Standing Against Illegal Intrusions
The beginning of the 1993-94 school year has been marked by the renewed fervor of public school districts attempting to enroll children in the public schools. Several county offices of education and school districts have notified parents who have previously filed private school affidavits that private home instruction by persons not fully credentialed in the state of California is illegal. However, the counties and school districts are quick to point out that an independent study program is available through either the county office of education or local school district. Because the school will receive money for any child enrolled in their home school independent study program, it appears that financial considerations are motivating these contacts, and one county official has admitted privately that this is true.
A letter from the California Department of Education under signature of the Deputy Counsel contains reinterpretations of the private school provisions. First, the letter indicates that there are three options available to parents who want to provide home instruction: private tutoring, attendance in a private school, or an independent study program through a local public school. This list implies, therefore, that truly “independent” home schooling is not legal. Second, citing a 1943 Attorney General Opinion, the letter provides that private schools’ compliance with the Education Code requirement that teachers be “capable of teaching,” means that they should meet standards comparable to those for public school teachers in similar positions excepting only the credential.
Attorney General Opinions are not law, but merely advisory. Whether or not a teacher is capable of teaching is subject to the decision of the private school administrators, not the local school district. Private schools are not subject to approval, licensing or evaluation by the local school district or the State Department of Education.
Several county offices of education have also written letters to home schoolers who have previously filed private school affidavits. The Lake County Office of Education letter written on July 1, 1993, is typical of these letters. In addition to indicating that private home instruction is only legal under the tutorial provision of Education Code § 48224, which requires the teacher to hold a California teaching license, the letter asserts that the mere filing of an affidavit does not make a home instruction program a private school. The letter indicates that there are many requirements for a “bona fide” private school and that the affidavit is merely a statistical reporting document.
This assertion does not have any support from the law. Rather, it comes from opinions of attorneys within the state department of education. The department of education's legal advisor for private schools opined that private schools should be operated as a business with pupils other than those of the home-schooling parents enrolled. Of course, there is no requirement for this in the law and it exceeds the authority of the State Department of Education.
The Lake County Office of Education letter also indicates that should a home school file an affidavit for the 1993-94 school year, the home would be visited by a truant officer to determine whether the school meets the requirements of the law. The notice that accompanied the Alameda and Imperial County Office of Education mailings indicated that if a parent did not hold a valid teaching credential, the child could be declared truant and referred to the juvenile court of the county for appropriate action. In addition, the parents could be prosecuted for truancy, and if convicted, fined for each infraction of the law.
The several school districts and county offices of education that assert home education is illegal via the private school exemption, base their position on two court cases, People v. Turner and In re Shinn. We have discussed these cases in previous Court Reports, explaining that Home School Legal Defense Association takes the position that these cases are no longer binding because the legal balancing test that was used is outdated.
The logical extension of the positions taken by these various counties and local school districts is that home education is legal only if the instructor is a certified teacher or if the family enrolls in a public independent study program. This interpretation would make California the most restrictive home school state in the United States, since the Supreme Court of Michigan, the last state to still require certification, recently declared this requirement unconstitutional in HSLDA's DeJonge case. Michigan, like California, does not have a specific home school provision and parents home school pursuant to the private school exemption.
It seems inconceivable that in California, supposedly one of the most progressive states in the Union, one could realistically make an argument that a teacher certification requirement for home education could possibly withstand constitutional scrutiny. This has been the conclusion of objective potential prosecutors when they have examined the law that has been pronounced by the U.S. Supreme Court and other courts since the California holdings of Turner and Shinn. We trust this will continue to be the case in the future, although it appears that the education establishment is becoming more aggressive in seeking the prosecution of home school families who do not have a teaching certificate or are not enrolled in a public school independent study program.
HSLDA continues to assert, however, that the private school provision in the state of California provides that home school families may file affidavits and establish private schools in their home for their family. The school does not have to be conducted as a business. The teachers do not have to have the same qualifications as public school teachers, and neither the State Department of Education nor the local school district has the authority to approve, disapprove or license a private school. At the point where a public school official determines that the alleged truant is in enrollment in a private school which has filed a private school affidavit, their authority ceases.
In general, opposition to home schooling by the public school officials is not an issue of education, but an issue of finances and control. California continues to be one of the least restrictive states for home education, but it will only remain that way as long as home schoolers are willing to stand against illegal intrusions into their private schools.