Social Responses From Religious Diversity and Pluralism Homeschooling Cases

by Irene Briones
A paper presented at the CESNUR 2010 conference in Torino.© Irene Briones, 2010. Please do not quote or reproduce without the consent of the author

I. INTRODUCCTION

The immigration is a global and ancient phenomenon, United States is an excellent example of this statement, however, Europe is accommodating to this experience of pluralism into societies with political and social polices.

We live among surprising circumstances, secular states and a revival of religions, religious freedom and religious intolerance, the wrestling between religious symbols and public spaces, etc…

Nowadays, the religious sociology is a very peculiar topic of research because responds to natural movements of social communities living their convictions with absolutely independence from current political attitudes. Secular States and neutral governments make up politics that causes a different effect from the initial goal.

The revival of religiosity is increasing everyday with a stronger attraction towards new religious movements and an enforcement of traditional religions facing state decisions as the abolition of religious symbols in public spaces.

All these religious demonstrations have an academic interest, so sociologists, psychologists, experts in law, and politicians keep fights on a hard field of combat as it is children’ education.

Every International Convention recognize parents’ right to educate their children according to own beliefs, however, in some countries private education it is not accessible for all families. Otherwise, some families prefer not to mix or blend their children with values do not admitted by their religion, and decide to raise them at home.

I’ll study homeschooling cases in two countries: United States and Spain. United States is the paradise of home education, and Spain is on the way between heaven and hell, going up positively step by step.

These American and Spanish cases are originated by the phenomenon of religious conscience. The parents’ freedom of conscience is against some public or state attitudes in matter of education, not against the necessity of education itself. Home education involves interests really difficult to harmonize: the best child interest, compelling interests like compulsory education, and parents’ right to educate their children according to own beliefs¹. I’ll analyze the legislation in those countries and some judicial decisions of vital importance to elaborate serious conclusions on this conscience conflict where a private interest is in front of a public interest.

II. COMMON MOTIVATIONS FOR HOMESCHOLING THE CHILDREN

Most of Constitutions in democratic political systems recognize the right of parents to educate their children according to their own beliefs. Nevertheless, the religious or spiritual education is only a part of the general education a child must receive along the infancy.

The education at schools provides a general culture, academic knowledge, and tools to get social integration. For this reasons, the enrolment at schools became compulsory in all education policies. Some of them allow home education with an only limit, a “reasonable” burden, among them, United States and United Kingdom. Others like Germany or Spain forbid this practice.

There are several reasons to be homeschoolers, and contrary to the general opinion, the religious motivations² are not the only cause to choose this kind of education. The families who make this decision usually have some problems of work³, special needs, or disabilities, and take such determination from diverse philosophical, political and religious points, regardless the race and ethnic origin are different. These points of view and human belonging, determine the method of practicing homeschooling, there is not a common pattern for all of them, but some circumstances concur to impulse the initiative.

The National Center for Education Statistics has researched this phenomenon and its outcomes bring us the following reasons: the environment of schools, public or private; the fear to drugs or any lack of safety; negative peer pressure; disagreement with academic instruction; a wrong religious or moral guide; special needs for disable children, with mental or physical handicaps.

Religious and spiritual guide is, of course, more suitable at home without a disturbing environment. This goal is not a showing of opposition to state education, hoomeschoolers are very responsible about education of children, but there is an objection to the methodology and some values usually learnt at schools.

III. FROM THE PARADAISE TO THE HELL

A. THE AMERICAN PARADAISE

United States is an authetic paradaise to parents who wants other values and alternative pedagogical methods in their children education. The division in fifty states is not only territorial, under Constitution of United States, the supreme law, each state has an own legislative, executive and judicial system very rich of peculiar differences. We will see concisely such diversity.

All legal resources I found out show there are states with high level of regulation, moderate, low or. I shall not report about all of them, I have selected a group of any classification in order to know the general status in USA.

