Homeschooling is NOT Imperiled in California

Note: In addition to this post, please see here for a brief discussion of the constitutional right to homeschool.

Original Post:
A recent California Court of Appeals case has been making some waves as the precursor to the end of homeschooling in this state. Michelle Malkin, Susan Duclos of Wake up America, and Darleen Click at Protein Wisdom have all noted it and discussed the implications of the case with some degree of outrage. I admit, it sounds pretty bad the way the LA Times writes:

Parents who lack teaching credentials cannot educate their children at home, according to a state appellate court ruling that is sending waves of fear through California’s home schooling families.Advocates for the families vowed to appeal the decision to the state Supreme Court. Enforcement until then appears unlikely, but if the ruling stands, home-schooling supporters say California will have the most regressive law in the nation.

“This decision is a direct hit against every home schooler in California,” said Brad Dacus, president of the Pacific Justice Institute, which represents the Sunland Christian School, which specializes in religious home schooling. “If the state Supreme Court does not reverse this . . . there will be nothing to prevent home-school witch hunts from being implemented in every corner of the state of California.”

The ruling as described would effectively end homeschooling in California, and I agree that it would be an outrageous result. Fortunately, the LA Times misunderstood the case and that misunderstanding was carried over into the discussions of the bloggers listed above, who appear to have discovered the issue because they read the LA Times article or each other. (I am amused to discover that Memeorandum has aided the dissemination of an untrue meme.)

The short version: The LA Times got it wrong in the first sentence of their article. Parents without teaching credentials can still educate their children at home under the various exemptions to mandatory public school enrollment provided in § 48220 et seq. of the Cal. Ed. Code. The parents in this case lost because they claimed that the students were enrolled in a charter school and that with minimal supervision from the school, the children were free to skip classes so the mother could teach them at home. There is no basis in law for that argument. If only the parents had attempted to homeschool their kids in one of the statutorily prescribed methods, they would have prevailed.

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On the flipside, I go into more detail about the case and just where the LA Times went wrong. Though fun and probably helpful for homeschool advocates, the OUTRAGE over this case is based on a completely manufactured premise. But they and the LA Times should be admonished for unnecessarily scaring parents.

The case is In re Rachel L and a copy of the appellate court’s decision can be found here (PDF). The facts are not in dispute at this point and Susan summarizes them well:

The appellate court ruling stems from a case involving Lynwood parents Phillip and Mary Long, who were repeatedly referred to the Los Angeles County Department of Children and Family Services over various allegations, including claims of physical abuse, involving some of their eight children.All of the Long children were enrolled in Sunland Christian School, where they would occasionally take tests, but were educated in their home by their mother.

Background of this, via the Appellate ruling, shows that a Welfare and Institutions Code section 300 petition was filed on behalf of three minor children after the eldest of them reported physical and emotional mistreatment by the children’s father.

The Los Angeles County Department of Children and Family Services investigated the situation and discovered, among other things, that all eight of the children in the family had been home schooled by the mother rather than educated in a public or private school.

The attorney representing the younger two children asked the juvenile court to order that the children be enrolled in a public or private school.

The juvenile court held that even though the mothers’ teaching was “lousy,” “meager,” and “bad,” there is a constitutional right to homeschooling (that right either belonging to the parents or to the child; it’s not clear at this point). Before we go any further we should be clear that California has never recognized a constitutional right to homeschool children and no federal court has recognized a right to homeschool children. In fact, the U.S. Supreme Court has recognized the right of states to regulate child education because it is so crucial to the maintenance of “ordered liberty.” So the juvenile court is out in left field on this point.

Under California law, attendance at a full-time day public school is compulsory for all children between the ages of 6 and 18. Parents wanting to take their kids out of the public schools must do so under one of the exceptions provided by the California Education Code. For the purposes of home schooling they are: § 48222 Attendance in private school or § 48224 Instruction by credentialed tutor. (There are other exceptions for short-term child actors, the mentally gifted, or leaves of absences, but they are not appropriate for homeschoolers.)

So, generally, parents have three options for educating their kids in California: (1) public school; (2) private school; or (3) credentialed tutor. This is not as bad for homeschoolers as it looks. To be a private school in California, all the parent has to do is be “capable of teaching” the required subjects in the English language and offer instruction in the same “branches of study” required to be taught in the public schools. They also have to keep a register of enrollment at their “school” and a record of attendance. Once a year they have to file an affidavit with the State Superintendent of Public Instruction with things like their names and address, the names of the students and their addresses, a criminal background check (since we don’t want unsupervised felons teaching kids), and their attendance register. That’s it.

In the Longs’ case, they attempted to claim that their children were enrolled in a “valid charter school” and that the school was supervising the mothers’ instruction in the home. It is unclear from the court’s opinion, but it looks like the parents tried to argue that the children were enrolled in a public school (since all charter schools in California are public schools). But since they obviously couldn’t meet any of the attendance requirements for public schools*, the court also examined the question of whether the parents were credentialed. Since they obviously aren’t, the court kicked it back to the lower court to order them to “enroll their children in a public full-time day school, or a legally qualified private full-time day school.” It looks like the parents never bothered to argue that they were running their own private school in compliance with § 48222.

*Some homeschoolers attempt to twist the “independent study” provision for public school education in § 51745 into a form of generalized homeschooling and that may be what the lawyers were trying to do in this case. Unfortunately, that statute is quite explicit that independent study not take the form of an “alternative curriculum” to that provided by the public school and that it not replace any courses required for a high school diploma.

