The Home School Court Report
Vol. XXIV
No. 6
Cover
November/December
2008

In This Issue

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Miraculous Turn of Events in California Previous Page Next Page
by Heather Terwilliger
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The Untold Story

“This wouldn’t have happened without HSLDA,” Gary Kreep said repeatedly.

Though these words could be said of any number of matters in which Home School Legal Defense Association (HSLDA) has been involved, they take on special significance in light of the fact that Kreep is a founder of the United States Justice Foundation (USJF) and one of the attorneys representing the father involved in In re Rachel L., the recent case so troubling to homeschoolers in California.

But thanks to USJF, the Alliance Defense Fund (ADF), and the involvement of HSLDA, In re Rachel L. is no longer a threat to home education.

Gary Kreep
Courtesy of USF
United States Justice Foundation—When USJF Executive Director Gary Kreep became part of the L. family’s legal team, he asked HSLDA to assist in the landmark homeschooling case.

In a rare moment of reassessment, the Court of Appeal for the Second Appellate District in Los Angeles, California, recently reversed its February opinion, which formerly held that parents who did not hold a teaching credential could not legally homeschool their children. Though it joins a slim minority of cases that are reheard and reversed, In re Rachel L. (now In re Jonathan L.) is more than a testimony to judicial humility. It also serves to showcase the incredible timing and hand of Providence in the unique way a successful defense of homeschooling, which so eloquently influenced the justices of the court, was brought together. HSLDA had the opportunity to play a crucial role in the reversal.

A Case of Many Names

It all began in 2006, when the Los Angeles County Department of Children and Family Services filed a dependency petition on behalf of Rachel L. and two of her siblings, Jonathan and Mary Grace.

Then, the case emerged on the public scene as In re Rachel L., made notorious by a February 28, 2008, decision from the Second District Court of Appeal.

As its fame spread and press coverage multiplied during the rehearing process, the Rachel L. case quickly acquired the popular moniker of “the California homeschooling case.”

By the time the same court of appeal judges issued a reversal of their original decision on August 8, 2008, Rachel was no longer living in the home and was no longer part of the case, so the new decision bore the next name on the original dependency petition: In re Jonathan L., et al.

In this issue of the Court Report, you’ll see our authors using all these names.

  • The name In re Rachel L. refers to the original bad decision.
  • The name In re Jonathan L. refers to the court’s reversal of that decision.
  • And “the California case” can refer to either—the context will make the meaning clear.

While much has been written in the media and by HSLDA regarding this case, its facets, and the action being taken, very little has been disclosed about the way HSLDA was enabled to serve the homeschooling community behind the scenes in defending the rights of parents to educate their children. The legal cooperation between ADF, USJF, and HSLDA could not be publicly reported until after the conclusion of the case.

The Brick Wall

When the original decision of In re Rachel L. came down, HSLDA leapt into action—a hard job when the only course of action left is trying to bat clean up for something that comes as a complete surprise and is over before people know what has happened.

According to HSLDA President Mike Smith, because the case was a juvenile dependency case and, therefore, the court records were sealed, the organization had no idea homeschooling was being threatened in California until the original decision was handed down by the court on February 28. By ruling that the teacher certification provision was the only legal option for homeschooling in California, the court declared the family involved was acting illegally regarding their children’s education.

“A decision like that will become precedent for every other homeschool family in California,” Smith said, categorizing HSLDA’s initial reaction as one of “shock” and “go into action.” His conservative estimate is that the ruling would have impacted some 166,000 children and their families in the state.

HSLDA/Daniel Noa
County of Los Angeles Department of Children and Family Services—The Rachel L. Case began as a Los Angeles Department of Children and Family Services investigation.

Jim Mason, HSLDA’s senior counsel and litigation attorney, who helped write the petition for rehearing eventually submitted, agreed with Smith. “We knew the court had overlooked critical statutes, but couldn’t do anything to help because we didn’t represent the family,” Mason said. All of the HSLDA staff realized how potentially devastating the ruling could be to the homeschooling community in California.