1. States without home school statutes have a different level of regulation on this kind of education⁴:

a. – Requiring no notice:

Connecticut, Indiana, New Jersey, Oklahoma, Texas.

b. - With low regulation

Alabama, California, Kentucky, Kansas, Nebraska.

c. - With moderate regulation:

Florida, Illinois, Oregon, South Dakota.

e. - With high regulation

Massachusetts.

2. States with home school statutes: Some states, studied in this title, do not have statute, but other statutes work as a valid option to home schooling⁵.

 

1.1. Requiring no notice

1.1.1. Connecticut

A home school may operate if the parent is able to show that the child is elsewhere receiving equivalent instruction in the studies taught in the public schools following the “Revised Procedures Concerning Requests from Parents to Educate Their Child at Home” approved on November 7, 1990, by Connecticut Board of Education.

1.1.2. Indiana

We can see the lack of a home school statute is substituted by the interpretation of Ind. Code Ann. § 20-33-2-4(2), according to trends some judicial decisions.

In the decision State v. Peterman⁶, the Indiana Appellate Court which held that the Indiana compulsory attendance law allows the operation of home schools as a private school.

The court explained: “Under a law very similar to ours, the Supreme Court of Massachusetts has held that the object and purpose of a compulsory educational law are that all the children shall be educated, not that they shall be educated in any particular way⁷”.

In Mazanec v. North Judson-San Pierre School Corporation⁸, a federal district court recognized that parents have the constitutional right to educate their children in a home environment⁹.

In practice, home school families come educating their children without strictly requirements under a low regulation.

1.2. With Low Regulation

1.2.1. Alabama

Children have to attend school compulsory from 7 to 17, and does not exist a home school statute.

Home school is allowable with a competent private teacher who must send repports to State Board of Education.

Every child attending a church school is also exempt from the requirements of compulsory attendance because home schools are qualified as church schools, operated as a ministry of a local church, group of churches, denomination, and/or association of churches on a nonprofit basis which do not receive any state or federal funding¹⁰.

The attendance of teachers and the enrollment of a child in this kind of school, and are very controlled. If the local school district believes a family is not in compliance with the law, it must give the family 3 days’ written notice (§ 16-28-16) prior to instituting criminal charges. In a case, the Alabama Court of Criminal Appeals reversed the conviction of a home school father who only received a 2-hour verbal notice from a truant officer¹¹.

Although religious freedom is an unalienable right, Alabama religious freedom Act says in Alabama Religious Freedom Amendment: The compelling interest test as set forth in prior court rulings is a workable test for striking sensible balances between religious liberty and competing governmental interests in areas ranging from public education (pedagogical interests and religious rights, including recognizing regulations necessary to alleviate interference with the educational process versus rights of religious freedom) to national defense (conscription and conscientious objection, including the need to raise an army versus rights to object to individual participation), and other areas of important mutual concern¹².

1.2.2. California

This state haven’t passed a home school statute, and it is required a compulsory attendance between the ages of 6” by Dec. 2 and under 18 years of age¹³.

Nevertheless, an individual home school could qualify as a private school by filing an annual private school affidavit. The California Court of Appeals for the Second Appellate District ruled in 2008 that “California statutes permit homeschooling as a species of private school education.”

There are two models of education through special programs: private school satellite program, and independent study program at home; this second one using the public school curriculum.

1.2.3. Kansas

Any Statute on home school is now in Kansas, but Kan. Stat. Ann. § 72-111, allows some alternatives.

Non-accredited private school option permitted by § 72-53,101 Kan. Stat. Ann or operate as a satellite of a private school located in Kansas are a consequence of Parental Rights Act in 1996 that further protect a parent’s right to choose home schooling.

1.3. With moderate regulation

1.3.1. Florida

The Florida Statutes Annotated § 1003.02(1) (g)1 is considered home school law in this state and homeschoolers can pursue under its previsions.

A home education program is the sequentially progressive instruction of a student directed by his parent or guardian¹⁴.

