There seems to be a lot of litigation about home-schooling. After the California decision (see a post here), the Third Circuit has now weighed in with a decision involving Pennsylvania's regulation of home-schooling. (Here is the decision in Combs v. Homer-Center School District, which the Third Circuit decided on August 21, 2008.)
The decision is quite interesting. There is a fascinating discussion in the concurring opinion by Chief Judge Scirica. In that opinion, Chief Jusge Scirica addresses the parents' claim under Pennsylvania state law and concludes that the parents had not shown that the regulations violated a "specific tenet" of their religion because the parents had only cited general Biblical statements supporting parental control over their children's religious education. The parents could not cite a "specific" tenet of their religion prohibiting state review of their children's education.
On the federal issues, the court concluded that Smith controlled the free exercise issue. On the parental rights/substantive due process claim, the court concluded that parental right to control education did not extend to the type of claim the parents asserted in this case (the right to free from all reporting requirements and "discretionary" state oversight). The Court rejected a claim based on Yoder because the Pennsylvania requirements didn't threaten the families' entire way of life.
The court's treatment of the federal issues is in line with other treatments of parental rights issues, but this standard approach seems to underestimate the impact on parents and to be too willing to defer to state power.
Richard M.
Monday, August 11, 2008
On Friday August 8, 2008, the California Court of Appeals issued its decision in the home-schooling case. Here. The court removed the cloud over home-schooling by interpreting California law to permit home-schooling as a form of private school education. The court also made it clear that the decision of parents to home-school could be overridden (without violating the Constitution) to protect the safety of the children involved.
The decision seems a laudable effort to resolve, at least temporarily, the crisis in California that the earlier decison had threatened. Although I'd like to think about this a bit more, the constitutional discussion also seems sound, despite a few statements in the opinion that give a bit too much deference to state power. Even the strongest advocates of parental rights agree that the state may step in to protect the health and safety of children. Here, the parents who were carrying the banner of parental rights had been found, according to the published opinions, guilty of physical abuse and of a failure to protect one of the children from sexual abuse. The court of appeals ended up remanding the case and asked the lower court to consider whether the safety of the children required removing them from home schooling.
Richard M.
Friday, August 1, 2008
I just saw a reference to an article (Human Dignity and the End of Life) in America magazine (August 4, 2008 issue) by Cardinal Rigali and Bishop Lori. I am not sure if the article is available for free on America's website. The article is a response to previous America articles by Thomas Shannon and John Hardt on providing artificial nutrition and hydration to PVS patients. Shannon and Hardt, according to the article, "appear to misunderstand and subsequently misrepresent the substance of church teaching on these difficult and important ethical questions."
I think the current article by Cardinal Rigali and Bishop Lori commendably explains the Church's position on this issue and the errors in the Shannon and Hardt articles, about which we have blogged in the past. I am curious what people think about what seems to be a growing practice of the Bishops to issue statments of this sort. Since the implementation of Ex Corde, there hasn't been any real use of the mandatum and maybe this is a concerted (non-disciplinary) effort on the part of the Bishops to try to make sure that Church teaching is articulated clearly.
Richard M.
Thursday, July 31, 2008
Here is a recent article on rights of conscience in health care. The article deals with the draft HHS regs. One of the key issues involves the proposed definition of "abortion." The proposed definition states that an abortion is "any of the various procedures--including the prescription and administration of any drug or the perfromance of any procedure or any other action--that results in the termination of the life of a human being in utero between conception and natural birth, whether before or after implantation." The controversy is whether this definition is an effort to restrict the availability of "birth control." It seems that the Post article emphasizes the views of the critics of the HHS proposal on this point. I mentioned to the reporter that some medical authorities had redefined pregnancy as beginning at implantation rather than at fertilization, but that this change was not due to any new science on the issue. The reporter mentions, without any sense of irony, that a critic of the HHS proposal states that the HHS definition is ideologically based.
Even if there is room for reasonable disagreement on this point, isn't that the reason for the existing federal law that protects conscience in this area? If everyone agrees on what is a reasonable course of conduct, then we don't need protection for conscience.
Richard M.
