The Washington Times
September 15, 2008

Washington Times Op-ed—California Court Reverses Decision

by J. Michael Smith
HSLDA President

Across the country, homeschoolers have been celebrating the most significant victory for homeschool freedom in 14 years. On Aug. 8, in a unanimous reversal of its previous ruling, the Court of Appeal for the Second Appellate District in California ruled that parents in California could homeschool legally without being a certified teacher.

Nationwide attention was focused on this case after the same panel of three judges ruled on Feb. 28 that parents could not teach their own children unless they possessed a teaching certificate. Since the overwhelming majority of homeschool parents are not teacher-certified, the ruling effectively banned homeschooling.

The case In Re Rachel L. arose in a confidential juvenile court dependency proceeding involving a homeschooling family. The petition filed against the family, however, did not involve the issue of education. When the juvenile court assumed jurisdiction over the family, the attorneys appointed by the state for the two younger children requested that the juvenile court judge terminate the family’s homeschool program and order the children to be enrolled in a public or private school. This was not because of education issues, but to protect the children from potential abuse. The judge refused to order the children into school. In response, the children’s lawyers asked the Court of Appeal to order the children into school.

The Court of Appeal did not directly address the attorneys’ request, instead ruling on how parents could homeschool in California. Its first ruling denied parents the ability to freely homeschool in California.

The father’s attorney requested that the Court of Appeal reconsider its decision. On March 25, the Court of Appeal agreed to rehear the case. Interested organizations on both sides of the issue were urged to file friend-of-court briefs. The governor, attorney general, superintendent of public instruction and the California Department of Education all filed briefs supporting the view that parents could homeschool under the private school exemption in California. Of the 16 briefs that were filed, 14 supported the interpretation of the law that allowed homeschoolers this option.

In the Aug. 8 opinion, the court said its proper role was not to make policy, but to interpret the law. It went on to say its further review of California statutes show homeschooling is legally permissible when conducted as a private school. The decision upholds 30 years of practice in California where homeschooling has been carried out under the private school exemption.

The private school law requires the parent/administrator to annually file an affidavit under penalty of perjury indicating, among other things, the grade level and number of students to be taught that year, an assurance that the courses of study would be the same as those taught in the public schools, maintain an attendance register, and that the teachers providing the instruction are capable of teaching.

Perhaps recognizing that teacher certification is an unreasonable teacher qualification for homeschooling parents, the overall media commentary has been favorable to homeschoolers, but some have called for more oversight from the state. This suggestion is misplaced because research shows no correlation between the degree of regulation imposed by the state and homeschool academic achievement. Research also shows the education level of the parent has very little impact on how well homeschooled students perform on standardized achievement tests.

It is also worth considering that the way California has handled homeschooling for the past 30 years is consistent with at least 10 other states, including Texas, Alabama, Indiana and Illinois.

The court is to be congratulated for being willing to change its initial opinion. Now it’s time for parents to refocus on raising the next generation without worrying about the state of California knocking on their door.

Homeschoolers are thriving academically because their teacher loves them and has chosen to give them individualized attention, curriculum and instruction. There’s no need for the state to excessively regulate homeschoolers, but the recent experience in California shows we must always remain vigilant in defense of homeschool freedom.

Michael Smith is the president of the Home School Legal Defense Association. He may be contacted at (540)338-5600; or send email to media@hslda.org.

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