Private, parochial, religious or denominational schools are considered as home schools. In State v. Buckner¹⁵ was admitted that a group of homeschools can file as private schools, according to Fla. Stat. Ann. &1002.01 (2), in which is stated a child who attends one these type of schools is exempt from compulsory attendance.

These schools needs to get a business license to operated as a such private schools. In practice, this sattelite education is being teached without conflicts, although the Board of Education compel to attend school as obligation.

Pupils must be evaluated annually by superintendent about educational progress, and other aspects as psychologist mentally evolution. If the progress is not showed properly, the parent shall have one year to provide a remedial instruction, and the pupil will be reevaluated.

1.3.2. Illinois

This state has not regulated law on home education and the compulsory attendance at school is from 7 to 17 years old.

Although a home school could be equivalent to private school¹⁶, this option is some unclear and a truancy action should be filed againts parents in court.

1.4. With high regulation

1.4.1. Massachusetts

We can conclude after reading the chapter 76 of General Law of Massachusetts¹⁷ that home schooling could have any option as a private school, although a child must be instructed in a manner approved in advance by the superintendent or the school committee, but shall not withhold such approval on account of religious teaching¹⁸.

A Supreme Judicial Court of Massachusetts case, Care and Protection of Charles, 1987¹⁹, ruled that parents have a right to educate their children at home, but it must be reconciled with the state interest in the education of its citizenry. According to Care and Protection of Charles, the school committee must give parents an opportunity to explain their home school plan and present witnesses on their behalf²⁰. Home education is a "right protected by the Fourteenth Amendment." (598). The object of the statute is "that all children shall be educated, not that they shall be educated in any particular way." (600)

The Supreme Judicial Court of Massachusetts outlined four areas a superintendent or school committee may examine when determining whether to approve a home education plan.

These four areas are:

a. The proposed curriculum and number of hours of instruction of each of the proposed subjects. Charles at p. 601;

b. The competency of the parents to teach their children (superintendents or school committees may not require certification, advanced degrees, or college degrees). Charles at p. 601.;

c. Textbooks, workbooks, and other instructional aids, as well as lesson plans and teaching manuals (so that the superintendent or committee can determine the subjects to be taught and the grade level of instruction for comparison with the public schools’ curriculum). The superintendent or school committee may “not . . . dictate the manner in which the subjects will be taught.” Charles at p. 602; and d. Periodic assessments (to ensure educational progress and attainment of minimum standards). The Court stated that the superintendent or school committee may properly require standardized testing or may substitute, subject to the approval of the parents, another form of assessment. Charles at p. 602.

These areas of requirements are essential for home school families as a minimum and a maximum; it must be reminded Brunelle v. Lynn Public Schools, the court ruled that “the approval of the home school proposal must not be conditioned on requirements that are not essential to the state interest in assuring that all children be educated”.

2. With home school statute

2.1. Alaska

There is compulsory attendance law and the ages are from 7 to 16, however, five possibilities are offered to parents legally.

The first of those is very permissible requiring no notices. According to Alaska Statute &14.30.010 (b)(12)²¹: If the child “is being educated in the child’s home by a parent or legal guardian,” the child is exempt from compulsory attendance. Under this option, there are no requirements to notify, seek approval, test, file forms, or have any teacher qualifications. The burden is on the state to prove that parents are not teaching their children.

The same State &14.30.010 (b)(11)(B), permits home education tutoring by a certificated teacher.

Alaska Stat. &14.30.010(b)(11), states the child is equally well-served by an educational experience approved by the school board, after a written request for excuse from school attendance.

Other way of educating children is the creation of home schools. It is a category of school not defined legally as such, but Alaska Statute identified religious or other private school as long as home schools with specific requirements²², without support from direct state or federal funding²³.

State does not require standardized test to education control, but parents have to choose one available in Department of Education in order to check academic achievements.

