A Real Threat to California Homeschoolers

A Real Threat to California Home-Schoolers

by Steven Greenhut by Steven Greenhut


I’m not sure how the Free State Project is going in New Hampshire, but the Police State Project appears to be advancing rapidly here in California.

The latest installment: A state court of appeal has basically outlawed home-schooling. As the Los Angeles Times reported, "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."

The judges — two Republican appointees and one Democratic appointee — argued that "parents do not have a constitutional right to home-school their children. … Because parents have a legal duty to see to their children’s schooling within the provisions of these laws, parents who fail to do so may be subject to a criminal complaint against them, found guilty of an infraction, and subject to imposition of fines or an order to complete a parent education and counseling program." The court made it clear that parents face a loss of custody if they don’t comply, arguing that "the juvenile court has authority to limit a parent’s control over a dependent child … ."

The ruling is shockingly totalitarian, as it echoes this point: "In obedience to the constitutional mandate to bring about a general diffusion of knowledge and intelligence, the Legislature, over the years, enacted a series of laws. A primary purpose of the educational system is to train school children in good citizenship, patriotism and loyalty to the state and the nation as a means of protecting the public welfare."

The “loyalty to the state” phrase captures the essence of the decision.

As such, the court stated that the California government has the right to regulate and supervise schools and to ensure that all students of the right age attend school. California law, it explains, requires "public full-time days school … unless (1) the child is enrolled in a private full-time day school and actually attends that private school, (2) the child is tutored by a person holding a valid state teaching credential for the grade being taught, or (3) one of the other few statutory exemptions to compulsory public school attendance …"

This is where we get into a gray area, given that the California education code doesn’t directly address the legality of home-schooling. Some observers have argued that home-school advocates and others are overreacting to the decision, and are unnecessarily scaring home-school families. One blog, called Ace of Spades, writes that the Times got it wrong and that the court’s decision is rather narrow: "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 home-school their kids in one of the statutorily prescribed methods, they would have prevailed."

After following this issue for several years, reading the court’s decision and talking to some knowledgeable sources, I’m convinced the Times got it right and that home-school families are facing serious troubles unless the decision is overturned at the state Supreme Court or the Legislature intervenes. Gov. Arnold Schwarzenegger released this statement Friday: “Every California child deserves a quality education and parents should have the right to decide what’s best for their children. Parents should not be penalized for acting in the best interests of their children’s education. This outrageous ruling must be overturned by the courts and if the courts don’t protect parents’ rights then, as elected officials, we will."

The problem with the blogger’s argument is that those statutory guidelines parents are supposed to follow aren’t at all clear. In fact, state officials have in the past argued that home-schooling is indeed illegal in California. Back in 2002, the state Department of Education interpreted the law as outlawing home-schooling and then-Superintendent of Public Instruction Delaine Eastin sent letters to school districts urging them to treat homeschoolers as truants. The new superintendent, Jack O’Connell, put the kibosh on that heavy-handed approach, but there’s been no clarity on the issue and no laws have changed. The only thing that has changed is an anti-home-schooling zealot has been replaced by an official who believes that home-schooling is a legitimate educational choice.

Home-schooling advocates argue that “a parent or legal guardian working exclusively with his or her children” is exempt from compulsory education requirements, but the teachers’ union and many officials will continue to argue otherwise given the vagueness in the law. What’s needed is a clear legislative fix, but the Democratic Legislature is closely allied with the teachers’ unions, so home-schoolers fear that any attempt to protect home-schooling would end up outlawing it. Home-schoolers have adopted a work-around: They fill out an affidavit certifying that they are teaching their kids in a private school, charter school or independent-study program.

So an uneasy truce has existed, where home-schoolers go about their business and the government mostly leaves them alone. But this case has brought the issue to the forefront. The blogger cited above argues: "If only the parents had attempted to home-school their kids in one of the statutorily prescribed methods, they would have prevailed.” But the parents in this case enrolled their kids in a private home-schooling program, which is one of the common ways that home-schoolers operate. “The scope of this decision by the appellate court is breathtaking," argues Brad Dacus, of the conservative Pacific Justice Institute in Sacramento. "It not only attacks traditional home-schooling, but also calls into question home-schooling through charter schools and teaching children at home via independent study through public and private schools."

The San Francisco Chronicle quoted Michael Smith, president of the Home School Legal Defense Association, saying: “California is now on the path to being the only state to deny the vast majority of homeschooling parents their fundamental right to teach their own children at home.” And the newspaper further reported: “Leslie Heimov, executive director of the Children’s Law Center of Los Angeles, which represented the Longs’ two children in the case, said the ruling did not change the law. ‘They just affirmed that the current California law, which has been unchanged since the last time it was ruled on in the 1950s, is that children have to be educated in a public school, an accredited private school, or with an accredited tutor,’ she said. ‘If they want to send them to a private Christian school, they can, but they have to actually go to the school and be taught by teachers.'”

There seems to be broad agreement from both sides on the meaning of the case.

The decision is being appealed, and the state is unlikely to enforce the decision in the meantime. Even if it stands, home-schoolers are unlikely to face an orchestrated campaign by the state government to force their kids into public schools or approved private schools (at least under the current regime). But the decision does leave them open to efforts by local school districts — which are driven to pump up their average daily attendance numbers to boost their budgets — to treat them as truants. It will lead to excesses, given that California state law allows parents to lose custody of their children for truancy issues.

I’m sorry if that’s overly alarming, but the only thing worse than unnecessarily scaring people is not scaring them enough.

Steven Greenhut (send him mail) is a senior editorial writer and columnist for the Orange County Register. He is the author of the book, Abuse of Power. Visit his blog.