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No. 5

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California Court Affirms Freedom to Homeschool

“This is quite a bad decision. Do you think we’d be interested in getting into an appeal?”

I was on vacation when my colleague, HSLDA Staff Attorney Darren Jones, sent me this rather understated email notifying me that an infamous opinion had been handed down that day by the California Court of Appeal for the Second Appellate District.

—Isaiah 52:7

As I read the opinion for In re Rachel L., two distinct thoughts penetrated the sinking feeling that came over me as I realized that an appellate court had essentially outlawed home education in California.

First, this was the worst-case scenario—a juvenile court case where the legality of home education became the centerpiece of the opinion, even though education was not the issue properly before the court. And because the earlier proceedings were confidential, HSLDA and the rest of the homeschooling community at large didn’t hear about the case until the appellate opinion was published.

Second, I knew that the opinion was bad. And I don’t mean only in the obvious sense that it meant trouble for California homeschoolers. The opinion was a bad example of the judicial craft.

While appellate judges often write opinions that I disagree with, they rarely write opinions that completely ignore critical cases and statutes.

But the Rachel L. opinion did not account for key provisions in the California private school statutes or modern constitutional law cases that should have led the court to a different decision.

Over the years, HSLDA had relied on these provisions and cases to successfully defend California homeschoolers in several “little” cases, preventing those little cases from becoming front-page news like Rachel L. It appeared to us that the opinion did not discuss those critical statutes because they had probably not been included in the briefing.

We immediately began planning a strategy to get the opinion reversed. But we had to act quickly.

There is much to tell about how the same three-judge panel that declared homeschooling illegal in February unanimously and categorically reversed itself on August 8, 2008. It is a story about writs and petitions, judges and lawyers—lots of lawyers. It is a story that illustrates the coming of age of the homeschooling movement in all of its diversity and complexity. Most of all, it is a story about how a big God turned the hearts of three judges and performed countless miracles along the way.

We will be telling these and other stories in a special November/December issue of the Court Report.

In this stop-press article, we will focus on the legal issues decided in the case of In re Rachel L. (now called Jonathan L.) and what the case means for California homeschoolers.

In re Rachel L.

The case In re Rachel L., which started a roller-coaster ride for California homeschoolers in February 2008, actually began in 2005 when Rachel, a young teenager, ran away from home. After several weeks, she turned herself in and accused her parents of abusing and neglecting her.


Following an investigation, the Los Angeles County Department of Children and Family Services (DCFS) filed a dependency petition in juvenile court. The petition asked the court to assume jurisdiction over Rachel, who had been placed outside the home, for her protection. The petition also asked the court to take jurisdiction of Rachel’s younger siblings, Jonathan and Mary Grace, because of what had allegedly happened to Rachel, even though the two remained in the home and there were no allegations that they had ever been abused or neglected.

Significantly, neither the legality nor the quality of the home education the parents were providing were included as issues in the dependency petition.

Dependency cases are divided into two distinct proceedings: the adjudication and the disposition. The adjudication is where the county must prove that the children have been neglected. The disposition is where the court decides what orders to make to protect the children while preserving the family.

In this case, after the adjudication, the juvenile court commissioner concluded that Rachel was indeed in need of court protection. The commissioner also determined that Jonathan and Mary Grace needed to be under court supervision because of what had happened to Rachel. However, since Rachel came of age during the course of the appeal, the two cases were separated and the court then focused on Jonathan and Mary Grace.

At the disposition hearing, the commissioner ordered the parents to attend parenting classes, receive family counseling, and cooperate with county social workers. So far, the case was identical to countless others and would have been of little interest to homeschoolers across the state and the nation.

But during the disposition hearing, the case took an unusual turn.

In addition to attorneys representing DCFS and each of the parents, Jonathan and Mary Grace’s court-appointed attorney was also present. As with most Los Angeles cases, this attorney had been appointed from the Children’s Law Center (CLC).