2.2. Arizona

Children have to attend school from 6 to 16, but a Home School Statute: Ariz. Rev. Stat. § 15-802²⁴, permits this alternative education.

If a child who will attend homeschool has not reached eight years of age by September 1 of the school year, the person who has custody may exempt that child from the compulsory attendance law by filing an affidavit of intent to not begin homeschool instruction²⁵.

A “home school” is not a private school, means a school conducted primarily by the parent, guardian or other person who has custody of the child or instruction provided in the child’s home²⁶.

2.3. Arkansas

It is compulsory the attendance to school from 5 to 17, but a current home school statute ensues any legal aspect of parents educating children by themselves.

Parents or guardians may choose to provide a home school for their children by notifying the local public school superintendent in writing²⁷, and they also must sign a waiver acknowledging that the State of Arkansas is not liable for the education of their child during the time of home schooling²⁸.

Unfortunately, a home school is not eligible for local, state, or federal funds allocated to a public school district²⁹.

The U.S. Court of Appeals declared the standardized testing requirement to be constitutional in Murphy v. Arkansas when said: “...we believe that the state has no means less restrictive than its administration of achievement tests to ensure that its citizens are being properly educated” ³⁰. A a consecuence of this decisión, Arkansas Statute is strictly applied and any student who refuses to participate in the testing program may be prosecuted for truancy³¹.

2.4. Colorado

It is very advantageous to homeschoolers the Home School Statute: Colo. Rev. Stat. § 22-33-104.5³²: “It is the primary right and obligation of the parent to choose the proper education and training for children under his care and supervision. It is recognized that home-based education is a legitimate alternative to classroom attendance for the instruction of children and that any regulation of nonpublic home-based educational programs should be sufficiently flexible to accommodate a variety of circumstances. The general assembly further declares that nonpublic home-based educational programs shall be subject only to minimum state controls which are currently applicable to other forms of nonpublic education.” (1).

Colorado state has a moderate regulation asking homeschool families for records of attendance and evaluation results of home education, not considering this type of education as private school.

Another option can be chosen for this families, the independent schools. The parents can enrol their children, but teaching them at home. People in Interest of D.B., 767 P.2d 801 (Colo. App. 1988), held that, according to Colo. Rev. Stat. § 22-33-104(2)(b), children “enrolled in” (changed from the word “attending” in 1983) an independent or parochial school that provides a basic academic education can be allowed by that school to be taught at home. Such students are legally classified as private school students.

2.5. Delaware

From 5 to 16 years old is compulsory the attendance to school, but a Home School Statute allows a different way of receiving education.

Delaware Code Annotated, Title 14, § 2703A offers three possibilities of developing home school:

1ª. Single-family homeschool. The education of one’s own child(ren) primarily by the parent(s) or legal guardian(s) of such child(ren) mainly in their own residence. Delaware Code Annotated, Title 14, § 2703A(2).

2ª. Multi-family homeschool. The education of children, primarily by the parent(s) or legal guardian(s) of such children mainly in one or several residences, or other facilities, when such children are not all related to each other as brother or sister. A person shall act as a liaison to the Department of Education for reporting enrollment and attendance information for all families involved. Delaware Code Annotated, Title 14, § 2703A(1).

3ª. Single-family homeschool coordinated with the local school district. The education of child(ren) primarily by the parent(s) or legal guardian(s) of such child(ren) mainly in their own residence using a curriculum approved by the local superintendent or his/her designee. The local superintendent shall determine in writing that the student is or will be provided with regular and thorough instruction by the student’s parent(s) or legal guardian(s) in the subjects prescribed for the public schools of the State and in a manner suitable to children of the same age and stage of advancement. Delaware Code Annotated, Title 14, § 2703A(3).

Under all three options above, homeschools must report attendance information to the Department of Education on or before July 31 each year. Before November 1, homeschools must also submit an annual statement of enrollment as of the last school day in September. Both reports must be on forms prescribed by the Department of Education. Delaware Code Annotated, Title 14, § 2704.

