The recent flap over a California court’s decision that threatened the (assumed) legality of homeschooling in California has now subsided due to the decision being vacated.

However, the issue will doubtlessly be a newsworthy item for a while, as the case is being reheard. In order to prepare for the next round of stories, read Joseph Knippenberg’s analysis of the situation in First Things. Of particular interest is his conclusion:

Nevertheless, there’s a lesson here. A state Department of Education or local school board determinedly hostile to homeschooling could pursue children as truants and file criminal complaints against the parents. And homeschoolers who sought refuge in the courts would have to rely on judges who substituted their sympathetic judgment for a strict reading of the law and a due deference to politically responsible administrative authorities.

In the circles in which I move, we usually call such judges “liberal judicial activists.” Ironic, isn’t it?

In the end, there’s no good substitute for a law that explicitly acknowledges and civilizes the right of parents to educate their children at home, subjecting homeschooling to reasonable regulation to see that children are prepared for productive lives as citizens. I have no doubt that the vast majority of homeschooling families could produce results that are more than satisfactory.

I also have no doubt that a law generally providing for homeschooling—religious or secular—is preferable to an arrangement that requires judges or educational administrators to examine a family’s religious beliefs in an effort to determine whether they justify a free-exercise exemption from compulsory attendance laws. More than anything else, we don’t want access to legal rights or privileges dependent upon a secular official’s theological or doctrinal determinations. That sounds too much like establishment.

My advice to California homeschoolers is to return to the first principles of republican self-government. That means recurring first to the politically responsible branches and above all to the legislature. Make the case for amending California’s compulsory education law to accommodate the rapid growth—in the state and across the nation—of homeschooling. Build coalitions. In the face of likely opposition from teachers’ unions, it won’t be easy. But think of it as a lesson in active and responsible citizenship. Your kids will appreciate it.

Knippenberg’s analysis is exactly right. The situation is ironic in that conservatives (rightly) lament liberal’s use of the court to further their agenda (see: Roe).

However, this is one situation where conservatives would do better to examine the plank in our own eye, laud the decision of the courts as a careful and responsible interpretation of California state law, and then proceed to flex–or build–our political muscle in changing the law.

But political activism does not seem to be conservative’s natural territory. Rather, the immediate reaction to this case was to decry judicial activism, only to proceed to engage in a court fight (another instance of conservatives sacrificing careful legal interpretation for political ends). The response has made me wonder whether years of decrying judicial activism has implicitly given the courts a pre-eminent position in the conservative mind, such that other routes of governance are chosen only when the court fight is exhausted.

Of course, it is easier and decidedly less risky to fight a battle in the courts than to fail to win enough votes in an election. The former can be done by a few lawyers, while the latter involves political organization. Given the potential upside, it’s no wonder conservatives chose to pour resources immediately into the courts, rather than legislation.

We need to take steps to examine the political plank in our eye. The Constitution and the courts are not means to our conservative ends–we are conservatives only insofar as we honor the rule of law as it is written, and hold all judges to do the same.

See also:

The California Homeschooling Crisis

The Political and the Constitutional

The Irony of Non-Originalist Conservatives

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Posted by Matthew Lee Anderson

Matthew Lee Anderson is the Founder and Lead Writer of Mere Orthodoxy. He is the author of Earthen Vessels: Why Our Bodies Matter to our Faith and The End of Our Exploring: A Book about Questioning and the Confidence of Faith. Follow him on Twitter or on Facebook.

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