Home Schooling in Canon LawBENEDICT T. NGUYEN
As a husband and home-schooling father of four by vocation, canon lawyer by profession, and chancellor of a diocese by employment, I feel the need to defend the canonical right of Catholics to home school as an answer to the mistaken notion that home schooling is somehow not a proper option for Catholic parents.
The begetting and educating of children are intimately linked. One does not have to look very far in the teachings of the Church on marriage and family to find strong, repeated affirmations that parents have the innate right to beget and educate their children. The Second Vatican Council clearly teaches that marriage and conjugal love “are by their nature ordained toward the begetting and education of children” and that parents “should regard as their proper mission the task of transmitting human life and educating those [to] whom it has been transmitted” (Gaudium et Spes, 50). Since the very nature of marriage and conjugal love includes and is ordered toward procreation, parents have the right and obligation — based on the divine law, as manifested in the natural law — not only to transmit life to their children but also to educate that life that God has given them. Pope Pius XI, in his encyclical Divini illius Magistri, devotes considerable space to this right and obligation of parents.
In its Declaration on Christian Education, Gravissimum Educationis (GE) 3, the Vatican Council also forcefully reminds parents of this natural-law right and obligation to educate their children, teaching: “Since parents have given children their life, they are bound by the most serious obligation to educate their offspring and therefore must be recognized as the primary and principal educators.” Vatican II’s decree on the apostolate of the laity, Apostolicam Actuositatem (13), places a duty on Christian married partners “strenuously to affirm the right and duty of parents and guardians to educate children in a Christian manner.” Likewise, Pope John Paul II affirms the right and duty of parents to provide for the education of their children by calling the right not only “essential” but also “irreplaceable and inalienable and therefore incapable of being entirely delegated to others or usurped by others.” (Familiaris Consortio, 36)
parents have the duty to educate their children, they must also possess the right
to do so, particularly if they choose to do so personally. It would be absurd
in any legal system, whether natural or positive, to place a duty on a group of
persons without also allowing for the right of those persons to carry out this
duty. So much more would this be the case if the right and duty were primary and
inalienable, such as the right of parents to educate children personally.
As the chief legislative document of the Catholic Church, the 1983 Code of Canon Law is understood to be “a great effort to translate this same conciliar doctrine and ecclesiology into canonical language.” There is a “complementarity which the Code presents in relation to the teaching of the Second Vatican Council,” Pope John Paul wrote as he promulgated the new Code in Sacrae Disciplinae Leges. The Code puts into action the teachings of the Second Vatican Council and should be understood in light of the Council. Conversely, the Second Vatican Council should also be understood in light of the Code, which clarifies and puts into practice these same conciliar teachings. This is clearly the case when it comes to the rights and duties of parents in the education of their children.
Like Gaudium et Spes, Canon 1055, the foundational canon on marriage, teaches that the matrimonial covenant is ordered by its nature to the good of the spouses and the procreation and education of children. Again, education of the children is acknowledged as a fundamental end to which marriage is ordered. As Catholics who believe in the grace inherent in the sacrament of Matrimony, we must conclude that Catholic parents who take seriously the obligation of educating their children can, with the help of God’s grace, educate their children personally through home schooling. Canon 1134 clearly supports this notion in teaching that “a special sacrament strengthens and, as it were, consecrates the spouses in a Christian marriage for the duties and dignity of their state.” Therefore, availing themselves of God’s grace through the sacrament of Matrimony, parents are capable of fulfilling the duties of their state in life, including the education of their children. Of course, grace builds on nature, so parents must also avail themselves of the natural development of their intellectual and pedagogical abilities to be successful.
Flowing from this concept and basing itself on Gravissimum Educationis, Canon 226 §2 clearly re-affirms the duty and the right of parents in the education of their children, by declaring that since they have given life to their children, “parents have a most grave obligation and possess the right to educate them.” The only qualifier is the stipulation that Christian parents particularly must make sure that the Christian education of their children is according to the doctrine handed on by the Church. In other words, regardless of the means of education that parents choose for their children, they must make sure that no heterodox teachings are involved in this formation. Nowhere in this canon is there a limitation on the legitimate option of Catholic parents to home school, so long as this home schooling is done in accord with the doctrines of the Church.