2.6. District of Columbia

The most important legal instrument is the “Public Education Reform Amendment Act of 2007”³³ The District of Columbia City Council (D.C. Council) created a State School Board of Education (SBOE). This Council approved state “standards for home schooling”.

Regardless, the Office of the State Superintendent of Education (OSSE), adopted in 2008 a new Chapter 52 of the District Code of Municipal Regulations (DCMR): “District of Columbia Home Schooling”.

Before this new regulation, homeschoolers could apply their education choice as a private school; though this current regulation can be followed a different program by a parent or legal guardian. The parents or guardians must keep up a portfolio of home schooling material that demonstrate the child’s current work in a range of subjects. DCMR requires that parents or guardians have a high school diploma or its equivalent in order to ensure the best interest of pupils.

When the OSSE determines that a student is not receiving a thorough, regular education, it must provide a written “Notification of Deficiencies” within 30 days of the review.

A parent or guardian has other 30 days, in which to respond with a “Corrective Action Plan” (“CAP”). If the OSSE determines that a homeschool program “does not conform to the requirements” of DCMR, can issue a letter of non-compliance which can be appealed in writing within 15 days to the State Superintendent of Education. After the State Superintendent issues a final decision, the parent or legal guardian may appeal to the D.C. Superior Court.

The District of Columbia is qualified as a state with a moderate regulation, even though the requirements and control to maintain a adequate level of education are taken seriously by The District of Columbia City Council.

2.7. Georgia

Georgia provides regulation to home schooling by a Home School Statute: Ga. Code Ann. § 20-2-690(c)³⁴.

The home school must offer a basic academic educational program³⁵ and parents have to prepare a written report annually and employ a tutor to teach. Students must take a national standardized achievement test every three years beginning at the end of the third grade.

Parents must previously submit a declaration of intent to home study to the local superintendent within 30 days after the establishment of the home study program and by Sept. 1 every year thereafter³⁶. This possibility appears through Ga. Code Ann. § 20-2-690(c), introduced by Georgia Supreme Court in Roembhild v. Georgia, 1983³⁷ that declared the former law as unconstitutionally vague and unjust.

2.8. Hawaii

Hawaii gives to homeschool families a couple of choices provided in Hawaii Revised Statutes § 302A-1132³⁸, specifically in § 302A-1132(a)(5): practise home school or an alternative educational program approved by the superintendent.

It is very important to know that a home school is not qualified as private school, and parents have to notice the beginning of home school filling and submitting a form of education department or sending a letter with all the requirements regulated at Statute and Hawaii Admin. Rules, § 8-12-13.

Parents are compelled to make and keep a record of planned curriculum and summit an annual report to local authority under the pressure to be accused with educational neglect charges. Those requirements are equivalent to standardized tests demonstrating a grade level achievement appropriate to the child’s age.

2.9. Idaho

Although compulsory attendance at school is prescribed from seven to 16 years old, Idaho enforced a Home School Statute by § 33-202, Idaho Code³⁹, and as a consequence of this provision a child shall be instructed by, or at the direction of, the parent or guardian, in subjects commonly and usually taught in Idaho public schools.

Case law is in favour to home schooling when allows not to answer questionnaires about the nature of home study program⁴⁰, and charge on the state the burden to prove the home school is not in compliance with law before starting a juvenile prosecutions according Youth Rehabilitation Act⁴¹.

2.10. Iowa

Home School Law in Iowa is composed by some legal instruments:

1. Iowa Code Ann. § 299A.1−299A.10;

2. Iowa Admin. Code §§ 281-31.1 to -31.10.

3. The Iowa Dept. of Education’s “Competent Private Instruction Handbook”⁴².

Parents must annually submit a “Competent Private Instruction” (CPI) form to the school board secretary. This form needs a content which extremes are regulated by the Iowa Department of Education’s 2009-2010 CPI Handbook.

