Preference for Public School Over Homeschooling — and Maybe Private Schooling — Partly Because It Provides “Exposure to Different Points of View”?

Yesterday, the New Hampshire Supreme Court announced its opinion in In the Matter of Kurowski. The case (about which I blogged in 2009) involves a divorced couple’s dispute about the schooling of their daughter (who was 10 at trial). The mother, with whom the daughter primarily lives, is home-schooling the girl, but the father — who has joint decisionmaking authority with the mother — has long objected to this. The trial court accepted the father’s objection, and ordered the daughter enrolled in public school. Here’s an excerpt from the New Hampshire Supreme Court opinion:

Mother also contends that the trial court’s decision impermissibly preferred father’s viewpoint on the need for tolerance and diversity over her and daughter’s religious convictions, implied that “it was improper for [mother] to encourage [daughter] to adopt her religious beliefs,” and suggested that daughter needed to be exposed “to other religious views contrary to the faith of her parents.” She argues that the trial court “was wrong to opine that [daughter] may be too ‘rigid’ on ‘questions of faith[,]’ and too ‘vigorous [in] defense of her religious beliefs.’”

When applying the best interests standard to decide a parenting rights and responsibilities matter, the trial court may consider a parent’s religious training of his or her child solely in relation to the welfare of the child. The trial court can restrict a parent’s religious training of his or her child only if substantial evidence shows that the child’s welfare was in fact jeopardized by that religious training. We review the trial court’s order in light of the record to determine whether it decided daughter’s best interests regarding her school placement on impermissible religious grounds in the manner alleged by mother.

There is no doubt that mother’s and child’s religious convictions have been a pervasive part of the parties’ school placement dispute. Mother’s decision to home school was, at least in part, motivated by her religious convictions. Father’s decision to place daughter in public school arose, at least in part, from his concern that her home school experience did not allow her adequate exposure to differing viewpoints, including people who do not share her religious faith. In its order, the trial court referred to the evidence presented that involved mother’s and daughter’s religious beliefs, including: the GAL’s [Guardian Ad Litem’s] account of daughter’s interaction with her counselor in which daughter “appeared to reflect her mother’s rigidity on questions of faith”; the GAL’s concerns about the impact of daughter’s religious beliefs on her relationship with her father; the father’s desire to expose daughter to different viewpoints to decrease his daughter’s “rigid adherence” to her mother’s religious beliefs; and mother’s acknowledgement of the strength of her and daughter’s religious beliefs. The trial court also remarked that daughter’s strong adherence to religious convictions that align with her mother’s beliefs likely was the effect of “spend[ing] her school time with her mother and the vast majority of all of her other time with her mother.”

Although some of the evidence recited by the trial court had a religious context, the trial court remarked that when ruling on the school placement dispute, it had “not considered the merits of [daughter’s] religious beliefs, but considered only the impact of those beliefs on her interaction with others, both past and future.” When denying mother’s motion for reconsideration, the trial court further set forth the context in which it considered the evidence involving mother’s and daughter’s religion: “Evidence of some of the specific tenets of [mother’s] faith [was] only admitted because of statements and behaviors of [daughter] suggesting that [daughter’s] application of the logical consequences of those tenets was impacting her feelings toward her father and might impact her development in other areas”; and “The evidence about faith is only relevant because [daughter] was unhappy that her father does not love her enough to want to spend eternity with her by adopting her faith. The specific tenets of [mother’s] faith are not the subject of the Court’s inquiry.” The record supports these statements.

Specifically, evidence was presented that daughter exhibited difficulty interacting with others, particularly her father, when they did not agree with her religious convictions. For example, the GAL testified to a situation in which daughter became angry with her therapist when the therapist did not read certain religious materials provided by daughter and “closed down in the [therapy] session.” Father testified regarding some conversations he tried to have with daughter about her religious beliefs, and explained “if somebody doesn’t believe in [daughter’s] religion, if somebody does something differently from what she has been told by her mom is either right or wrong, based on this religion, she has a real, real hard time with it.” He also testified, “if there’s ever anything that goes against what she believes in, she doesn’t really know how to respond and she automatically thinks that somebody’s attacking her or somebody is going up against her,” and, “when you have a serious discussion with [daughter] … when you question her beliefs, or you present another idea to her about a religious belief, she doesn’t know what to do. She clams up. She turns away. You know, she just really can’t go any further.”

