David and Goliath Revisited – Will California Outlaw Homeschooling?

Homeschoolers across the country were pleased to see another Scripps Spelling Bee Contest won by one of our own. In fact, all three top place finishers are homeschoolers. But in Alameda County, California, where one of the runners up calls home, the pleasure was short-lived, indeed.

The legality of independent homeschooling, and therefore homeschooling itself, is being challenged by the Berkeley Unified School District. This is a serious situation for four families who were involved in a recent truancy hearing even though they are either enrolled in a home based private school or in a private Independent Study Program. The families are complying with California Education Code, which clearly states that private schools are not regulated by any government agency in California. They have been requested to supply attendance records and curriculum information as of May 31but have declined to do so, supplying only evidence that they have enrolled their children in private schools as prescribed by California Education Code section 48222. This case has been referred to the District Attorney for possible prosecution of the children for truancy in juvenile court, where the bright light of public scrutiny is not allowed to shine, and possible prosecution of the parents for contributing to the delinquency of a minor.

"The families are acting in accord with thousands of other families in California. They are acting consistent with a reasonable interpretation of statutory law," said Attorney William Rogers, who is representing the four Berkeley families pro bono. "The battle is shaping up. The Berkeley public schools will be on trial as well as homeschoolers who have been unjustly singled out due to their attempt to act on their freedom to find the best education for their children."

This is not the only challenge to homeschooling in the past few months. In San Leandro, also in the same county, one family who removed their child from public school was threatened with a truancy investigation unless they enroll in the public school ISP. The school district office, using taxpayer money to pursue law-abiding families, has retained a law firm to back up their claim that homeschoolers establishing home based private schools are truant. Earlier this year, San Leandro's harassment of another homeschooling family resulted in the mother being pepper sprayed in front of her 10 year old son during her arrest. Also in Berkeley, Child Protective Services took custody of twin boys from a single mother for the offense of "isolation due to homeschooling." In Los Osos, in San Luis Obispo County, a single mother on welfare has had her right to homeschool threatened despite the child's attendance and successful record at the local community college.

Clearly, school district bureaucrats are increasing the pressure on homeschoolers in an attempt to restrict independent homeschooling.

You may wonder how school districts in California can accuse homeschoolers of truancy when homeschooling is legal. Here is a nutshell explanation of a rather complicated legal issue.

California does not have a homeschool law. In fact, the term homeschool is not found anywhere in the Education Code. The Code does, however, outline the procedure for establishing a private school, which involves annually notifying the state that the private school is operating, maintaining various records and offering a specified minimum course of study. Further, the Code does not confer the authority on any state agency to regulate private schools. About 20 years ago, parents reading the Education Code reasoned that they could open private schools in their own homes. Nothing in the law forbids it. There is no minimum size for a private school; there are no stipulations on familial relationships between teachers and pupils. What school could ever be more of a private school than a home based one? By following the Code, any family, not just those who can afford a tutor or who have a parent who is a certified teacher, can escape the tender mercies of the public schools.

State and local education bureaucrats, threatened by their loss of control over homeschooling families, immediately, and have consistently ever since, lied about what the law says with regard to homeschooling. Showing themselves to be the bullies they are, they threaten a small number of the most vulnerable families every year – welfare recipients, single mothers, parents embroiled in custody battles – people who generally lack the knowledge and wherewithal to fight off government funded harassment. Usually these families either give in by sending their children back to public school, or move out of the county. But the bureaucrats have not challenged the legality of home based private schools in the courts, knowing that their position is fallacious and they may very well lose, setting a precedent they must avoid – an unequivocal declaration of the legality of independent homeschooling.

They have not challenged home based private schools until now, that is. Berkeley Attendance Director Alex Palau has said that they want to make this a test case, presumably to outlaw independent homeschooling statewide.

Alameda County Office of Education spokesman Jan Passama was quoted as saying, "We all have different feelings as to whether homeschooling is legal or not." This statement reveals the utter corruption of a bankrupt education establishment. In the land of the free and the home of the brave, it is not what the law says but what bureaucrats feel that triggers the full power of the state to come crashing down upon homeschoolers' heads. In the Soviet Union, everything not explicitly allowed was denied. I thought we lived under a different system of jurisprudence here.