This choice is for all home school families, but also can employ a teacher who supervises the educational progress of children, Parents choose a teacher to review student materials and write a brief evaluation.

Home education is a good way of receiving education for children with special needs if a family intends to seek special education benefits, services or evaluations from the public school system.

2.11. Louisiana

A home study plan⁴³ is a program in which an approved curriculum can be implemented under the direction and control of a parent or a tutor. Any child eligible to attend an elementary or secondary school in Louisiana is eligible to participate in a home study plan. Home study regulations are found at R.S. 17:236 and 17:236.1⁴⁴.

An initial application must be made within 15 days of beginning a program of home instruction. A renewal application must be made by the first of October of the school year or within 12 months of the approval of the initial application, whichever is later. A renewal application is accepted upon presentation of satisfactory evidence that the program offered a sustained curriculum of a quality at least equal to that of the public schools at the same grade level. The sustained curriculum can be substantiated in several ways, including presentation of test results on which the student scored at or above his/her grade level or description and substantiating documents detailing the contents of the instructional program.

In the alternative, a homeschool may operate as a private school if it has an “adequate physical plant,” has “instructional staff members,” operates for a minimum of 180 days, and receives no direct or indirect federal or state funding⁴⁵

There is no statutory mandate regarding qualifications for teachers.

2.12. New York

New York has ruled a Home School Statute in N.Y. Educ. Law § 3204⁴⁶, and enacted in 1988, home school regulations: N.Y. Comp. Codes R. & Regs. tit. 8, § 100.10⁴⁷.

A child “may attend a public school or elsewhere.” Instruction given to a minor “elsewhere” must be “at least substantially equivalent to the instruction given to minors of like age or attainments at the public schools.” N.Y. Educ. Law § 3204(2).

Parents must submit notice of intent to homeschool to the superintendent by July 1, or within fourteen days of the commencement of homeschool instruction during the middle of a school year. Parents must also complete an Individualized Home Instruction Plan (“IHIP”) containing the child’s name, age, and grade level; a list of syllabi, course materials, or plan of instruction; the dates for submission of quarterly reports; and the name of the individuals providing the instruction. Finally, parents are required to maintain records of attendance; file quarterly reports containing hours of instruction, material covered in each subject, and an evaluation for each subject; and file an annual

assessment with the last quarterly report⁴⁸.

Regarding teacher qualifications, instruction must be provided by a competent teacher. N.Y. Education Law §3204. A parent is deemed “competent” if the regulations above are followed.

New York not always has had an open attitude toward parents defending religious beliefs and constitutional rights. Remind the case: Blackwelder v. Safnauer, 1988⁴⁹, granting the school officials' motions for summary judgment, held that N.Y. Educ. Law, mandating that the educational services provided to a minor "elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides" and that such services must be provided by "competent" instructors, did not violate the parents' First Amendment right to religious freedom. The parents contended that (1) their religious beliefs compelled them to give their children a "Christian education," which they understood to be an education in which their religious values were interwoven into every area of study in which their children engaged; (2) allowing their children to attend public schools, where "religiously integrated" studies were prohibited, would violate fundamental religious tenets; and (3) particularly offensive to them was the study of evolution and what they termed an "amoral" approach to sex education in public schools. It was not clear, the court said, how the requirements of the statute conflicted with the parents' religious beliefs or how the manner in which the requirements were enforced by local school districts impinged upon the parents' religious practices. Even assuming that the statutory requirements did burden practices that were at the core of the parents' religion, said the court that burden was justified by compelling state interests, and the statute was as narrowly tailored as was feasible to accommodate the parents' religious conduct without sacrificing important state interests⁵⁰.

2.13. Pennsylvania

In Pennsylvania, code and regulations permit⁵¹ parents have four options based in a constitutional reasoning⁵²: “Parents have a substantial constitutional right to direct and control the upbringing and development of their minor children⁵³”.