During the hearing, the CLC attorney asked the juvenile court to make an additional order. She requested that Jonathan and Mary Grace be ordered to attend public or private school, outside the home, to ensure that the children had regular contact with adults other than their parents—adults who by law are required to report suspected abuse or neglect. In other words, the issue raised by the CLC was about the children’s immediate safety—it was not about education, per se.

The juvenile court disagreed with the CLC and did not issue the requested order. Normally, when a juvenile court declines to issue an order sought by an attorney, the only recourse is to appeal that decision. But under certain urgent circumstances, an attorney may seek expedited appellate court review of a decision if it can be demonstrated that the juvenile court abused its discretion—normally a very high burden of proof indeed.

The CLC attorneys chose this faster route and filed a writ petition in the appellate court seeking to immediately overturn the juvenile court’s decision about sending the children to a school. In the writ petition, the CLC argued that the commissioner had said that parents have an absolute right to homeschool their children and that he believed he was powerless to override that decision even to protect children from abuse and neglect.

To overcome the commissioner’s ruling, the CLC made two arguments. First, the CLC argued that juvenile courts do indeed have the statutory power to override a parent’s educational decisions in order to protect the child, once it has been determined that the parents have neglected the child.

Second—and the reason the case became known as the “California homeschooling case”—the CLC argued that homeschooling was illegal in California unless the parent possessed a valid state-issued teaching credential.

The CLC filed this “urgent” request in August 2006. The Court of Appeal for the Second Appellate District did not issue its opinion until February 28, 2008. All the while, Jonathan and Mary Grace lived at home and continued to be homeschooled without any suggestion that their safety was at risk.

The Private School Exemption

Homeschoolers in California operate under the statutory authority of the state’s private school statutes, as they do in 13 other states. In their writ petition, the CLC attorneys relied on two old lower-court opinions to support their argument that homeschooling was illegal in California—People v. Turner from 1953 and In re Shinn from 1961.

In those opinions, the courts analyzed the private school statutes that were in effect at the time and concluded that the parents had violated the truancy laws by educating their children at home. There have been no reported cases in California on this particular issue since 1961, in spite of the dramatic rise of the homeschooling movement since then.

In its February 2008 opinion, the appellate court took the CLC’s bait and based its ruling on Turner and Shinn. The Rachel L. opinion held that California private school statutes did not allow parents to form and operate a private school to teach their own children. Under this opinion, the only recourse left for parents wishing to privately homeschool would have been to obtain state teaching credentials and act as “private tutors” to their children.

The opinion also concluded that a state could outlaw home education without violating a parent’s constitutional right to direct the upbringing and education of his or her child.

The opinion was deeply flawed.

HSLDA President and cofounder Mike Smith has waged a long-standing campaign against Turner and Shinn. When he began homeschooling his own children in California 30 years ago, he found himself representing other California homeschoolers who were battling their school districts for the right to homeschool.

“In the old days, I used to send the school districts a 13-page letter whenever they questioned the right to homeschool. I cited every constitutional law case I could think of,” says Smith. “Eventually, the public school system got used to the idea that homeschoolers operate as small private schools.”

As the homeschooling movement grew and became widely accepted as a valid educational alternative, the California legislature began taking homeschoolers into account whenever it passed legislation that affected private schools. Several bills that were passed in the last 25 years made special provision for private schools composed of parents teaching their own children. But none of these modern statutes directly referred to “homeschooling,” and unless one knew about them, they could easily be overlooked.

Needless to say, none of these statutes were brought to the appellate court's attention in round one of the Rachel L. case. In fact, the judges’ opinion contained this remarkable statement:

The Legislature has not amended [emphasis ours] the substantive aspects of the compulsory education statutes that were analyzed in Turner and Shinn.

This sentence demonstrated the opinion’s vulnerability. And it invited a course of action that any lawyer will tell you is, at best, a long shot—or, more aptly stated, a prayer.

