater educational good. This is like saying, “We really don’t care whether this practice is conducive to some greater moral good; the law prohibits it – end of discussion.” Can one honestly imagine such a narrow formalism being employed if the interpretation of the law in question involved compulsory chattel slavery for ethnic minorities?
The irony of this kind of formalism is that it borrows from the moral capital of prior precedents as a means of rhetorical justification. Earlier in the decision, the judges cite a US Supreme Court decision (Pierce v. Society of Sisters) in which it was held that, “No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.”
Of course, the judges in the California case view themselves in the tradition of providing for the public welfare by upholding California’s power to “regulate all schools.” However, that power is not seasoned by a proper appreciation of the moral good that the Pierce ruling clearly has in view. For part of the reason that many Californians choose to homeschool (including the family in this case) is that they are convinced that the state of California has abdicated its responsibility for promoting a curriculum that is not “manifestly inimical to the public welfare,” since it openly promotes lifestyles in the classroom that many rightly find contrary to a “good moral character.”
Judges of this sort are modern day Pharisees. They interpret the law with machine like precision. But just as machines have no soul, the interpretations they offer are morally vacuous. The troubling reality is, however, morally vacuous legal interpretations still have moral import. This is because mere formalism in law is a denial of the reality of an over-arching Good.
In I Timothy 3, the apostle Paul warned Timothy that “in the last days” many would have “the appearance of godliness” while “denying its power.” (Paul’s prescience about the legal positivism that would characterize so much of 20th and 21st century jurisprudence is yet another mark of Divine inspiration.) Sadly, Paul’s description characterizes the reasoning in this case. It is reasoning without a soul – much like Jesus’ own allusion to “whitewashed tombs.”