Private School Affidavits Provoke Controversy
God’s grace continues to permeate the California home school legal climate. Although we have had approximately the same number of members contacted as in years before, we have increased our membership. Therefore, we can only presume that God is providing supernatural protection for home schoolers in the largest home schooling state. God is responding to the prayers of His people and it is important to continue to pray for protection for the home school movement, both for California and the rest of the nation.
One issue that continues to surface with public officials is the degree of authority they have over private home schools. The central theme which must always control when discussing this issue is that the school district has no greater authority over the private home school than the large private school. The pertinent statutes dealing with this subject are found in the Education Code at Sections 48222 and 33190.
The issue typically arises when the local school district sends a letter to a private home school asking for attendance records, courses of study offered by the school, and names, addresses and qualifications of the teachers. Under the provisions of the above statutes, these records are required to be kept by all private schools. One certifies in the private school affidavit that these records are kept and are accurate.
The appropriate consideration at this point is the purpose of the request for the records by the public school. The typical answer received from school officials is that, based upon information received from the state department of education, these are the records that the local school district is entitled to review to determine if the school is in compliance with the private school law.
The response is partially true in that this information has been provided by state department of education officials. However, it assumes that the local school district has the right to request and obtain the information in order to “approve” the school as a bona fide private school. This assumption is contrary to the language in Secs. 33190 and 48222, which does not allow for the approval of private schools by local school districts or any other public school agency. A legitimate inquiry regarding the information enumerated above can only be made where a specific student’s exemption from public school attendance is in question. In other words, if a child is reported as not attending a public school, the local school district is required to determine if the child is attending school elsewhere. If the response is that the child is attending a private school, the local school is entitled to verify that the private school exists and that it has complied with the provisions of Sec. 33190, which requires the annual filing of an affidavit or statement containing the information required in the section.
Again, the legitimate purpose for the inquiry by the public school official is to determine whether the child in question can be deemed exempt from public school attendance because he is receiving instruction in a private school, not to determine whether or not that school can legally operate as a private school.
It is important to make this distinction, because most requests for information by public school officials are not prompted by a report of a truant child and an investigation to determine whether the child is attending a private school, but from the filing of the affidavit itself. In other words, the public school is really trying to exercise “approval” power over private schools without statutory authority to do so. No school official would dare send a request for this information to a school with over five students. These requests are going to the schools with fewer than five students because the school officials assume that these are home schools.
Another problem arises when the county superintendents will not accept private school affidavits. The most recent relevant situation occurred when the affidavit had “not applicable” in the blank for fire and health inspections. The home schooler was told that the superintendent would not accept the form until a fire and health inspection were obtained. First, the superintendent does not have the authority to reject an affidavit or declaration. Second, there is no provision in either of the above education code sections for a fire and health inspection. This has been added to the form from the health and safety code. Even if the inspections were required of a home school, the failure to obtain them would not give the local school district the authority to determine that a child attending the home school is not exempt from public school attendance, if the other provisions of Sec. 33190 have been met.
Member families who receive contacts of the above nature should immediately report them to HSLDA so our attorneys can give counsel on how to handle these situations.