Petition for Rehearing

Under California court rules, an appellate opinion does not become final until 30 days after it is filed by the court. Once an opinion becomes final, the only way to get it reversed is to ask the Supreme Court of California to review the case, which it may or may not choose to do.

But a party to the case may ask the issuing court to reconsider its own decision by filing a petition for rehearing within 15 days. A petition for rehearing is an opportunity to bring to the court’s attention grave legal or factual error and essentially request a do-over. Rehearings are often asked for but rarely granted.

In our next issue, we plan to tell you the rest of the story behind the petition for rehearing. Suffice it to say that HSLDA attorneys knew the opinion was vulnerable, but because we did not represent any party, we were temporarily powerless to act.

The petition for rehearing that was filed on day 15 began this way:

The opinion in this case holds that father may not teach his own children under Educ. Code §48222 as a matter of statutory interpretation. The opinion relies almost exclusively on People v. Turner, a 1953 decision of the Appellate Department of the Superior Court. The statutory landscape has changed dramatically since 1953, yet the opinion does not consider or attempt to harmonize any of the more recent enactments that would lead to a contrary result. In just one example, in 1998 the Legislature exempted teachers in private schools from submitting fingerprints if the teacher is “a parent or legal guardian working exclusively with his or her children.”

* * * (paragraph skipped)

This decision affects not only father’s rights but calls into serious question the legality of private education for thousands of families in California who have taught their children at home under the authority of §48222 and related statutes for many decades. In a case with such sweeping consequences, father’s rights should be determined by construing the statutes as they exist today, not as they were in 1953, and by applying up-to-date constitutional analysis.

The appellate court granted the petition for rehearing on March 25, 2008, thereby (according to court rule) vacating the Rachel L. opinion-rendering it a legal nullity.

The court also ordered the case to be completely re-briefed by the parties—almost unheard of—and solicited friend-of-the-court (amicus) briefs from numerous public entities and others interested in the outcome. Ultimately, there were 16 amicus briefs filed, 13 of which overtly supported home education. Notable among the supporting briefs were those filed by California Governor Arnold Schwarzenegger, Attorney General Edmund G. Brown, and Superintendent of Public Instruction Jack O’Connell. The Los Angeles Unified School District (LAUSD) filed a brief which ostensibly opposed home education, but grudgingly admitted that parents could form private schools under the statutes.

Amicus briefs were also filed by HSLDA, California’s three largest homeschooling groups (California Homeschool Network, Homeschool Association of California, and Christian Home Educators Association of California), the Pacific Justice Institute (on behalf of Sunland Christian School), the Pacific Legal Foundation, the National Legal Foundation, the Sutherland Institute, the Liberty Counsel (on behalf of 13 members of Congress), the Gifted Homeschoolers Forum et al., the Seventh Day Adventist Church State Council, the Center for Constitutional Jurisprudence (prepared by noted law professors David Llewellyn, John Eastman, and Erwin Chemerinsky), and the American Center for Law and Justice with the Western Center for Law and Policy.

“The weight of legal and scholarly authority presented to this court in defense of homeschooling is unprecedented,” said HSLDA Chairman and cofounder Michael Farris. Only the California Teachers Association and a children’s rights group called Public Advocates filed briefs hostile to home education.

The appeals court heard oral arguments on June 23, 2008, allotting more than two hours and hearing from 10 lawyers, including Farris, who argued as an amicus on behalf of HSLDA’s 15,000 member families in California as well as Focus on the Family and Private and Home Educators of California. The father in this case was ably represented by attorneys from the Alliance Defense Fund and the United States Justice Foundation.

On August 8, 2008, the appellate court handed down Jonathan L. v. Superior Court, which concluded that home education is a “species” of private school education.

“It is unusual for an appellate court to grant a petition for rehearing as this court did in March,” Mike Farris wrote in an e-lert to friends of homeschooling the day Jonathan L. was decided, “but it is truly remarkable for a court to completely reverse its own earlier opinion. We thank you for your prayers and give God the glory for this great victory.”

