From the HSLDA E-lert Service:


6/11/2002 11:27:32 AM
J. Michael Smith, Esq., President of HSLDA
California--HSLDA Response to Delaine Eastin Letter

From the HSLDA E-lert Service...

Dear HSLDA Members and Friends,

Many private schools in California have received a letter from
Delaine Eastin, State Superintendent of Public Instruction,
explaining certain provisions of the "No Child Left Behind Act of
2001." This act was a reauthorization of the "Elementary and
Secondary Education Act" and pursuant to the law, private school
students and other eligible private school personnel are entitled to
certain benefits.

However, the troubling aspect of the letter pertains to a paragraph
where Ms. Eastin opines that home schooling does not qualify as
private education in California. She defines home schooling as "a
situation where non-credentialed parents teach their own children
exclusively, at home, whether using a correspondence course or other
types of courses..." She further indicates that a parent's filing of
the private school affidavit does not make the private school legal.
She cites the court cases People v. Turner and In re Shinn.

First, we would advise any private school not to participate, nor
encourage their students to participate and receive government
benefits or funds for educational purposes. With money and/or
benefits will come control. These controls inevitably limit the
freedom that has made home education a successful educational

Secondly, the aspect of the letter alleging that home educating
parents must be certified is not a new argument. Since 1993, the
California Department of Education (CDE) in much of its communication
with individuals inquiring about home education, has stated that home
education can be accomplished legally only through the tutorial
provision, which is Education Code sec. 48224. This provision
requires that the teacher be certified in the grade level being
taught. Obviously, most home educators are not certified and if this
were truly the law, it would eliminate most home schooling in

The CDE incorrectly bases its position on the two cases mentioned
above. In the Shinn case, the court applied the private school
exemption to the specific situation in question to determine whether
the family who claimed to have established a private school in their
home was in compliance with the private school law. The court
determined the family was not in compliance because the Shinns
weren't actually teaching their children the required subjects. The
children were teaching themselves using a correspondence course. So
the Shinn case actually supports our position that home education is
legal through the private school exemption.

The Turner case was decided by a Los Angeles Superior Court Appellate
Department in 1953. The Superior Court Appellate Department applied
the "reasonableness" test and concluded that it wasn't reasonable for
the state to have to supervise the many small private schools across
California. There are three problems with this decision. First, the
court was wrong in making the assumption that the state actually
supervises private schools. The state has no authority, nor does any
local school district have any authority to supervise private
schools. Secondly, the affidavit filing requirement pursuant to sec.
33190 of the Education Code was not in existence when these cases
were decided. The private school affidavit is the annual filing
requirement for private schools satisfies any concerns about private
school oversight being too burdensome for the state. Finally, in 1963
the U.S. Supreme Court decided the case of Sherbert v. Verner which
established that whenever there is a violation of an individual's
fundamental right (such as parents' right to educate their children,
or the right to free exercise of religion), the compelling state
interest/least restrictive balancing test must be applied, rather
than the reasonable relationship test.

What this means now is if a home schooling parent was prosecuted for
truancy because they were not a certified teacher, the prosecution
(the school district) would have to prove that teacher certification
is essential to protecting the governmental interest in education.
They would have to demonstrate that certification is essential for
literacy and self-sufficiency. Quite frankly, that would be
impossible in light of the number of illiterates attending and
graduating from public school, all taught by certified teachers.
Secondly, they would have to demonstrate that certification is the
least restrictive way to achieve literacy and self-sufficiency for
home educating parents. This would be impossible in light of the fact
that 49 other states have less of a qualification requirement than
teacher certification and most home schooled students are doing very
well. The bottom line is the Turner case no longer has any validity
in California.

What does this mean for the future of home education in California?
It seems that the CDE is trying to increase the pressure on school
districts to deny parents their right to teach their children at home
using the private school exemption. We urge our members to continue
to operate just as you are.

If you are an HSLDA member and have any problems, let us know
immediately. Don't forget to request your private school affidavit
late in the summer and file it between October 1st and October 15th .
Request the affidavit from the County Office of Education. If you
cannot obtain the affidavit, please call our office.

Very truly yours,

J. Michael Smith
President of HSLDA

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Home School Legal Defense Association
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