Homeschooling is NOT Imperiled in California

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.

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 absence, 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.

posted by Gabriel Malor at 05:12 PM

| Access Comments