By examining not only the text but also the context of Canon 226 (as is required for proper canonical interpretation, according to Canon 17), we see that Canon 226 comes under the section in the Code of Canon Law devoted to the obligations and rights of the faithful. The Code, like the Council, sees this right and duty of parents in the education of their children as fundamental, since it is based on natural law. From this it is not difficult to see that home schooling is a wholly proper expression of this parental obligation by mothers and fathers who prefer to undertake this educative role personally rather than delegating it to others.
Peppered throughout the Code are repeated references to the primacy of parents in determining the education of their children. This natural-law right and duty obviously involves the religious education of their children, but also extends to their physical, social, and cultural education as well, as Canon 1136 makes explicitly clear. Parents must look for the ways in which all of these aspects are provided for as best they can. If the parents decide to accomplish this formation through home schooling, then they must be certain, at least to the best of their ability, that this is the best way to fulfill the duty. On the other hand, parents must also keep in mind that if they choose to delegate this task to other educators, such as a school system, the delegation does not absolve them from their responsibility. They are still primarily responsible for what is or is not taught to their children. In either case, parents still must see to it that the means or institutions chosen for the education of their children provide for the proper physical, social, cultural, moral, and religious education of their offspring.
It is clear that Canon 1136 (along with Canon 793 §1, which is examined below) puts the right and the responsibility of determining what are the best means to provide for the education of children in the hands of the parents. The idea that Catholic parents must, under normal circumstances, enroll their children in Catholic schools in effect usurps this right of parents. This usurpation would be unacceptable according to the standards set by Pope John Paul in Familiaris Consortio. It seems highly unlikely that the Church, after repeatedly emphasizing the right and the primacy of parents in seeing to the education of their children, would then so limit this right as to say that it can only be fulfilled, under normal circumstances, in a Catholic school system. As the noted canon and civil lawyer Edward N. Peters wrote:
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.In fact, nowhere does canon law mandate that parents must enroll their children in Catholic schools. (Canon 798, which only seems to require this, will be examined below.) Rather, canon law requires parents to live up to their obligation and determine what is the best means by which a Catholic education can be transmitted to their children. If the parents can best accomplish this through home schooling, then home schooling is not only a legitimate means, it is a laudable labor of love for parents who are trying to take seriously their vocational duties.
Of course, this does not imply in any way that parents
who enroll their children in schools do not also take seriously their vocational
obligations. The point is that among the various ways, home schooling is a legitimate
and proper expression of the vocational duty of parents in the education of their
children even when other means are available, including the existence of
Catholic schools. Home schooling is not and should not be a decision that Catholic
parents make when they have no choice, but rather should be the fruit of a reasoned,
prayerful consideration of what is the most advantageous way in which each individual
child of theirs can acquire a truly Catholic education.
In nearly every document of the Church that addresses education, the primacy of parents is emphasized as a foundational concept. While some are quick to point to this concept to legitimize home schooling, others claim that this is an error since “primary” does not mean “only” educators. Certainly it is true that to recognize “parents as primary educators” does not prove that parents are the “only educators.” Those who claim that it does are simply in error. However, it is equally erroneous to claim that home schooling is illegitimate simply because “primary” does not mean “only.”
is a sequential and qualitative term, not a quantitative term. In other words,
the parents of a child are the first educators to whom the child is exposed, and
the most important educators. They indeed have a relational influence over the
child that cannot be replaced, but also, and just as importantly, it is they who
must make the determination of whether or not to delegate part of this child’s
formation to others — and, if so, to whom and how much. Thus home-schooling parents
are on firm ground to invoke the principle of “primary educators” not because
it allows them to be the “only” educators — it does not — but rather because it
affirms the fact that they are the most important educators who must decide the
course of the child’s education. They are “primary” because it is they who must
decide, prayerfully and reasonably, the proper means of education for their child
under Canon 793 §1.
