There continues to be a lot of turmoil in California over the legality of home education. As HSLDA has reported many times, the problem stems from information provided by the state department of education to school districts, stating that home education can only be done legally through the tutorial exemption. Found in California Education Code § 48224, the tutorial exemption provides that children being taught by a private tutor for at least three hours a day for 175 days each calendar year shall be exempt from public school attendance. The tutor must hold a valid state credential for the grade taught.
HSLDA continues to assert that another option is found in Education Code § 48222, the attendance in private school exemption. The following are the requirements to establish a bona fide private school:
The private school administrator shall file a private school affidavit pursuant to Education Code § 33190 annually between October 1 and 15 with the superintendent of public instruction.
There are two main arguments used by the California Department of Education (CDE) against home education via the private school exemption. First, the department argues that the tutorial exception mentioned above would be meaningless if it wasn't intended to apply to home schoolers. The fact is that there are a significant number of paid tutors in California, especially in the entertainment industry. Additionally, there are five other states (AK, AL, IL, LA, and NE) that both recognize the legality of home education through the private school exemption and have a credentialed teacher tutorial exemption.
Second, the department asserts that home education via the private school exemption is illegal based on the Los Angeles Superior Court's 1951 People v. Turner decision. Using the outdated "reasonableness test" in Turner, the court's appellate department said that it was unreasonable for the local school district to have to monitor all these small private home schools. However, there are two problems with this conclusion. First, there is no authority under California law for a public school district to monitor, evaluate, approve, recognize or endorse private schools. Secondly, the "reasonableness test" is no longer the proper standard for resolving this type of dispute.
Where state law interferes with the practice of a fundamental right such as the right of parents to choose the manner of education for their child, the "compelling state interest/least restrictive means test" must be used. No other state requires home schoolers to be certified in order to be able to teach their own children at home. In 1993, the Michigan Supreme Court concluded that the teacher certification requirement for home schoolers was unconstitutional because it failed the compelling state interest/least restrictive means test. The same result would occur in California should the state pursue a truancy prosecution against home schooling parents in court.
It is unfortunate that we have this conflict between the department of education and home schooling. It hasn't always been that way. From the time HSLDA started defending families in 1983 through 1991, the California Department of Education informed inquirers that although home schooling was not specifically addressed in California statutes, there were two options available: the private tutoring option and the private school option. The department went on to encourage parents to consider independent study through the local public school system.
If CDE's current position on home schooling was correct, it would make California the most restrictive home schooling state in the nation. Not only is this inconsistent with the current legal precedent addressing this issue, but it is inconsistent with the theme and belief that California is a "land of opportunity." It would be a land of opportunity only for those who don't teach their children at home. We assert that the California Department of Education's position absolutely lacks a proper legal foundation and any credibility.
- J. Michael Smith