In its order, the trial court did not express a belief that daughter needed to be exposed to other religions that were contrary to or different from the beliefs of her parents. Instead, it considered the importance of daughter having the ability to openly communicate with others who have a different viewpoint on a subject matter, whether or not the topic is religious in nature. It also considered the benefits of group learning, group interaction, social problem solving and exposure to a variety of points of view. We reject mother’s contention that the trial court expressed disapproval of her actions in encouraging daughter to share her religious views. Rather, the trial court found that daughter’s firm religious convictions likely stemmed from the amount of time she spends with her mother, considering that daughter primarily resided with, and had been primarily educated by, her mother.

The trial court did not express disfavor regarding the religious nature of daughter’s beliefs or disapproval regarding her vigorous defense of her religious beliefs. Nor did the court criticize the merits of mother’s and daughter’s religious convictions. Indeed, as the trial court emphasized, its order did not impose any restrictions on either parent’s ability to provide daughter with religious training or to share with daughter his or her own religious beliefs. Accordingly, we conclude that the trial court properly considered daughter’s religious beliefs only in the context of her welfare when resolving the school placement dispute between the parents.

Mother next argues that the trial court erroneously applied the best interests standard by basing its decision upon an unsupported definition of the purpose of education. In its order, in identifying the parameters it utilized to resolve the parents’ school placement dispute, the trial court stated that “education is by its nature an exploration and examination of new things,” and that “a child requires academic, social, cultural, and physical interaction with a variety of experiences, people, concepts, and surroundings in order to grow to an adult who can make intelligent decisions about how to achieve a productive and satisfying life.” In denying mother’s motion for reconsideration, the trial court explained that it “intended to illuminate the difference between the experience of home schooling and the experience of public schooling, based on the evidence, rather than to suggest or apply a different educational standard.” Nevertheless, mother contends that the trial court, sua sponte, invented its own definition of the purpose of education without citing any legal authority, and that the definition is at odds with the purpose of public school education under RSA 193-E:2 (2008) and fails to account for the educational requirements for home school education under RSA 193-A:4, I (2008).

Without deciding whether the trial court was bound to resolve the school placement dispute in accordance with RSA chapter 193-E (2008 & Supp. 2010) and RSA chapter 193-A (2008 & Supp. 2010), we conclude that its references to the nature of education and foundational skills necessary for a child to become a productive and satisfied adult were not inconsistent with RSA 193- E:2 or RSA 193-A:4, I. RSA 193-E:2 sets forth the criteria for an adequate education provided through the public school system, including “[s]kills for lifelong learning … to enable them to learn, work, and participate effectively in a changing society.” RSA 193-E:2, VII. Also, the legislature declared that public elementary and secondary education shall provide “all students with the opportunity to acquire the knowledge and skills necessary to prepare them for successful participation in the social, economic, scientific, technological, and political systems of a free government, now and in the years to come.” RSA 193-E:1, I. The parameters the trial court enumerated to guide its decision do not in any way contravene RSA 193-E:2.

Turning to RSA 193-A:4, I, the statute defines home education to consist of certain academic areas, such as science, mathematics, reading and writing. As the trial court noted, however, the dispute between the parties in this case did not revolve around the relative academic merits of public and home schooling. Their dispute centered upon which academic experience would be in daughter’s best interests. We fail to see how the parameters set forth by the trial court to resolve the matter did not account for the definition of home education under RSA 193-A:4, I.

The factors the trial court considered to guide its school placement decision in light of daughter’s best interests are consistent with RSA 461-A:6, I. See RSA 461-A:4. The court’s order refers to such factors as group learning, social problem solving, exploration and examination of new things, and academic, social, cultural and physical interaction with a variety of experiences, people, concepts and surroundings, as well as securing foundational skills necessary to become a productive and satisfied adult. These criteria are in accord with the factors set forth in RSA 461-A:6, I, including “[t]he relationship of the child with each parent,” “[t]he child’s developmental needs,” and “[t]he quality of the child’s adjustment to the child’s school and community and the potential effect of any change,” as well as “[a]ny other additional factors the court deems relevant.” RSA 461-A:6, I(a), (c), (d), (l). We conclude that mother has failed to demonstrate that the parameters used by the trial court to guide its decision constituted legal error or an unsustainable exercise of discretion.