“The first thing that came to mind was that when a court overlooks critical statutes, you can petition for rehearing,” Mason said. “From a purely technical standpoint, the purpose of a rehearing is to bring to the court’s attention something they have overlooked in the law.” In this case, that oversight was of “monumental proportion,” according to Mason.

To fight the ruling with a petition for rehearing appeared to be the most logical and the only available course of action for HSLDA.

“But in order to file for rehearing, you have to be a party to the case, and we were not the family’s attorney. We’d come up against a brick wall,” Mason said. “With only 15 days allowed by the court to file such a motion, we just found no way to do it.”

By the end of the first week of media spotlight on the ruling, “we had talked to everyone we could think of to get a petition for rehearing filed,” he continued. “There was nothing we could do, so we started brainstorming things we could do later down the road.”

Who Were the Players?

In addition to the following public faces who stood for homeschooling during the crisis, it’s important to recognize the state leaders who lobbied to keep Congress from instituting a federal “solution” to In re Rachel L. And underlying all of the hard work of these individuals and organizations were the prayers of thousands of homeschooling families in California and around the country.

Alliance Defense Fund (ADF)
Gary McCaleb, Senior Counsel
Jeff Shafer, Senior Legal Counsel
Timothy Chandler, Legal Counsel

California Homeschool Network (CHN)
Loren Mavromati, President
Karen Taylor, Trustee

Christian Home Educators Association of California (CHEA)
Mary Schofield, Board Member

HomeSchool Association of California (HSC)
Debbie Schwarzer, Legal Co-chair

Home School Legal Defense Association (HSLDA)
Mike Farris, Chairman
Mike Smith, President
Jim Mason, Senior Counsel
Darren Jones, Staff Attorney

Private & Home Educators of California, a program of Family Protection Ministries (FPM)
Roy Hanson, Founder & Executive Director
Jim Davis, Legislative Liaison

United States Justice Foundation (USJF)
Gary Kreep, Executive Director

HSLDA had already been in contact with the three California membership organizations—Christian Home Educators Association of California, California Homeschool Network, and HomeSchool Association of California—as well as with Private & Home Educators of California, a branch of Family Protection Ministries. Recognizing strength in a unified response, the groups held frequent teleconference meetings to analyze the situation and coordinate their approach. (Editor’s note: These groups played a major role in California’s battle for homeschool freedom. See “California Homeschoolers Unite” for their story.)

Meanwhile, public awareness of the situation soared, due in part to a radio broadcast by Focus on the Family. When Dr. James Dobson heard of the Rachel L. decision, he immediately asked HSLDA Chairman Mike Farris to join him on his show, along with others concerned about the case, such as Roy Hanson of Family Protection Ministries, Focus’s Director of Issue Analysis Carrie Gordon Earll, and a homeschooling parent from California.

“Dr. Dobson wanted something to be done,” Smith said of Dobson’s desire to give people a proactive way to get involved.

One possibility was petitioning the California Supreme Court to depublish the opinion. “This is a legal procedure which allows any person to ask the court to, in essence, say that the appeal court ruling wouldn’t be binding on everyone in California—just the family involved in the particular case,” Mason said.

Homeschoolers and friends of homeschooling from around the country were calling HSLDA, asking what they could do. At a time when progress seemed impossible to accomplish elsewhere, an internet petition drive demonstrating public support for the planned depublishing appeal was the best action HSLDA could give people to take.

“People were signing the petition even before the radio broadcast,” Mason said. Within 10 days, HSLDA had over 250,000 signatures.

But simultaneously, God was bringing down the brick wall.

While thousands were signing the petition for rehearing, Mike Farris was at the Council for National Policy, a gathering of leading conservative minds from around the United States. There, he was sought out by Gary Kreep, who informed Farris that he had been asked by the family to represent them and requested HSLDA’s help with the case.

