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Is Homeshooling Suddenly Illegal In California? No!

Regarding 08′ Court Decisions

Dateline: March 5, 2008 – Below are two links 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 (HSCCHNFamily 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 tolegal@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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