Finally, mother contends that the trial court erred because it presumed that public school is “automatically in a child’s best interests” and demonstrated a “per se” bias for public school over home school. Her argument is based, in part, upon her allegation that the trial court’s decision compelling daughter to attend public school was inconsistent with its factual findings and with the evidence regarding her home school experience. She points to the trial court’s findings that she was in complete compliance with home schooling laws, and its acknowledgement that daughter academically excelled in the home school environment and was well-socialized. She also contends that the evidence established that daughter could communicate and think effectively and critically, solve problems, and acquire skills for lifelong learning in the home school environment. We conclude, however, that neither its order nor the record reveals that the trial court exhibited a presumptive bias in favor of public schooling, and that the record establishes an objective basis sufficient to sustain its discretionary judgment.

With respect to her home school experience, there was evidence that daughter learned many of her academic subjects, such as math, reading, English and social studies, primarily by watching recorded lessons by herself on a computer at home, completing worksheets or workbooks and asking her mother questions as needed. Evidence established that there was no interactive quality between daughter and the person providing instruction in the recorded lesson. Testimony illustrated that her mother reviewed her work, engaged in some discussion with daughter, and replayed a recorded lesson as necessary. This process encompassed approximately three to three and onehalf hours per day, and there was evidence that daughter was “bored” with, and “lonely” in, this educational environment. Regarding her public school classes, there was evidence that daughter actively participated and adapted well.

Regarding the impact of daughter’s religious beliefs on her interaction with others, testimony showed that she would “shut down” and “clam[ ] up” when a person challenged or disagreed with her convictions. The GAL testified to a situation in which daughter became angry with her therapist when the therapist did not read certain religious materials provided by daughter and “closed down in the [therapy] session.” The GAL testified that daughter’s relationship with her father was somewhat tenuous as a result of their different religious beliefs. Father testified to several instances in which daughter exhibited difficulty discussing different points of view with him on issues involving her religious convictions.

The GAL testified that a public school environment would offer daughter opportunities to navigate experiences in both social and academic situations with others who have differing viewpoints, and learn to openly discuss differences without wanting to “shut down” or “close[ ] down.” The trial court noted the GAL’s conclusion that

[daughter’s] interests, and particularly her intellectual and emotional development, would be best served by exposure to a public school setting in which she would be challenged to solve problems presented by a group learning situation and by the social interactivity of children of her age.

It is not our role to calculate how much weight the trial court should afford specific evidence, second guess its decision on matters of witness credibility, or substitute our judgment for that of the trial court on a discretionary ruling. Rather, we review only “whether the record establishes an objective basis sufficient to sustain the discretionary judgment made,” and we will not disturb the trial court’s determination if it could reasonably have been made. The evidence concerning daughter’s experiences in her home school and public school settings, along with the evidence demonstrating the impact of her religious convictions upon her interaction with others, including her father, provide an objective basis for the trial court’s decision and we cannot say that it is unreasonable.

The trial court’s acknowledgement that daughter successfully participated in several activities outside of her home, performed well academically with home education, and is “generally likeable and well liked, social and interactive with her peers” does not render its decision that attending public school was in daughter’s best interests an unsustainable exercise of discretion. Nor are we persuaded that evidence demonstrating daughter’s abilities to, for example, communicate and think effectively and critically, establishes that the trial court unsustainably exercised its discretion. We emphasize that the trial court did not need to decide that home schooling was somehow deficient or detrimental to daughter in order to determine that her placement in public school was consonant with her best interests. Nor does the fact that the trial court reasonably could have reached a different decision based upon the evidence before it mean that its decision constitutes an unsustainable exercise of discretion. Cf. Appeal of Osram Sylvania, 142 N.H. 612, 617 (1998) (“Whether or not we would have reached a different conclusion, based upon the weight of the evidence, is of no consequence since we will not substitute our judgment for that of the [lower tribunal]” on a matter of judicial discretion).