First according to Home School Statute: Pa. Stat. Ann. tit. 24, § 13-1327.1 (SB 154; passed December, 1988). Parents may file a notarized affidavit with the superintendent prior to the commencement of the home instruction and annually thereafter. The affidavit must include the name of the parent/supervisor, name and age of children, address, and telephone number; assurance that subjects are taught in English; an outline of educational objectives for each subject; evidence of immunization; receipt of health and medical services required by law; and a certification that the parent/supervisor, all adults living in the home, and any other persons having legal custody of the children have not been convicted of a certain criminal offenses within the last five years⁵⁴.

A parent/supervisor must annually maintain and provide the superintendent with a portfolio including a “log...which designates reading materials used, samples of any writing, worksheets, workbooks or creative materials used by the student.” Pa. Stat. Ann. tit. 24, § 13-1327.1(e)(1). The parent/supervisor must also maintain and provide an annual written evaluation of the student’s educational progress by a licensed psychologist, teacher certified by the state, or a non-public school teacher or administrator⁵⁵.

Second, parents may homeschool their children if they are a ‘properly qualified private tutor.’ Such person is one who is “certified by the Commonwealth of Pennsylvania to teach in the public schools of Pennsylvania; who is teaching one or more children who are members of a single family; who provides the majority of the instruction to such child or children; and who is receiving a fee or other consideration for such instructional services⁵⁶”

As a third option, parents may homeschool their children if the home is a satellite of a religious day school. Children must be enrolled in a day school which is operated by a bona fide church or other religious body and which provides a minimum of 180 days of instruction⁵⁷.

Groups of homeschoolers could organize a school under the auspices of their church. An administrator could be chosen to keep records, the teachers would be the parents, and the school campus would be divided up into each home.

Fourth. Accredited Day School/Boarding School. Parents may teach their children at home if their child is enrolled in an extension or satellite of a day or boarding school accredited by an accrediting association which is approved by the State Board of Education. 24 P.S. § 13-1327(c).

Finally, homeschoolers may invoke the Religious Freedom Protection Act⁵⁸ to demonstrate a substantial burden on the parents’ free exercise of religion⁵⁹.

The parent/supervisor must have a high school diploma or its equivalent if students are not enrolled in a day school⁶⁰.

B. BETWEEN HEAVEN AND HELL. HOMESCHOOLING IN SPAIN

Constitution establishes a compulsory education until 16 years old, because children education is a right and a duty for parents. State law develops constitutional requirements with an intense control, however, Spain is a country divided in 17 regions with own statutes, for this system the cases before regional courts become interesting and diverse. Catalonia is an example of variety, art. 55 of Education Act⁶¹ allows education without attending school as an exceptional way of education and in special circumstances.

Homeschooling not being permitted in Spain, it is demanded in our society and has caused case law. This has not resolved the matter of conscious objection, constitutional Court as well Supreme Court have done statements very similar to Wisconsin v. Yoder in United States. Both Courts had to analyze the children best interest in a new religious movement called “Niños de Dios”.

Twenty two parents, members of this movement, lost custody of their children temporarily because they seek to raise the minors at home. Criminal charges against this movement were the main proof to consider the infants needed protection of social services in Sabadell, a town of Catalonia, in 1990.

A hard process took place before Constitutional Court⁶² and Supreme Court⁶³ that only made interpretation on a possible unfair decision of “Audiencia Provincial de Barcelona” when conceded the custody to those families again.

Courts lost the opportunity to construct an analysis on home education in reference to article 27 of Constitution mandatory of education at school and article 16 recognizing religious freedom.

Only one magistrate of Constitutional Court intervened to declare home education as unconstitutional because of religious freedom and right to educate the own children do not imply a freedom without restrictions when the child’s best interest is being degraded.

Supreme Court decision has a higher commitment with constitutional principles and fundamental rights, when resolves an argumentation of General Prosecutor discussing about the convenience of having children’ custody from these members of “Niños de Dios” movement.