In sum: homeschoolers, TAKE A BREATH. You are not about to be criminally charged for choosing to educate your children at home, as the LA Times and the various commentators I mentioned above imply. You can still homeschool your kids, assuming that you can pass a criminal background check and aren’t totally incompetent. The lawyers for these parents and homeschool advocates all over the state are gleefully watching all the outrage this has stirred up, but I think they should be ashamed of themselves for terrifying the parents of homeschooled children.

We should all keep in mind that outrage is fun, but not necessarily harmless.

Those parents who are absolutely freaked out about this case and its implications should go here for more information on homeschooling your child under the private school exemption. I suggest you be sure and read numbers 12-14.

Oh yeah: I should note for the sake of completeness that there is a remedy issue in this ruling that probably makes a good argument on appeal (or at least an interesting one for remedies nerds), but that error does not impact the mistake made by the LA Times or my clarification of that mistake.


~ by Gabriel Malor on March 6, 2008.

9 Responses to “Homeschooling is NOT Imperiled in California”

  1. Thanks for the update, GM. Yea we all got a little bit excited at PW, not so much for the core contention of the ruling but the judges’ opinion that:

    However, California courts have held that under provisions in the Education Code, parents do not have a constitutional right to home school their children.

    As has been pointed out by a few others, the law is badly written and open to a wide range of interpretation.

    It should also be noted that the bringing of the lawsuit by “proxy” lawyer for 3 of the kids was related to an ongoing investigation into possible abuse. The lawsuit wouldn’t have been brought if the the state had developed any credible, actionable evidence that would have rsulted in removal. They did an “end run” to gain additional supervision of the kids throguht the public school.

    I’ve enjoyed your writings over at Ace.

  2. BJTexs, I suspect that the court emphasized the criminal penalties involved in this case not to scare all homeschoolers in California, but to emphasize to these parents (who sound like really shady people) that they need to get their acts together.

    Thanks for stopping by.

  3. GM

    IMHO the ‘private school’ exemption is fairly vague. And the wording of “persons capable” of teaching is an open door to those member of the teacher’s union who believe (and have the political clout) that only credentialed teachers are capable of teaching children.

    If the parents in this instance did not abide by the relevant statutes, the court could have just ruled on that without the far reaching language that (again, in my lay opinion) puts parents on notice that they have few if any rights when it comes to their children’s education and upbringing.

    While homeschoolers may not be directly in harm today, such a ruling is chilling.

    Bottom line, the state legislature must correct this.

  4. oh, btw at your last link FAQ, filing a private school affidavitt is no guarantee one can homeschool their child. It is at the discretion of the local school district and law enforcement.

    good luck on that one

  5. Verification by the attendance supervisor of the district is not “discretionary” in that the person could just refuse to do it. Children have a statutory right to attend private schools as long as the paper work is filed. The attendance supervisor may withhold verification only if the private school has not complied with the filing requirements. It is statutorily prohibited for the attendance supervisor of the district to condition the verification on evaluation, recognition, approval, or endorsement of the private school.

  6. […] CLARIFICATION Gabriel Malor brings the buzzkill on the furore. Under California law, attendance at a full-time day public […]

  7. Actually Gabriel, your interpretation of 48222 is incorrect. The code states that verification of a private school is not to be construed as evaluation, recognition, approval or endorsement of the private school. In other words, if they approve verification they are not endorsing the school. However, among the filing requirements that the attendance supervisor verifies is this statement the private school “shall offer instruction in the several branches of study required to be taught in the public schools of the state.” This together with the vague “persons capable of teaching” leaves the door open for the attendance supervisor to determine that the teaching does not adequately cover the branches of study required to be taught. That is a subjective opinion because they do not define what “offer instruction” means. Does that mean they simply teach math for example or does it mean that the math curriculum must be the same as in the public schools? It is not as clear as you would make believe.

  8. E.C. Code 44222 (Private School Exemption from the requirements of attendance upon a public full-time day school.)

    “Exemptions under this section shall be valid only after
    verification by the attendance supervisor of the district, or other person designated by the board of education, that the private school has complied with the provisions of Section 33190 requiring the annual filing by the owner or other head of a private school of an affidavit or statement of prescribed information with the Superintendent of Public Instruction. The verification required by this section shall not be construed as an evaluation, recognition,
    approval, or endorsement of any private school or course.”

    The code states that what is being verified is
    “that the private school has complied with the provisions of Section 33190 requiring the annual filing by the owner or other head of a private school of an affidavit or statement of prescribed information”

    Nothing is said about the verification of anything else. It truly is very vague.
    From the California Department of Education FAQ Question 18

    “Could you send me verification that you received my school’s Affidavit?

    No verification is routinely provided. Upon written request, a copy of your school’s Affidavit will be mailed to you. …

    However, the fact that a Private School Affidavit has been filed with the CDE is not evidence that the entity actually is a private school, or that the entity has been evaluated or approved by the state or any governmental agency.”

    The comment brought by Darleen (from CDE Question 13 – Is home schooling recognized in California as exempting a student from public school attendance?

    “Whether a home schooled child is attending a private school, … , is a decision made by local school districts and law enforcement authorities.”
    Answer – Has the home established itself as a private school, i.e. followed the E.C. 33900 and filed a private affidavit.

  9. Edit:
    E.C. Code 48222 not 44222, in beginning of post

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