While the now abrogated 1917 Code of Canon Law emphasized “schools” in its section on education, the current 1983 Code of Canon Law employs a more general “Catholic Education” as its focus, with “schools” being among the elements considered under Catholic education. Many canonists have pointed out that this was no accident. During the revision of the Code of Canon Law, the revision committees deliberately chose this broader title of “Catholic Education,” fully knowing the significance of this change. Catholic schools, though undoubtedly vital in the life of the Church in the modern world, are not seen as the only means to foster Catholic education, but rather are among the means that foster Catholic education. In fact the Code, wanting to be absolutely clear on this point, saw it necessary to include an entirely new canon to emphasize this point:
Among the means to foster education, the Christian faithful are to hold schools in esteem; schools are the principal assistance to parents in fulfilling the function of education. (796 §1, emphasis added)If any doubt still exists as to canon law’s primary focus, the very first word under the first canon under the title of “Catholic Education,” canon 793 §1, makes it clear: “parentes.” Canon 793, before examining the role of schools or pastors or even bishops in Catholic education, begins the section with a forceful reminder: “Parents and those who take their place are bound by the obligation and possess the right of educating their offspring…” It goes on to declare in no uncertain terms that:
Catholic parents also have the duty and right of choosing those means and institutions through which they can provide more suitably for the Catholic education of their children, according to local circumstances.Under this canon, the right of Catholic parents to opt for home schooling as the means to provide for the Catholic education of their children is clearly protected. The canon declares that Catholic parents have the duty and the right to determine not only which institutions can help to provide for their children’s Catholic education, but first and foremost, which means are the best means by which to accomplish this task. Catholic parents are well within their canonical rights to choose the institution of the family instead of the institution of the school to achieve this goal. Pastors of souls should not be offended when parents choose home schooling to provide for the Catholic education of their children. Rather, they should feel proud that their teaching and pastoral leadership have fostered parents who take their Catholic faith and their vocational duties — especially the Catholic education of their children — seriously enough to make the often difficult decision to home school.
Many times, the decision by parents to see personally to the Catholic education of their children is misunderstood to be a determination that a parish or diocesan school is “not good enough” or “not Catholic enough.” In response to this perception, the objection is sometimes raised that Catholic parents do not have the right to decide whether a school is “Catholic” or not. This is only for the competent ecclesiastical authority to decide. However, this charge only confuses the issue. Whether or not a Catholic parent can formally determine the Catholicity of a school is not the issue. Only the competent authorities, referred to in Canon 803 §3, can determine this. I would submit, however, that this is not what is going on canonically. Home-schooling parents are not determining whether a school is Catholic (they do not have the canonical right to do so), but rather they are determining what is the best means by which they believe their children can attain a Catholic education. In other words, they are not making an official determination about the school per se, but rather they are discerning whether or not their children would best receive a Catholic education through the means of a particular school. The determination concerns what is best for the children, not for the school. Under Canon 793 §1, we see that it is not only the parents' right, but their duty to make that determination.
Just as parents do not have the power to designate what is a Catholic school
and what is not, pastors do not have the canonical right to decide which particular
means are the best means for a particular child to receive a Catholic education.
The duty and the right to determine which schools are Catholic schools lie with
the competent authority, usually the bishop. (cf. can. 802 §1 and 803 §1) The
duty and the right to arrange everything so that the faithful can have a Catholic
education belong to pastors of souls. (cf. can. 794 §2) But, the duty and the
right to determine which means are the best means for a particular child
to receive a Catholic education lie properly with the parents of that child. The
idea that Catholic parents do not have the right to choose home schooling as a
legitimate means for the Catholic education of their child seriously goes against
the norms of Canons 793 §1 and 1136.
Opponents of the right of Catholic parents to home school sometimes cite Gravissimum Educationis 8 as (in the words of Father Stravinskas) an “eminently clear and unnuanced norm.” Their implication is that if you are a Catholic parent, you may not do anything other than send your children to Catholic schools, wherever and whenever a Catholic school exists. However, a closer reading of Gravissimum Educationis 8 shows that the wording is not absolute; it includes the phrase "quando et ubi possunt” — "when and where possible.”
When would it not be “possible” for parents to send their children to a Catholic school? Logically speaking, parents might find it impossible either physically or morally.
When there is a physical impossibility, such as distance or geography, Catholic parents obviously do not act contrary to Gravissimum Educationis if they choose to home school. Catholic parents must examine carefully all the means of education available and make the appropriate choice for their children, keeping firmly in mind their duty to provide a Catholic education. Certainly, if no Catholic school is available, home schooling does not violate the Council's norm.