This decision declares that constitutional limitations must be respected in a frame of guarantee for rights of parents to inculcate a religious and moral education to their children with a public cooperation. Wide criteria of interpretation could be applied among constitutional right of parents to educate their children according to their beliefs, and the compulsory education of children in Spain while existing diverse ways of educating children with different techniques and pedagogical educative methods like home education. This reasoning took place in a matter very confused with an opened sense of religious freedom and ways of educating.

Supreme Court had to study on education system as a matter of confrontation between constitutional restrictions and fundamental human rights when a mother was criminally accused in Granada⁶⁴ because of educating their children at home, and this option originated the loss of their three children’ custody. This Court admitted that minors should be educated at schools administratively created by official state system, but the choice of any different kind of education not provided by Education Act, was not a fact regulated by Criminal Law.

“Audiencia Provincial de Sevilla”⁶⁵ knew a case very similar to “niños de Dios” in Catalonia, when a father experienced the removal of his child’s custody. This individual chose to “Colonia Niño Sergio” as an institution supporting his son’s education and was accused of not to assume his parental obligations. This jurisdictional court decided that that choose an education according a religious o moral code different to the conventional cultural environment doesn’t show abandon but interest in children formation.

The situation was resolved otherwise when an allegation against a decision of Malaga District Court was refused by “Audiencia Provincial de Málaga” in 2005⁶⁶. That decision ordered the attending school of five children following the Magistrate Vicente Gimeno opinion, in 1994 Constitutional Case quoted above, who thought the children’ best interest is a compelling public interest on subjective parental rights.

The most recent decision in Spain comes from “Audiencia Provincial de Teruel”, dated on December 2009, judging about an offence of family abandon. The facts are in reference to parents practicing home education. The “Audience” does not declare the existence of a right to not attending school, but the choice of other kind of education as home education does not suppose to commit family abandon offence, or social risk for the minors.

Its decision makes some considerations on compulsory education at school and the obligation of educating. Education means to develop rational and moral skills of people, and this goal can be got by official state education or outside schools. A pedagogical alternative based in personal beliefs, is not a criminal action.

Nowadays, some members representing Free Education Association defended home school before Education and Culture Council in Basque Parliament on 23 April 2010.

IV. CONCLUSIONS

1. Home Education is a different way of educating the children, not an objection against education in itself.

2. This option of conscience has roots of ideology with diverse orientation, however, most of them have a religious basis. Religious objectors occupy a significant percentage of people who are protagonists of this more responsible and active parental education.

3. United States is the paradise of this phenomenon as well as is the kingdom of religions. It is a great country of diversity, in a complex territorial, legislative, judicial, executive and political system.

Objectors prefer states requiring no notice, but it is better an adequate legislation which protects objectors⁶⁷ and ensures their rights in the measure that assures the children best interest, a compulsory interest.

4. Finally, I adopt as mine the thoughts from Whitehead and Crow: “within the context of the compulsory education laws, the state must permit those parents who so choose to develop intellectual and religious areas in the lives of their children beyond those develop in the public schools.

The state, then, should encourage and protect the minority viewpoint that supports the alternative of home education. In should seek to promote rather than punish diversity and pluralism. This is the essence of American Constitution and particularly of the Bill of Rights point “sometime against the abuse of executive power, sometimes against the legislative, and in some cases against the community itself; or, in other words, against the majority in favour of the minority. That is what true freedom and choice are all about” ⁶⁸.

5. Spain is experiencing diversity from a few decades and exist a fear to change specially for religious reasons. Secularity in this country is releasing a rigid attitude towards religions.

Families objectors do not have hope to be recognized their objection as we have checked in some subjects taught at schools, for example, education of citizenship.

Constitutional Court and Supreme Court not giving a definitive solution to home education, their decisions have decided home education is not a crime to charge the parents, only an alternative of education under the protection in article 27 of Constitution, the right to educate their children according their own beliefs.