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Is Homeschooling Suddenly Illegal In
California? No!
Dateline: March 5, 2008 - Below are two linka concerning the 2008 decision.
"In re Rachel L." decision - 3/5/08
The "In re Rachel L." decision handed down by the Court of Appeal of the State of California, Second Appellate District, in Los Angeles County, on Febuary 28, 2008, has become too controversial to ignore.
California Decision Vacated - 4/28/08
The In re Rachel L. decision handed down by the Court of Appeal of the State of California, has been vacated. California homeschooling back to normal.
Dateline: September 8, 2002 - This concerns an issue that is long past, but remains online as history.
Here is a statement that has been prepared by one of the attorneys
on the HSC legal team. Feel free to post it on your other lists.
by Debbie Schwarzer, HSC Legal Committee
Dear California Homeschoolers:
Many, many people have been writing to us about the communications
coming out from the CDE about homeschooling. Some newspapers
have also picked up on this and presented it as "news"
that homeschooling is now illegal in California. This is a standard
reply that we have developed, to save time (we are all volunteers
trying to raise and homeschool our own children); if it doesn't
answer all of your questions, please write.
Please relax. There has not been one single relevant change
to the education laws in California
in the last few years. What worked last year will still work
this year. Our understanding of how to homeschool in California
has not changed one bit, although how it is to be done, from
a paperwork standpoint, is changing. We have sent responses to
newspapers where we could.
What you need to understand is that personnel at the CDE change.
The original opinion, that families can't homeschool by calling
themselves private
schools, has been around a very long time. It then lay dormant
for a few years, and then the person who had originally put it
out returned to the CDE, and it surfaced again. Various other
people in the CDE decide to take up the charge, while others
who work there tell us they think homeschooling is fine.
The California Department
of Education has always taken the position that individuals
cannot transform their homes into a school by merely filing a
private school affidavit, also known as an R-4. While this is
technically correct, it is the position of all of the major homeschool
groups in California (HSC,
CHN, Family
Protection Ministries) and HSLDA
that any individual can establish a private school in their home,
for any number of students, by following the
requirements set out in the Education Code, and advising
the CDE that they have done so by filing a private school affidavit.
HSC even worked with one of the biggest and best law firms in
the state to make sure we were analyzing this correctly, and
they agree that the law clearly allows private individuals with
no business motive to open very small private schools. Attorneys
in the CDE do not believe that individuals are capable of meeting
all of the requirements for establishing a private school. The
CDE has often taken the position that individuals who are homeschooling
their children can only do so if they have a teaching credential.
They have also taken the position that a school must have a business
purpose. These arguments are not supported by the
California statutes applicable to homeschooling. While there
were two cases a number of years ago that might have supported
their position, they probably would not any longer. One case
was decided based upon the wording of a provision of the Education
Code that has since been changed, eliminating the problem (it
is now perfectly clear that the state has no duty, but also no
authority, to regulate private schools beyond ensuring that the
affidavits are filed). In the other case, the family did not
offer civics, one of the courses of study required to be offered.
This is obviously a simple thing to fix - make certain that your
documentation reflects that your school offers all of the required
courses of study (this doesn't mean your students must choose
to study it, just that you must offer it).
The latest flurry of activity came as a result of a memo by
the CDE advising the local school districts of the new procedures
for private schools to file private school affidavits. This memo
claims that:
"In California, "home-schooling"--a situation
where non-credentialed parents teach their own children, exclusively,
at home whether using a correspondence or other types of courses--is
not an authorized exemption from mandatory public school attendance.
Furthermore, a parent's filing of the affidavit required of a
private school does not transform that parent into a private
school. Therefore, those parents who home school their children
are operating outside the law, and there is no reason for them
to file an affidavit."
Of course, the fact is that if an individual establishes a
private school and does not file an affidavit, then the students
attending that private school are considered truant; private
school students are exempt from the compulsory education law
only if their school as filed an affidavit. Whether this was
intended as a trap or not, families MUST file their affidavits.