Jonathan L. v. Superior Court

While the Rachel L. opinion was notable for its poor judicial craftsmanship, the opinion in Jonathan L. is its polar opposite. The opinion notes at the outset that:

It is important to recognize that it is not for us to consider, as a matter of policy, whether home schooling should be permitted in California. That job is for the Legislature. It is not the duty of the courts to make the law; we endeavor to interpret it.

The opinion then carefully and dispassionately considers the development of the private school exemption statutes from their adoption in the early 20th century up to the present. The opinion frankly discusses potential pitfalls for a homeschool-friendly interpretation but ultimately concludes that under California private school statutes, parents may lawfully teach their own children at home.

In addition to straightforward statutory interpretation, the opinion notes that “three other principles of statutory construction also support the result. These are: (1) administrative construction; (2) reliance; and (3) avoidance of constitutional questions.”

The opinion then recognizes that the California Department of Education, the governor, the attorney general, and the LAUSD all agreed that “home schools may constitute private schools.”

The people of California, the legislature, and other elected officials have acted as if homeschools are private schools for many years. Many have relied on this common understanding who would potentially be committing the crime of truancy if the common understanding were ruled to be mistaken. In a remarkable sentence, the opinion says,

In short, the rule of Turner and Shinn has been discounted as a doctrinal anachronism, and clinging to such precedent would undermine a practice that has been, if not actively encouraged, at least acknowledged and accepted by officials and the public for many years.

Finally, while Rachel L. categorically denied that parents have any constitutional right to homeschool their children, Jonathan L. recognizes that “if home schools are not permitted in California unless under the private tutor exemption (requiring the tutor to be credentialed), this raises difficult constitutional questions.” The Jonathan L. opinion may now be cited as judicial authority that it would be unconstitutional to require parents to be credentialed teachers before they may homeschool their own children.

Because the case was really about child safety and not the legality of homeschooling, the opinion wraps up by addressing the safety issue. If a parent has been found to have neglected his child and if it is necessary for the child’s safety that the child attend school outside the home, then a parent’s right to homeschool may be restricted.

The bad news—if there is any—is that the Children’s Law Center technically won the writ petition and there will be further proceedings in the juvenile court about the safety issue.

The good news for the family is that the juvenile court had already conducted a hearing in July and decided that there was no safety issue. The even better news for California homeschoolers is that, because the CLC technically won the writ, it can’t appeal to the Supreme Court of California, even if it disagrees with the new opinion’s conclusions about the legality of homeschooling.

For California homeschoolers, nothing much has really changed. They can keep homeschooling under the private school exemption, as they have for the past 30 years.

Periodically over the past 30 years, a school district or other agency would wave Turner and Shinn and attempt to cause trouble for a homeschooling family. HSLDA and other homeschooling advocates were always successful in stomping out those brush fires. We expect that the 2008 Jonathan L. opinion will truly and finally consign Turner and Shinn to the dustbin of history.

Soli Deo Gloria

The right to homeschool does not depend on the words of judges. But we would be remiss if we did not commend the justices of the California Court of Appeal. It is no easier for judges to admit that they’ve laid an egg than it is for anyone else. Yet Justices Croskey, Klein, and Kitching demonstrated the highest levels of integrity, professionalism, and intellectual honesty by vacating their earlier opinion, by soliciting and accepting input from far and wide, and by completely revising their earlier opinion in such dramatic fashion. This court worked hard to get it right, and we are thankful to the justices for that.

At HSLDA, we are guided by fairly simple principles. We believe that parents have the God-given right to educate their own children and that we are called to advance and defend that right in concert with homeschoolers everywhere. We believe that the Lord has been pleased to bless the homeschooling movement. We know that homeschoolers in California, across the country, and around the world joined with us in praying for victory in this case.

The morning before the opinion was released, the HSLDA staff gathered to pray as we do at the start of every Tuesday and Thursday. The prayer for the California case was short. “Lord, we’ve done all that we know to do and now we leave it in your hands.” We are pleased to give God the glory for this great victory.