Similarly, where there is a moral impossibility, Catholic parents who choose to home school do not act contrary to Gravissimum Educationis. If Catholic parents — taking seriously and prayerfully their right and duty to provide the best means for the Catholic education of their child — honestly come to the conclusion that home schooling would be the best for their particular child, they would be acting contrary to their consciences to choose another means. Canon law not only allows but also requires that they make this prudential decision; to act otherwise would be a violation of their consciences and thus present a moral impossibility.
Another factor that Catholic parents must consider under
moral impossibility is cost. They must determine whether the Catholic school is
affordable for their family, and indeed whether it would be the best use of the
resources available to provide for the Catholic education of this child. In this
regard, the bishops, dioceses, parishes, and pastors who work diligently to make
their Catholic schools affordable are to be commended. However, their efforts,
even if they are successful, do not absolve Catholic parents from the important
prudential decision that they must make.
Furthermore, the view that Gravissimum Educationis absolutely requires parents to send their children to approved Catholic schools, regardless of the circumstances, overstates the case. Small academies, private schools, and schools directed by Catholic groups or movements would also be off limits, if they were not designated as official “Catholic schools” by the local ordinary. Under the Rogers-Stravinskas-Hettinger view, enrollment in such a school would also be forbidden by canon law, regardless of whether or not the school did in fact provide a Catholic education. The all-important factor under the Rogers-Stravinskas-Hettinger view is whether or not the school is designated by the bishop as a “Catholic” school. If it is, then Catholic parents must send their children to them, regardless of other considerations; if no, then they are forbidden to do so. However this is not the criterion employed by Canons 793 and 798. It is the reality of a Catholic education, not merely the reality of a Catholic designation, that is the controlling criterion for these two canons. It is clear from the text of Canon 803 §3 (“Even if it is in fact Catholic…”) that canon law acknowledges the existence of schools that are in fact Catholic but not formally designated as such.
How then should we understand Gravissimum Educationis 8? Once again, the Code of Canon Law provides the proper understanding and juridical expression of this Vatican II principle. In Canon 798, which takes as its source Gravissimum Educationis 8, we find:
Parents are to entrust their children to those schools which provide a Catholic education. If they are unable to do this, they are obliged to take care that suitable Catholic education is provided for their children outside the schools.At first glance, this canon seems to be making a blanket statement that Catholic parents must make use of Catholic schools only. However, once again a closer examination shows that this is not the case. It is not the “Catholic school” per se to which the parents are to entrust their children, but rather “schools which provide a Catholic education,” whether they be designated “Catholic” or not. The focus is not on the Catholic school but on the Catholic education.
This is also emphasized two canons prior, in Canon 796 §1, where the Catholic school is explicitly referred to as “among” the means that foster education. The concern of Canon 798 is not that parents send their child to Catholic schools, but that parents must provide their children a Catholic schooling. Canon 798 goes on to say that the inability to do this, due to physical or moral impossibility, not only warrants the possibility that parents should provide for this Catholic education elsewhere (such as through home schooling) but creates an obligation for them to do so.
Of note also is the language of Canon 798. In the Latin (the only official language for the Code of Canon Law), it does not use the construction “parentes debent” — “parents must” — which would be the strongest obligatory language in canonical usage. Rather, it uses the subjunctive construction “parentes concredant” — “parents should entrust” — which carries a lighter shade of recommendation. Thus Canon 798 is an exhortation and not an absolute mandate.
It is important to note also that Canon 798, if it were interpreted as a mandate, would seriously limit the exercise of a parental right and thus must be subject to strict interpretation under the requirement of Canon 18. When one applies a strict interpretation to Canon 798, it is simply impossible to change an exhortation for parents to provide a Catholic education to their child into a mandate for parents to send their child to a Catholic school.
Any interpretation that sees Canon 798 as an absolute
mandate would render Canon 793 §1, in particular, meaningless. Catholic parents
— who are said in no uncertain terms to possess the duty and the right to determine
the means of providing for the Catholic education of their child — would mysteriously
lose this right. Why would the Church go to such great lengths continually to
emphasize the right and duty of parents to determine the proper Christian education
of their own children, only to legislate that the only way this can be done is
through the neighborhood parish school? This would also put the Church in the
hypocritical position of demanding from the state a true freedom for parents in
the choice of means and schools, on the basis of natural-law argumentation, while
absolutely denying this natural-law right when it comes to home schooling.
