«		LEGAL/LEGISLATIVE UPDATES		»
ACROSS THE STATES

CALIFORNIA

Official claims right to approve private homeschools

In a May 27, 2005, letter to the editor in the Gilroy Dispatch, Gilroy Unified School District Attendance Officer Frank Valadez asserted that home educators operating under the private school exemption must seek approval from the district attendance officer before they can homeschool their children.

After several exchanges of letters to the editor, the issue of disagreement between Mr. Valadez and homeschoolers in California became very clear. The issue is about the authority of the local public school attendance officer to verify that a private school exists.

Mr. Valadez asserts that he has the authority to verify that the requirements to establish a private school in California have been met before a school starts. Those requirements are as follows, pursuant to Education Code §48222:

>> Instruction must be provided by persons capable of teaching;
>> Instruction must occur in English (except in limited situations);
>> Instruction must be provided in the several branches of study required to be taught in public schools; and
>> Attendance must be kept in a register.

Education Code §48222 goes on to indicate that the exemption from public school attendance for those students attending private school shall be valid after the attendance officer has verified that the private school complies with the provisions of Education Code §33190. This section contains the annual requirement for filing an affidavit under penalty of perjury by the owner or chief administrator of the private school, stating that the above requirements are in fact being met. Section 48222 further provides that the verification is not to be construed as an evaluation, recognition, approval, or endorsement of any private school or course.

Therefore, when there is an allegation of truancy against a child attending private school, the attendance officer must first determine if the child is attending a private school by contacting the private school administrator. If the chief administrator indicates that the child is in attendance at the private school, the next step for the attendance officer is to verify whether the affidavit has been filed. Once the attendance officer contacts the superintendent of public instruction and determines that the affidavit is on file with the California Department of Education, the investigation should cease.

Under Mr. Valadez’ theory, he has the authority to determine whether a private school teacher is capable of teaching, even though the statute specifically says that an attendance officer’s authority is limited to verification of attendance and the filing of the private school affidavit, not the evaluation, recognition, approval, or endorsement of teachers or courses of study.

Accepting Mr. Valadez’s opinion would disregard the fact that the affidavit is filed under penalty of perjury, creating a presumption that the school is in compliance with §48222.

In summary, Mr. Valadez’s authority over home educators and private schools is merely to investigate allegations of truancy, not to approve, endorse, or recognize private schools and courses. California law does not grant local school districts the authority to require that private schools seek approval prior to beginning operation.

If Gilroy Unified School District insists that parents teaching their children at home pursuant to the private school exemption have to receive prior approval, this will constitute a prior restraint of a protected constitutional right and a clear violation of the school district’s statutory authority.