Divine Timing

Undeniably, God was at work across the country. What HSLDA could not accomplish through strategic networking and the exhaustion of its resources, Providence aligned in a relatively short period of time. HSLDA would now be able to write the petition for rehearing.

How Big Was the Case?

It was huge! While there is no formal record of all the attorneys involved in In re Rachel L., legal briefs and interviews allow us to approximate at least 67 attorneys involved in the case, with a breakdown of the figures below. Taking into account local and out-of-state travel, long distance conference calls, and attorneys’ regular and overtime hours (billable at $200–$500/hour), the costs of the case might have reached seven figures, had it not been for the graciousness of the many firms that volunteered pro bono assistance.

Supporting homeschooling freedom: 55 attorneys
Involved in amicus briefs: 50
Involved in party briefs: 5

Opposing homeschooling freedom: 12 attorneys
Involved in amicus briefs: 10
Involved in party briefs: 2

Estimated total involved in case: 67

“My belief was that, because of how bad the decision was … everyone needed to cooperate and not worry about ‘whose was this’ and ‘whose was that,’ ” Kreep said, acknowledging that he invited HSLDA’s help because he felt they had the best grasp on the arguments that would defend homeschooling. With one chance to convince the court it had made a mistake and should reconsider, Kreep wanted the most skilled people available to help.

“Gary Kreep is a very humble guy…he deferred to us and said, ‘you write it, and I’ll take care of the technical stuff,’ ” Mason said. “I was getting pretty discouraged until he got involved.”

Kreep’s request for help and offer to work with HSLDA was not a new concept—the two organizations had worked together before.

Because of this former association, “we trusted each other,” Mason said. “While Mike Farris and I were putting in long hours writing the petition for rehearing, Gary was getting the paperwork done.”

Down in southern California, Kreep was accomplishing a feat of mileage.

“I was driving all over,” Kreep said, whose destinations in the space of a few days included eastern San Diego, Santa Monica, western San Diego, and Los Angeles, as he shuttled between the L. family, their former lawyer, and the court.

“I spent a lot of time in hotels that week, but most of the time I was driving,” Kreep said. “We were pushing it and trying to get everything done as soon as possible. We didn’t have time to wait … but God made it happen.”

Jim Mason and Darren Jones
HSLDA/Kimberlee Bloom
HSLDA—Senior Counsel Jim Mason (standing) and Litigation Attorney Darren Jones (seated) spent long hours preparing briefs and other documents in the Rachel L. case.

Mason agrees that it was God’s plan and timing that brought about the entirety of what was unfolding at the time.

“If anybody besides Gary Kreep had gotten the case, we might have hit another brick wall,” Mason said.

During this intense week, Alliance Defense Fund attorneys Tim Chandler, Jeff Shafer, and Gary McCaleb also became part of the father’s defense team. “ADF was gearing up for a Supreme Court appeal in the event that the petition for rehearing was rejected,” Mason said.

A Long Shot

With a working partnership in place and the days waning in which to file a petition for rehearing, Farris and Mason set about writing the petition. According to Smith, who put long hours in the office beside Farris and Mason as they wrote, HSLDA has been arguing smaller homeschool cases in California and defending parents’ rights to homeschool in the state for 25 years.

“We have dealt with this longer than anyone else,” Smith said of the expertise that went into crafting the arguments.

But that still did not guarantee the court would grant the petition. Everyone agreed: the granting of a rehearing was an extraordinarily rare occurrence. According to Smith, only three percent of such petitions are granted in California.

In order to prepare the best possible petition, HSLDA retained a prominent appellate lawyer in California, to ensure that what they prepared would be technically correct. The help they received turned out to be invaluable and once more evidence of God preparing the way.

“He was a treasure,” Mason said of the appellate lawyer. From his courtroom experience in Los Angeles, “he knew the justices personally,” Mason said. Not only did he know the ins and outs of the justices’ personalities, but he knew their judicial temperaments, including what types of arguments would offend them and which ones HSLDA should emphasize.