Of course, we want to question the motives of the CDE is sending
out this information time and again. The attorneys here at HSC
want to give them a shred of benefit of the doubt, namely that
these are employees who sincerely believe they are correctly
interpreting the law and believe it is their professional obligation
to enforce it. But even we have to wonder.
Because you might hear of other statements the CDE has made,
I will summarize the most popular. At various times in various
conversations or publications, they have asserted:
1. That a homeschooling parent needs a California teaching
credential. They don't. The statute says, very plainly, that
the teacher in a private school (meaning any private school,
large or small) must be "capable of teaching." It is
obviously a very vague requirement, but we generally believe
that anyone of reasonable intelligence and mental health who
can read and write in English is probably "capable of teaching."
In fact, teachers in the giant Catholic high schools don't have
to hold credentials, either. They have to be "capable of
teaching", and it is left to the private school administrators
to decide if they are.
2. That homeschooling isn't authorized in California. If
they mean by that that homeschooling isn't specifically permitted
by statute, they are correct. For whatever reason, the legislature
has decided not to pass any legislation dealing specifically
with homeschooling (and we are not encouraging this, given the
current climate of hyper-regulation). The word "homeschool"
doesn't appear in the Education Code. But just because something
isn't specifically authorized by statute doesn't mean that it
is illegal. There is no statute expressly permitting a parent
to hire a babysitter and go out to a movie, but it isn't illegal.
We say that it doesn't matter that it isn't expressly permitted.
Having your child attend a private school IS expressly permitted,
whether you also use the word "homeschool" to describe
what you are doing at your private school or not.
3. That the private school has to have 6 or more students.
It doesn't. The only reference to the number 6 has to do
with a clause saying that the state will compile a directory
of all private schools that have 6 or more students. There is
absolutely nothing saying that there is a minimum enrollment.
4. That the private school has to be operated outside of
a home and run as a business, including charging tuition. There
isn't a phrase anywhere in the Education Code to support that
one. This opinion might be a holdover from a case that was decided
a long time ago under a prior version of the private school statutes;
the issue of whether the school is commercially motivated or
not is completely irrelevant under the current statute.
The entire HSC board of directors, along with individuals
affiliated with CHN and Family Protection Ministries, attended
a California state
SARB (Student Attendance Review Board) hearing on Thursday,
August 15, 2002. At that meeting the CDE
attorney, Roger Wolfertz, advised the board and those of
us in attendance that the private school affidavits could not
be withheld from any individuals requesting them and that the
filed private school affidavits could not be used as a fishing
expedition in order to find students they thought might be truant.
We believe he correctly stated the law. As you will read below,
the state is establishing a new procedure for filing affidavits
online. We think this is good - it removes the county offices
from any role, and eliminates the possibility that misguided
employees at those offices will try to prevent families from
filing affidavits. Some people have expressed concern that the
online filing process, which allows use of databases, will make
it easier for counties to harass them. We think this concern
is misplaced. For starters, the counties always had the information
before, albeit in paper form. If they had really wanted to make
hassling families a priority, they already had what they needed.
Second, we hope they are paying attention to what Mr. Wolfertz
said: the affidavits cannot be used as a fishing expedition.
The major homeschooling organizations have all continued to
advise their members who do not want to join public
school independent study or charter
study programs or other
private independent study programs to establish
private schools and file private school affidavits under
the new procedures.
We would like to add the following advice for anyone thinking
of establishing (or continuing) a home-based private school.
- First, in all your dealings with the state, act in your role
as the administrator of a private school. Use letterhead and
sound professional. Use their language, and help them want to
help you. It might be best not to call, but rather to do everything
in writing, as you do not open yourselves to questions.
- Second, protect yourselves. Mail your affidavit by certified
mail, return receipt requested. This is powerful proof that your
affidavit was received, and is worth every penny. Use a cover
letter that sounds official. A simple "Enclosed for filing
on behalf of [name of school] is a copy of the Private School
Affidavit. If you have any questions, please do not hesitate
to call the undersigned at the above number" will work fine.