We conclude that the evidence provides an objective basis sufficient to sustain the trial court’s discretionary judgment that it was in daughter’s best interests to attend public school for the 2009-2010 school year. Accordingly, mother has failed to demonstrate that the trial court’s decision constitutes an unsustainable exercise of discretion.

And here’s my thinking about the 2009 trial court decision, which I think applies to the relevant parts of the New Hampshire Supreme Court decision.

The decision is just about home schooling by one divorced parent, where the other parent wants the child sent to public school. But it would in principle also apply to similar disputes over private religious schooling (or private ideologically grounded schooling), since there too the other parent might complain that the schooling is too limited in the “points of view” to which the child is exposed. (Of course, some public schools might be quite limited in the points of view that they teach, and even in the points of view expressed by most students; but my guess is that few courts would be willing to say so.)

The broad principle might also apply beyond divorced families. To be sure, in practice American courts rarely intervene in the educational decisions of intact families, at least absent some evidence of significant abuse. Likewise, the legal standard for such intervention in intact families is much more demanding (requiring some showing that the parents’ approach risks causing imminent harm to the child, and not just a judgment that departing from the custodial parent’s approach would be in the child’s best interests).

But if the legal system becomes genuinely concerned about the supposed lack of “different points of view” to which a child is exposed, that concern should if anything be greater when the child is in an intact family — where both parents are likely to be exposing the child to the same viewpoint — than when the child is in a divorced family in which the parents have different viewpoints. At least in this case, the father could expose the daughter to viewpoints other than the mother’s (though that might be quite hard given the daughter’s pushback, which in turn seems likely to stem in large part from the mother’s greater time with the daughter). In an intact family that homeschools a child or sends the child to private school, the child might not get any “different points of view” from any trusted adult or even from other children. So the logic of this decision, if accepted, might well eventually carry over to decisions about intact families, too.

And the decision strikes me as constitutionally troublesome, whether implemented in broken families or in intact families. It may well be in the child’s best interests to be exposed to more views in public school — or it may well be in the child’s best interests to avoid the views that public school will expose her to. Those are not judgments that courts should generally make given the First Amendment.

That’s especially so since it’s hard to imagine courts actually adopting a facially supposedly viewpoint-neutral approach that “exposure to more viewpoints is better.” I take it that if a racist parent was complaining that the other parent wasn’t exposing their daughter to a wide range of viewpoints on the subject of racism, a judge wouldn’t consider that; likewise for a wide range of other views. Likewise, the judge seems to have been moved by the conclusion that the daughter was “rigid[] on questions of faith”; presumably if the mother were teaching the child less “rigid” views about religion, the judge would not have been as troubled (though some other judge might have been more troubled). Judges’ decisions that more viewpoints are better will almost always be based on an evaluation of what those viewpoints are likely to be, and what viewpoints the child is being taught.

This having been said, the court decision asserts that the parents — who do have “joint decision-making responsibility” — had never agreed on the public schooling vs. homeschooling question, and “reserved for the Court the issue whether Amanda would attend public school for the 2009-2010 school year, or continue to be home schooled by Ms. Voydatch.” Nor is the case like a normal parental speech dispute, in which, absent court action, both parents would be free to say whatever they wanted to the child. Here, a choice must be made between home-schooling and public schooling; the child can’t do both. (The child could of course go to public school and learn more at home, but that would obviously be different from a standard home-schooling approach.) Nor is there an obvious neutral principle that could be followed here, for instance the child’s likely academic success in either approach — it looks like the daughter is doing very well with home-schooling, but there seems to be no evidence that she won’t do roughly as well with public schooling in this district. Nor can one have a preference for continuing the child’s pre-divorce education; the parents had been divorced for pretty much the daughter’s whole life.

My inclination, though, is that a court should generally try to choose some neutral basis for the decision that would not require it to evaluate the merits of various viewpoints, or to evaluate whether the daughter needs exposure to more viewpoints of the sort she’s likely to get in public school. Even a preference for the choice of the primary residential custodian, however imperfect this might be, would at least keep courts out of deciding when a child’s religious views are too “rigid.” Government decisions about which schools children should go to, or what they should be taught, shouldn’t be based on judges’ views about which views are unduly rigid, or atheistic, or racist, or pro-gay-rights, or anti-gay, or what have you.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.