With that kind of background, Farris and Mason were able to craft a petition tailored to the justices who would read it. Such an advantage was inestimable in worth.

“We had to thread a needle, because we had to bring to the court’s attention these gross oversights that we knew weren’t necessarily the court’s fault because they hadn’t been presented to the judges in the earlier briefing,” Mason said. “We had to say, ‘Hey, you made a mistake,’ without offending the judges so much they dismissed it entirely.”

Because such a large number of hearings are denied simply because the party that files them disagrees with the outcome of the case, HSLDA needed to do everything it could to persuade the court to legitimately reconsider.

“We knew we had one long shot,” Mason said.

Statuatory Evidence

The brief crafted by Farris and Mason was two-fold in its plea for reconsideration, appealing to both statutory and constitutional arguments.

According to Farris, the latter, constitutional half, which he prepared, focused on parental rights rather than religious freedom, since the court’s first decision was sweeping enough to include secular and Christian homeschoolers alike. In creating a constitutional argument in favor of parental rights, he endeavored to cater to the record as well as help all homeschooling families involved, not just religious families.

Los Angeles Children's Court
HSLDA/Daniel Noa
Los Angeles County—The biggest threat to homeschool freedom in recent history began behind the closed doors of the Los Angeles Children’s Court.

“Ultimately, however, the statutory arguments won the day,” Farris said. In his opinion, the constitutional arguments are there to set the background.

“If you decide that the statute allows homeschooling, there’s no need to go into the constitutional arguments,” Farris said.

The fact that the court granted the petition for rehearing, while certainly an act of Providence, also testifies to the fact that Mason did his job and did it well.

Mason, who focused on the statutory side of the brief, contended that homeschooling falls, as HSLDA has long argued, under the private school exemption in California compulsory attendance law. Because California does not have an explicit homeschooling law, home educators file with private “umbrella” schools—private schools with homeschooling programs—or parents file an affidavit with the state establishing a private school within their home.

Mason argued that the statute “requires ‘the owner or other head’ of the private school to file an affidavit” and that a 1986 amendment clarified the requirement for “ ‘every person, firm, association, partnership, or corporation offering or conducting private school instruction’ annually to file an affidavit” (emphasis added). While it may seem rather obvious to some, the court overlooked or failed to consider that the legislature worded it broadly enough to include non-traditional private schools and their administrators, and that those administrators might include individual persons in addition to firms, associations, etc. It was a simple and literal translation of the statute, with a huge impact on home education.

“A valid opinion of such sweeping consequence should have considered all those things,” Mason said of this and other statutes.

The only evidence relied on by the court for its condemnation of homeschooling in the original ruling was the private school statutes and several cases unfavorable to homeschooling. These cases, which included People v. Turner (1953) and In re Shinn (1961), “suggest very definitely that homeschooling under private school exemption is not allowed,” Mason said.

“I knew we had this problem, but I also knew we had other things that weren’t included in the discussion,” Mason said.

These “other things” included a fingerprinting exemption for private schools consisting of parents or guardians working exclusively with their children, as well as a Health and Safety Code even more specifically worded.

According to the latter, certain pollution-abatement restrictions are enforced when the activities take place within a certain distance of a school. But these do not apply to homeschools, as Mason was able to clearly point out in the wording of the statute which he quotes: “does not include any private school in which education is primarily conducted in private homes.”

Though the arguments might seem minor and gathered from various odds and ends of California Codes, they were tried and true defenses used by HSLDA over the years to protect home education in California. But they were no guarantee that a court which had made up its mind to denounce homeschooling as illegal was going to admit its error and offer to rehear the case. In the end, all Kreep and HSLDA could do was send off their petition with little time to spare, and wait.

An Unexpected Victory

“The first promising news we got was when Kreep called us and told us the court had ordered the other side to write a response to our brief,” Mason said, referring to the court’s request that the opposing party brief them in response to the brief filed by Kreep. As far as court etiquette goes, it meant the court had taken Farris and Mason’s brief seriously.