What does Rome think on this issue? Does the Holy See think that parents are well within their canonical rights if they choose to home school their children? The question has been addressed by Rome since 1988.
In 1988, two Catholic families contacted the Holy See with a grave concern regarding the use of the Benzinger Family Life Program and the New Creation Series for Catholic education in human sexuality. The Pontifical Commission for the Family (PCF) responded, informing the families that the two programs in question were under investigation. It then, in clear terms, urged the parents that until the results of the examination are available:
…as parents, you [should] exercise your right, recognized by the magisterium of the Church, to teach your own children either by yourselves or by another person or persons of your choosing.” (emphasis added)
Note that the PCF declares clearly that the right of the parents to decide to teach their own children personally is a right that is recognized by the magisterium of the Church.
Some may argue that this letter addresses only a particular situation where dubious texts were under investigation and thus does not legitimize the option to home school. Though this argument is stretching a bit, it might be credible had the PCF stopped with just this one letter. However, the same Council again addressed the issue in a response to another inquiry regarding the role of pastors in the education of children, and this second response clearly defined its view of home schooling.
In this second letter, the PCF first reiterates the norm found in Familiaris Consortio: that the right and duty of parents to educate their children is essential, original and primary, irreplaceable and inalienable. Quoting Canon 226 §2, the letter underscores the principle that since parents have given life to their children, parents have the most serious obligation and enjoy the right to educate them. Then, giving the proper interpretation of these rights, the Council cites the canons on Catholic education, stating:
It is in the light of these canons [226 §1; 774 §2 and 793 §1] that the rights and duties of ecclesiastical persons are to be interpreted. These persons are to assist the parents in fulfilling their sacred obligation and in executing their sacred right, not to take them over. (emphasis in original)Far from stopping at theoretical principles, the PCF goes on to apply the principles to the concrete question of home schooling. Nowhere does the PCF state that the Church requires parents to send their children to Catholic schools, whether in Canon 798 or Gravissimum Educationis 8 or anywhere else. On the contrary, it strongly and clearly states:
The role of the pastor, therefore, is to give a service of assistance by providing the parents with the means to form their child. The parents, however are not obliged to accept this assistance if they prefer to exercise exclusively their obligation and right to educate their own children. This is a natural right, and is not altered by the right of the Church. E.g., cc. 793, 914. (emphasis added)There is no doubt that the PCF sees no canonical obligation for parents to make use of parish sacramental programs or even Catholic schools if, after a reasoned and prayerful consideration, parents decide to undertake the obligation of educating their children themselves. This right of parents is perfectly in line with canon law, and indeed is protected by canon law. Recall that Canon 796 §1 states that schools are the principal assistance to parents in fulfilling the function of education. As the Pontifical Council underscores, parents are under no obligation to accept this assistance.
The PCF leaves no ambiguity, directly addressing the relationship of this right and obligation of parents with regard to the Catholic school, and not just catechetical instruction:
In times past, parents were only too happy to be assisted by the Catholic school system in the formation of their children. Now, however, this is no longer the case in many a diocese where Catholic schools are permitted to use certain catechetical texts which, though bearing an imprimatur, are gravely deficient in following the magisterium.Following the norm of Canon 226 §2, the PCF then reminds parents that should they elect to undertake their children’s education personally, it should be done following the teaching which is handed on by the Church.
In the end, the claim that canon law forbids the option of home schooling under normal circumstances does violence to canon law itself by misreading some canons, dismissing other canons or rendering them meaningless. Home-schooling parents must remember that they are to hold schools in high esteem (cf. 796 §1) and to support the Catholic schools in whatever ways they can, proper to their situation. They also must keep in mind that they indeed do belong to a larger community of the Church as manifested in the parish and the diocese. However, these obligations in no way preclude the right of Catholic parents to choose home schooling. Neither Vatican II nor canon law forbids the right of parents to undertake personally the Catholic education of their children. On the contrary, the canonical laws of the Church protect this right.
Benedict T. Nguyen. "Home Schooling in Canon Law." Catholic World Report (April, 2004): 52-57.
This article is reprinted with permission from Catholic World Report.
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Benedict T. Nguyen is the chancellor of the Diocese of La Crosse, Wisconsin, where he also serves as Defender of the Bond before the diocesan tribunal.
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