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Dr. Edward Peters 

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6 jan 2013

A Canon Lawyer Looks at Home Schooling


Edward Peters, "A canon lawyer looks at home-schooling", Catholic Dossier (Mar-Apr 1997) 19-21.

 

 

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Nearly ten years ago I wrote a small booklet entitled Home Schooling and the New Code of Canon Law (Christendom Publications: Front Royal VA, 1988). The biographical note on the back cover stated that my wife Angela and I then had one child. Well, today we have five children, and for our family these last 10 years have seen home schooling go from a principle that should work in theory to a reality that has proven effective time and time again.

If you detect between those lines a faint sigh of relief, you're right.

Where, I ask, are the home schooling parents, having chosen a educational routine completely different from that which was chosen for them by their parents (and their parents before them, and theirs before them), where are they who have not nursed somewhere within their hearts the nagging question that plagues and blesses every conscientious mother and father: are we doing the right thing? Well, it seems, we were doing the right thing, and it turned out to be the right thing for something like one million other children in the United States last year.

What most impresses me as a Catholic parent and lawyer, however, is the level of ecclesiastical protection that the parental choice to home school enjoys under the laws of the Catholic Church. Ten years ago, while working on the home schooling booklet, I read the Code's provisions on education as would a student, being struck primarily by the ways in which the canonical norms repeatedly reinforced and supported the rights of parents to make the fundamental decisions about their children's education. This orchestration I attributed to intelligent draftsmanship. Good ole canon lawyers.

Now, however, I read the same canonical provisions, provisions that I have applied in my own life and which I have assisted others in applying in theirs, and I see not simply intelligent drafting, but, may I say frankly, Dei digitum. Good ole Holy Spirit.

Canon lawyers know that the 14 principal provisions of the 1983 Code concerning education (see Canons 793-806) were, for the most part, settled upon by the middle 1970s, that is, at a time when home schooling was hardly being discussed in Catholic circles, at least, not much beyond some Catholic charismatic communities with ties to Evangelical Protestants. But the Holy Spirit was already seeing to it that the 1983 Code would be, as Pope John Paul II put it, "a great effort to translate conciliar teaching into canonical language." The rich affirmations the Second Vatican Council gave to the primacy of parents in matters of their children's education (located chiefly in the Council's Declaration on Christian Education, Gravissimum educationis, did make it into both the letter and the spirit of the revised Code of Canon Law.

How else do we explain, for example the quite deliberate decision by the revision committee working on this section of the Code to open the Church's own canons on education with the word "Parents" (Canon 793)? And deciding in the same breath to change the title of the entire section from "Schools", which it was under the 1917 Code, to less restrictive and indeed much more fundamental "Catholic Education"?

Lest anyone be tempted to write off these semantic changes as mere Roman word games, one has simply to read the whole of Canon 793, especially the phrase that declares the right of Catholic parents "to select those means and institutions through which they can provide more suitably for the Catholic education of their children..." Such unambiguous language is, I suggest, the Holy Spirit's way of answering a question that had not even been posed yet: How far will the Church go in recognizing the right of Catholic parents to choose the options which they feel will best serve their children's education? Apparently, quite far.

Leave it to canon law, moreover, to anticipate and avoid the conceptual errors that such clear thinkers as Mary Ann Glendon and Janet Smith, to name but two, have recently pointed out in the secular arena. These errors boil down to the excessive reliance on "rights language" in modern discourse. For, having enunciated the natural and ecclesiastical right of parents over the choice of means and institutes for their children's education, the Code immediately grounds that right in the vocational duties of parents and spouses. "Because they have given life to their children, parents have a most serious obligation and enjoy the right to educate them; therefore Christian parents are especially to care for the Christian education of the children according to the teaching handed on by the Church." (Canon 226 2). In directly discussing the effects of marriage, Canon 1136 states, "Parents have the most serious duty and the primary right to do all in their power to see to the physical, social, cultural, moral and religious upbringing of the children."

Ten years ago, I knew of no American bishop who had taken a position on home schooling. Today, several have. These responses range from benign indifference up to and including positive endorsement and praise. I predict that as the graduates of the home schooling movement advance successfully through life (many of the first home schooled students are now in graduate school or are beginning careers), we will see more emphatic ecclesiastical support for parents choosing to educate their own children.

Of course, there have been, for lack of better word, ecclesiastical skirmishes along the way, not so much with bishops, but with some of their educational establishments. As a member of a diocesan staff, I can well see how bureaucratic unfamiliarity with a massive grassroots movement leads at times to official hesitancy and occasional opposition. This is normal.

It has been my impression as an advocate or advisor, though, that most of these differences were resolved upon a measured explanation of these points: (1) the Church's rich tradition on parental rights and duties in educational matters; (2) the high compliance of home schooling material and content with approved Church teaching; (3) the obvious success of home schooling in almost every virtually context in which it has been tried; and (4) the willingness of parents to make full use of the Church's own procedures for the resolution of disputes. These procedures, of course, are not exhausted at the arch/diocesan level, but few cases I'm familiar with ever got that far. They didn't have to.

A decade ago, not one person in a hundred had heard of the information superhighway. Today, not only is the Internet an active presence in millions of American homes, but we have witnessed a simultaneous explosion in the number and quality of self-guided computer learning systems, all sorts of multimedia educational broadcast avenues, creative learning board games, and so on. The end of all of this is nowhere in sight, and yet each step taken down the path makes only more feasible the basic goals of home-based education. All the more prophetically, it seems, does Canon 793 speak of parental freedom of choice over educational means as well as institutions.

At the same time and despite the massive reductions in numbers of Catholic schools and their enrollments since Vatican II and despite the artificially high cost of Catholic education (I say artificially high mostly because of the steadfast refusal of civil government to ease the tax burden on parents using religious and private schools, despite their consistently better results), canon law still encourages, (well, sort of) bishops to open new schools (see Canon 802). This occurs so rarely, however, that it's a news event when it does happen.

In any case, probably at least for the next generation, most parents will still choose a school-based education for their children. Other parents might entrust some of their children to a formal school while educating others at home, and some parents will enter into cooperative programs with structured schools for certain subjects. Within this general situation of most parents utilizing, to some extent, a traditional school, canon law also encourages Catholic parents to make use of Catholic schools. Even here, however, the Code immediately stresses that what is of prior importance is the parental pursuit of a Catholic education for their children, by whatever means available (Canon 798).

When he promulgated the Code of Canon Law in 1983, Pope John Paul II wrote that "the Code is in no way intended as a substitute for faith, grace, and charisms ... in the life of the Church. On the contrary, the purpose of the Code is to create such an order in the Church which ... renders their entire development easier, both for the ecclesial society and for the individual persons who belong to it." (Pope John Paul II, Apostolic Constitution Sacrae disciplinae leges). Catholic parents are specifically graced by Christ to exercise the charism of teaching their children in accord with the magisterium of the Church.

One could hardly have expected, therefore, the Code of Canon Law to place juridical obstacles in the way of parents exercising their vocational charisms. To the contrary, the Code of Canon Law has taken great care to protect parental primacy in seeing to the education of children, whether that parental right and duty is legitimately entrusted to others, or whether it is directly exercised by those who will most immediately answer to God for the raising of their children.