The Great Shell Game

If you think that Alameda County must have showcase schools, allowing them the luxury of being able to spend precious time, money and effort on pursuing several thousand homeschoolers, you are dead wrong. Alameda County schools are among the worst in the state, 23 having been enrolled in the State's Immediate Intervention for Underperforming Schools Program for 1999-2000. Does it make sense to squander money harassing law-abiding parents while the public schools are so dismal? Only when it is realized that, just like a huckster running a shell game, Alameda County's tactic is to divert attention away from their abject failures by attacking homeschoolers. California taxpayers are having their pockets picked as they gaze in the wrong direction, duped once again by education bureaucrats.

What's Truly behind this Harassment

The Education Establishment says that their intrusions upon homeschoolers are necessary to ensure that all children receive an adequate education. Don't you believe it. Money is behind these ceaseless attacks on homeschooling.

Schools are reimbursed by the state depending upon their Average Daily Attendance, or ADA. Targeting homeschoolers to force them into public school programs would increase that ADA and therefore bring in more money to the school districts' coffers. Of course, the more students, the more teachers for public schools, and the greater the union dues, which explains why the NEA for the past decade has advocated the abolition of independent homeschooling. Fat budgets, more jobs, greater union dues: the magic combination that relegates liberty to insignificance.

The Truancy Crisis

In 1996, there were more bucks to be had, courtesy of Uncle Sam. The federal Department of Education announced an initiative to reduce truancy. In that year, the DOE shipped out propaganda packets "to every school district in the nation" entitled a Manual to Combat Truancy – a screed that implies all crime begins with truancy – and dangled $10 million in $300,000 to $500,000 chunks in front of local school districts to set up truancy prevention programs. The directive, then, was sent down from on high: crack down on truancy with zero tolerance and make the parents pay.

In California, the directive was heard loud and clear. Only three unexcused absences can now land a parent in a humiliating and intimidating meeting with the District Attorney where he will threaten, quote dubious statistics such as 90% of all prison inmates are high school drop-outs (which is supposed to fool us into thinking that 90% of all drop-outs become prison inmates) and offer the "assistance" of the cops in rounding up recalcitrant teens. Will it really take more than this to convince parents that schools are no more that juvenile prisons?

Here, then, is the classic Ludwig von Mises case of a government created problem being exacerbated by further government controls. Without compulsory school attendance laws, truancy of course would not exist. How do government officials deal with this completely artificial problem of their own creation? They have the choice of allowing children who don't want to attend public school a way out, either by offering a variety of exemptions or by improving the public schools to make them more attractive or both. Instead, in true Leviathan fashion, they choose to crack down on those reprobates. This is not a path taken by bureaucratic inertia, a polite fiction propagated by government apologists that I just cannot abide. Although we may not always be privy to such information, decisions have names and faces associated with them. So do the extensions of those decisions to include unintended victims. In Berkeley, Palau is the overzealous hunter who has trapped homeschoolers in his truancy snare.

What's Next for California Homeschoolers?

Homeschooling parents have already discerned that America's schools are prisons and have refused to sentence their children. Will the state now force the issue? Will Berkeley bureaucrats really succeed in shutting down homeschooling? They are certainly trying. We are facing the possibility that with the stroke of a corrupt judge's pen, all homeschooling parents will become criminals for choosing to educate their children themselves. Yet, California bureaucrats would be wise to heed the rage in these sentiments recently expressed by one parent:

They would have to physically pry my children from my cold, dead hands and even then I would probably find a way to fight. I know I am not the only homeschooling parent who feels this way. Absolutely not.

June 14, 2000

Cathy Cuthbert is a wife, homeschooling mother and volunteer with the California Homeschool Network. CHN has established a Legal Defense Fund for the Berkeley families and other California families facing serious challenges to their right to homeschool. For more information go to http://www.cahomeschoolnet.org or call 800/327-5339 (760/431-1027 outside California).