Gary McCaleb Jeff Shafer Tim Chandler
Photos Courtesy of ADF
Alliance Defense Fund—ADF Attorneys Gary McCaleb (top left), Jeff Shafer (center) and Tim Chandler (bottom) joined Kreep to represent the L. family. Shafer presented the oral arguments in the June 23 rehearing.

To the great surprise of all, the court granted the petition for rehearing and scheduled oral arguments for June 23. Not only did they agree to reconsider their decision, but the court also invited amicus, or “friend of the court,” briefs from anyone interested in submitting one. Farris said the numerous briefs submitted are the most he’s ever seen in support of homeschooling for a single case.

“It would be impressive for a case before the Supreme Court to have as many,” Farris said. “They were very well done, and they gave enormous credibility to the arguments we were raising.”

HSLDA wrote and submitted an amicus brief on behalf of the organization’s 14,000 California member families, Family Protection Ministries, and Focus on the Family.

Between the court’s acceptance of the petition for rehearing and oral arguments, HSLDA’s Farris, Mason, and Smith worked closely with the father’s legal team, especially ADF’s Tim Chandler, Jeff Shafer, and Gary McCaleb. Not only did they collaborate on the father’s “rebriefing,” but they also coauthored numerous procedural legal documents that needed to be filed.

Referring to the teamwork between all the organizations and attorneys involved in the pro-homeschooling amicus process, Gary McCaleb of ADF said, “In terms of an alliance working together for the common good and a common goal, it was a wonderful example, and the best I’ve seen in 55 years of life.”

On June 23, the court of appeal allowed over two hours for oral arguments—twice as much time as is typically granted. There were 10 attorneys—five for and five against homeschooling—scheduled to speak. The attorneys for the side opposing homeschooling went first. Then, those representing the many organizations in favor of homeschooling spoke. ADF’s Jeff Shafer argued on behalf of the father in the case. And Farris went last, again playing clean up batter.

Though Kreep did not himself participate in the questioning by the court, “we got the best people to argue it,” he said.

Gary McCaleb commented, “I think two things really played in our favor. First, we really did have an incredible alliance of attorneys on our side lined up with ADF, HSLDA, USJF, and the state coming in on our side. Second, these judges heard the positive side and the reality of homeschooling for the first time, I think, in their lives. Mike Farris did a tremendous job laying out the weight of homeschooling in California and nationally.”

The goal was to convince the court that “they didn’t have to decide whether homeschooling was legal in order to rule that in a proper case, where the children are at risk, the court has the authority to override the parents’ constitutional right to homeschool their children,” Mason said. “Then they wouldn’t have to decide the homeschooling issue.”

If those speaking on behalf of homeschoolers could persuade the court of this, they might be able to get a new ruling which left alone the constitutionality of homeschooling. But from his seat in the packed courtroom, Mason wasn’t sure the justices would see their point.

“They were lobbing softballs at the first five,” Mason said of the justices’ questioning of those arguing against a new ruling. When the turn came for the homeschool-friendly side to speak, “it seemed to me the questioning was far more pointed,” he said.

Sitting there, Mason was completely taken off guard when one of the opposing attorneys presented a list of statutes to the court, arguing that they restricted homeschooling. Mason, who had argued statutory support of homeschooling in California for years, felt sick as he realized that he didn’t recognize the statutes.

“I felt personally responsible for this statutory argument,” Mason said, adding that he felt like he should have known about the statutes. But he could only watch as one of the justices wrote down the list of codes for private review.

A few days later, however, Mason had a breakthrough when he realized that none of the statutory evidence presented by the attorney was actually in her brief.

