by J. Michael Smith
In previous articles on California in the Home School Court Report, members have read about a procedural term in the law called a "demurrer." In all of the criminal cases that HSLDA has handled in California, we have filed a demurrer. Questions have often been asked as to what exactly a demurrer is and why we use this procedure in California.
In California, a defendant must file a demurrer to a criminal complaint before he enters a plea of "not guilty" to the charge. The demurrer is a pre-trial motion which challenges the criminal complaint on the grounds that it does not state a public offense (see Penal Code § 1004.4). In other words the complaint does not present adequate notice that the activity in question (i.e., homeschooling pursuant to the private school exemption) is illegal. The law requires that the complaint must contain a statement in words sufficient to give the accused adequate notice to avoid illegal activity.
Typically, in a homeschool case, the complaint states that the defendants (parents) have legal custody of a child, have not been sending the child to public school, and have not established an exemption (e.g., private school attendance or instruction by a certified tutor). Only a parent who has filed a private school affidavit pursuant to Education Code § 48222 and § 33190, could demur to the statute because he or she is claiming to be in compliance with the private school exemption, and therefore, not in violation of the compulsory attendance statute. Since the parent has done everything necessary to satisfy the statutory requirements for a private school exemption, the parent asks the court to dismiss the complaint on the grounds that the complaint is void for vagueness (i.e., not enforceable against them).
The United States Supreme Court has outlined the principles which are to direct a court in determining whether a criminal statute is unenforceable because of vagueness. First, a statute is void for vagueness if its prohibitions are not clearly defined. The law must give a person of reasonable intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Secondly, the law must give explicit standards for those who apply and enforce it (i.e., truancy officers and prosecutors). Thirdly, when a questionable statute infringes upon sensitive areas of constitutional rights (e.g., homeschooling), the court must look more closely at the statute since the notice requirement on the statute is greater.
It is HSLDA's position that these guidelines clearly support our contention that in a typical criminal prosecution for homeschooling, the statute is vague. When parents file a private school affidavit in California to exempt their children from public school attendance, they are relying upon opinions by the Superintendent of Public Instruction for the State. Officials within the State Department of Education have referred to these homeschools as small private schools. The California School Boards Association (CSBA) has indicated in a policy statement that the filing of an affidavit and compliance with the requirements of § 48222 of the Education Code is a legal method for parents to teach their children at home.
Most of the school districts throughout the state concur with these opinions. However, some school officials, who are opposed to homeschooling, have taken the position that a homeschool is legal only if the parent is a certified teacher or the parents hire a certified tutor to teach the children. They rely on two cases to support their position, People v. Turner and In Re Shinn. The Turner case is the leading case (Shinn followed the reasoning in Turner) and the only case that has any factual relevance to the typical homeschool situation (in the Shinn case, it was clear that the parents were simply using a correspondence course with very little or no input from the parents).
Since the Turner case was decided by a Los Angeles Superior Court Appellate Department, it is binding as precedent only in Los Angeles County. This probably explains why Los Angeles is clearly the most aggressive county against homeschoolers. The court in Turner ruled that a homeschool could not be a private school. However, the Turner decision was decided in 1953 and the legal basis the court used in deciding the case would be unconstitutional today. The court ruled that the legislature must have intended that the only legal method to home teach is pursuant to the tutorial method (certification requirement), because it would be too burdensome for the public school districts to monitor these homeschools.
The court used the "rational relationship or reasonableness test" to weigh the interests of the homeschoolers against those of the public school system. This test was abolished by the United States Supreme Court in 1963 with the Sherbert v. Verner case, in which the Court replaced it with the "compelling interest" test. Also see Wisconsin v. Yoder, 406 U.S. 205 (1972). Therefore, the Turnerz decision can no longer by applied because the "rational relationship test" has been replaced by the "compelling interest test." Arguably, that case's result would be different today in light of the fact that the state would now have to prove one of the elements of the "compelling interest test"; namely, that certification is the least restrictive means of insuring that the state's legitimate interest in education is being met. This would be impossible to prove because private school teachers only have to be "capable of teaching" and not certified. Further, the state has recognized that parents can successfully teach their children at home, as the legislature has passed legislation authorizing an independent study program through the public school. The parent does the teaching and chooses the curriculum under the supervision of a teacher in the public school.
Therefore, the state has already recognized less restrictive alternatives for fulfilling the State's interest in education than certification. Turner, as a result, no longer serves as legal precedent for any court in the state of California. Without Turner, there is no authority to support a finding that a family cannot establish a private school in the home.
This being the case, parents who have filed a private school affidavit and established a private school in their home are in compliance with the private school exemption and their children are not truant. Any court in which a demurrer is filed by HSLDA is presented with these arguments and others in an attempt to convince the judge to find the statute vague and unenforceable. Judge Beck, Municipal Court Judge in Santa Barbara County, when presented with these arguments found the statute to be vague and dismissed criminal complaints against two homeschooling families. Judge Beck evidently did not take the demurrer lightly, as she took two months to research the issue on her own before giving her opinion.
If a judge denies the demurrer, a "not guilty" plea is entered and the case is set for trial. At the trial, all of the factual and constitutional defenses are raised. The court could conclude at trial that the family had met the private school exemption as a legal alternative to sending their children to the public school even though the demurrer was denied.
Hopefully, this gives some understanding of what a demurrer is and why we make such a motion. In light of this discussion, the question may still be asked as to whether or not one should file a private school affidavit. One reason for filing a private school affidavit and establishing a private school in the home is to make it possible for us to utilize this demurrer procedure should a family be prosecuted for homeschooling. Before seeking a private school affidavit from the State Department of Education or local school district, however, it is advisable to seek counsel from a knowledgeable homeschooler in your area, or to contact HSLDA.
Overall, there are no new court cases in California to report. We are awaiting the judge's ruling on our demurrer in the Baird and Allison cases in the Lodi Municipal Court. Attorney Al Cunningham of Montgomery Creek, California, presented oral arguments pursuant to the filing of the demurrer before the judge on April 18, and the judge took the matter under consideration. The judge said he would provide a written decision before the next court date, which is May 9, 1988.