The Royal “We”: Activist NJ Court Tries to Legislate Homeschooling Policy
New Jersey judges who legislate from the bench are giving Massachusetts judges (and German jack boots) a run for their money. In a troubling divorce case last week, a Newark family court judge ordered penal charges against a mom merely because she home schools her children, with no evidence of neglect or even of poor performance, and even though New Jersey law explicitly protects the right to home school free from government interference.
The court’s opinion is a judicial temper tantrum. The judge wails that New Jersey law doesn’t fit his idea of what the law should be. Not only does New Jersey not require government monitoring and testing of home schoolers, the state gives public schools no legal authorization to do so (despite attempts to change the law).
But to an activist judge, clear law is no obstacle. The court is “shocked” (shocked!) that state law prohibits government meddling in homeschooling. “In today’s threatening world, where we seek to protect children from abuse, not just physical, but also educational abuse, how can we not monitor the educational welfare of all our children?” Note the collective “we” (or, if you prefer, the royal “we”). No matter that “We the People” have spoken through their elected representatives in Trenton. No matter that the values imposed by the court just happen to be those held by elitists in nearby Manhattan. “We” could not conceivably tolerate a system that disagrees with this judge. The court’s opinion seethes with contempt for parental primacy in education, for large religious families, and for the democratic process itself. Instead of legal reasoning, the court disgustingly showcases the prospect of children “found unfed and locked in a putrid bedroom.”
Thus the edict from on high: “it is necessary to register [home schooled] children . . . and to monitor that their educational needs are being adequately nurtured.” But state law doesn’t provide for registration and monitoring, so what’s an activist judge to do? Well, state law does allow school districts to haul parents into court under state penal law if credible evidence exists that their children’s education is improper. Presto! Order the local school district to charge the mom with violation of penal law! Never mind that the school district is not a party to this divorce proceeding. Never mind that “[t]he mere fact that a child has been withdrawn to be home schooled is not, in itself, credible evidence of a legal violation.”
Never mind that “[t]he [truancy] law was made for the parent who does not educate his child, and not for the parent” who homeschools. State v. Massa, 231 A.2d 252, 256 (N.J. Super. Ct. Law Div. 1967). Never mind the absence of any specific evidence that these children were faltering or delinquent, much less abused, and that in the absence of similar evidence the “best interests” of the child do not justify an order to change schools. Levine v. Levine, 731 A.2d 558, 563 (N.J. Super. Ct. App. Div. 1999). This judge disagrees with state law, so state law means what he says it means.
The opinion reads like a speech on the senate floor, and the court’s “reasoning” would apply to any New Jersey home schooled family, in any situation. It can seem distant when we hear news of police raiding homes in Germany and abducting home schooled children, but in our small world of judicial oligarchy and broken families, Germany is not so far away after all.