“It’s not quite kosher to present something or raise something new in oral arguments that’s not in your brief,” Mason said. By digging through some notes from a fellow attorney, Mason was able to locate the statutes, which he discovered had been used incorrectly by the opposing side. Rather than being anti-homeschooling, the codes actually referenced exemptions for homeschools. In response, HSLDA quickly drafted a supplemental letter brief for the father’s legal team to file, explaining the impropriety of the attorney’s introduction of the new material during oral arguments and responding to the statutes in question. Surprisingly, the court accepted the supplemental letter brief.

The Ronald Reagan Building
HSLDA/Daniel Noa
Freedom triumphed at the Ronald Reagan Building, the location of the Second District Court of Appeal, when the court ruled in Jonathan L. that homeschooling is a species of private school in California.

But none of this response could have been predicted in court the day of oral arguments, based on the justices’ disposition towards the pro-homeschooling side. In reality, USJF, HSLDA, and most of those involved never expected a complete reversal of the court’s earlier decision. In fact, “we were saying ‘you don’t have to completely reverse yourself,’ ” Mason said, “because we thought that was our best hope, really.”

The tone of the courtroom was so dominated by the justices’ questions and seemingly unfavorable disposition towards homeschooling, that it was Kreep’s opinion the justices would simply clean up their original opinion and reissue it.

Even Farris felt defeated.

“I walked out thinking we had lost,” Farris said. “Questions and things the justices said sounded to me like they hadn’t been swayed from their first opinion.”

And then on August 8, the justices threw their last curve ball, unanimously reversing their earlier ruling.

“I thought we would ultimately win, but I didn’t think we would win at the appellate court level,” Kreep said. “I was prepared to take the case to the California Supreme Court, or the U.S. Supreme Court, because we weren’t going to give up on this.”

Looking Forward

For now, the future of homeschooling in California remains, as it has been thus far, permitted by implicit legislative recognition but unhindered by any explicit laws from the state other than those private school statutes home educators currently operate under.

“I just thought it was an absolute miracle,” Kreep said. “I don’t think anybody on our side was expecting the decision that we got, especially by a unanimous court,” he said of the 3-0 August ruling.

“This wouldn’t have happened without HSLDA,” Kreep said. “I’m not trying to step on anybody’s toes … [but] if it wasn’t for Jim Mason and Mike Farris doing the successful petition for rehearing … this might not have happened,” he said, calling Farris and Mason “the true heroes of this case” among others who helped or argued before the court.

“Everybody put a shoulder to the wheel and did what they did best,” said Gary McCaleb. “We had the spectacular blessing of having HSLDA coming over with its national expertise on homeschooling, we had Gary Kreep with his local expertise in the courts and knowledge of the local attorneys there in southern California, we had Tim Chandler in our office in Sacramento, a California-licensed attorney who lent a hand with a lot of the briefing, and I stepped in with some of the editing and review of the briefs.”

“It was really remarkable, because we had people in four different offices and three different states working as one team on a common cause, on an issue that we knew could set us back 20 years in the homeschool and the school choice realm,” McCaleb said.

Farris, who has been practicing law for 32 years, 25 of which have been with HSLDA, has done a fair bit of appellate work, but says this is the first time he’s ever seen a court reverse itself on a rehearing, and that unanimously.

“You can’t tell for sure what the justices mean from their questions, but after approximately my fiftieth appellate argument … you can come close to reading where the court’s coming from … but I was wrong,” Farris said of believing they had lost at the conclusion of oral arguments.

According to Farris, “This just doesn’t happen in law very often … but God can direct the heart of a king.”


Heather Terwilliger About the author

Heather Terwilliger is a freelance writer and photographer in the Washington, D.C., metro area. On March 9, 2008, she broke the news of the appeal court’s In re Rachel L. ruling in “Home schooling takes a hit” for USA Today—the first national newspaper to report the story. A homeschool graduate and native of Sacramento, California, she recently received her BA in Journalism from Patrick Henry College and has written for a variety of print and broadcast media, including USA Today, Salem Radio Network News, WorldNetDaily, and The Loudoun Times Mirror.