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THE A-to-Z of Homeschooling
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California Decision Vacated

Dateline: 4/29/08

By Debbie Schwarzer
Co-chair Legal Team
Legislative Chair
HomeSchool Association of California

In February 2008, an appellate court in Los Angeles issued a decision that interpreted California’s education laws in a way that was very unfavorable to homeschoolers. But that decision has been vacated, so California homeschooling is currently exactly the same as it was four months ago – legal.

Unlike many states, California does not have any laws specifically authorizing or regulating homeschooling. Like several other states whose laws do not mention homeschooling, California does have laws that say that children can meet the state’s compulsory attendance laws by going to private schools. Homeschoolers in California, like homeschoolers in those other states, complied with the compulsory attendance laws by enrolling their children in private schools that permitted teaching at home, and these schools could be ones operated by third parties or ones established by the parents themselves for their own children.

This manner of homeschooling was not, as many in the press have portrayed it, a “loophole.” California law does not have many regulations pertaining to private schools, and the ones that it does have can be met by parents forming their own schools and by schools that support homeschooling. The state’s Superintendent of Public Instruction, Jack O’Connell, was aware of this interpretation of law, and agreed that it was permissible.

The appellate court, however, stated in its February opinion that it did not believe that private schools could permit homeschooling. The judges seemed to think that the state legislature had clearly thought about homeschooling when it passed the private school laws and had decided that the only way to teach children at home was under a separate statute about tutoring, which requires a state teaching credential. The court, of course, could not change a law or pass a new law; only the legislature could do that. But it was interpreting the law in an unfavorable way.
The Governor, the Superintendent of Public Instruction and all of the statewide homeschool support groups have gone on record as stating that the court’s interpretation was incorrect. The statewide groups were preparing to appeal to the state Supreme Court for help in rectifying the situation, but in late March, the appellate court decided to rehear the case itself.

By court rules, whenever a court agrees to rehear a case, the opinion that it wrote the first time around is vacated, and of no further force or effect. What that means is that the original decision with its unfavorable interpretation of law has gone away, and no judge or government official will be able to take action using that opinion as authority. State law about homeschooling is now exactly the same as it was prior to the issuance of the February opinion. The Governor, the Superintendent of Public Instruction and the various statewide homeschool groups believe that the interpretation prior to that decision was legally correct, and homeschoolers can continue to teach their children at home in reliance on the law as previously understood.

The appellate court will hold a new hearing on the matter this summer. All of the statewide groups are, with the assistance of pro bono counsel, filing amicus briefs in support of the prior interpretation of law. Ann Zeise, owner of A to Z Home’s Cool, will be one of many parties signing this brief. A new decision is expected this fall.

We believe that the legislature is waiting to see what happens in the court system before taking any action. It is quite probable that if the court’s new decision does not change the interpretation of law that was in place prior to its original decision, the legislature will not take any action, as the Governor and the Superintendent of Public Instruction are both accepting and even supportive of that interpretation.

From Debbie Schwarzer
HSC Legal Team Co-chair

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