Many businesses, when filing important documents like this, send
an extra copy with a stamped, addressed return envelope (again,
look professional here) and ask in their cover letter that it
be file stamped and returned to the undersigned in the enclosed
envelope.
- Finally, and most importantly, keep in mind that you are
signing the affidavit under penalty of perjury. Perjury is a
criminal offense. Take it seriously.
Will filing your affidavit correctly protect you from a
claim by your local district that your children are truant?
No, it won't. We had to battle a number of problems last year,
and expect that there will be some this year. HSC is not a legal
services organization, but in the past we have sent a number
of letters and legal briefs on an "amicus" (friend
of the court) basis informing governmental officials of what
the law really says. In each case in which we have gotten involved,
the issue has gone away. We know that other statewide organizations
as well as HSLDA do the same and have a similar track record.
At best, the law is ambiguous, and at worst (from the government's
viewpoint), homeschoolers are right. Most district attorneys
don't have the time or energy to take on cases like that, when
there are murderers and drug dealers to prosecute.
We ask the homeschooling community to remain calm, at least
until we have more concrete problems. If it turns out that the
CDE is denying small private schools the ability to file affidavits,
we will have to act and will need your help. If it turns out
that many, many districts and counties are devoting resources
to going after homeschoolers for truancy, we will have to act
and will need your help. Until then, please do not get too excited.
This is only a new version of old news.
If you receive any communications from the state or your county,
other than letters containing basically the information referred
to here, we would appreciate your sending a copy to legal@hsc.org.
We would like to keep track of what is being said. If someone
comes to your door, our advice remains the same. Without a warrant,
they can't come in. Do not let them. If they are wondering why
your children are not in school, show them a copy of your filed
affidavit (or, if they come before the October 15 deadline and
before you have filed it, tell them you have a private school
and that your affidavit will be filed by the deadline). DO NOT
give them anything else. They are not entitled to "go behind"
the affidavit and attempt to verify the truth of the statements
you make. Not only can they not ask to see your curriculum, etc.
while standing at your door, they couldn't even get a subpoena
to see it. The state law is very clear that private schools are
beyond regulation. If the government doesn't like that, they
will have to try to get the law changed through customary legislative
processes.
Please write to us at legal@hsc.org
if you have additional questions. Also, visit our website periodically
at www.hsc.org, for up-to-date
information.
Debbie Schwarzer
HSC
Legal Committee
The HomeSchool Association of
California ("HSC") has several members who are
licensed attorneys in the State of California. These members
volunteer their time answering general legal questions that are
sent to them through the HSC website or e-list. This advice is
not intended to create a lawyer-client relationship or to constitute
legal advice. People who ask questions should always do their
own research and/or consult their own counsel.
Note that I am only claiming copyright to the formating and
links in this article. The text of this document is public domain
and may be forwarded and reproduced in relevant forums in a resposible
manner.
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-
-
The Homeschooling Book of Answers
101 Important Questions Answered by Homeschooling's Most Respected
Voices
by Linda Dobson While there are no "expert"
answers, you'll find this book has thoughtful suggestions. Paperback
- February 26, 2002
-
Homeschoolers'
Success Stories
How Homeschooling Shaped the Lives of 25 Adults and Teens
by Linda Dobson
Readers will meet a cross-section of confident, well-educated
men and women who have achieved success on a variety of levels
-- in their own way, on their own terms -- as they bring the
skills first grasped as homeschoolers into the world of higher
education, business, art, sports and more. (Prima Publishing)
-
- The
McGraw-Hill Homeschooling Companion
by Laura Saba, Julie Gattis
- June 2002
- This all-in-one manual covers the different approaches to
homeschooling as well as the specific methods for setting up
the home learning environment, including legal requirements,
supplies, and lesson plans. Individual chapters examine the stages
of homeschooling: what curriculum planning involves, the indispensable
tools for the home classroom, computer use, and tips and techniques
on teaching all the core curriculum requirements. Special features
include comprehensive treatment of standardized testing, state
by state; practical counsel on integrating homeschooling and
living in the outside world; 10 favorite homeschool suppliers;
websites; and homeschooling laws for all 50 states.
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