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6/12/2003 10:48:00 AM
Home School Legal Defense Association
California--Department of Education Changing Position on Homeschooling?

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From the HSLDA E-lert Service...
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June 12, 2003

***

Note from HSLDA President Mike Smith: HSLDA is sending y ou the
following Legal News Update from Roy Hanson and Jim Davis of Family
Protection Ministries (FPM) for your information. It is being issued
in California jointly by FPM and HSLDA. We have worked closely with
FPM on this issue and have been consulted on and agree with the
accuracy of this report.

***

We thank and praise God for what appears to be a softening of the
California Department of Education's (CDE's) position toward private
home education. This did not happen by accident. By God's grace and
in consultation with Mike Smith of HSLDA, we, among others, were able
to work behind the scenes with well-placed individuals to help secure
this change. Several months ago, a major key contact of ours, who is
not in the CDE, was assured by newly elected Superintendent of Public
Instruction, Jack O'Connell, that the CDE would modify its position
on private home education. This was confirmed a month ago by an
HSLDA contact with the CDE Legal Office. We are grateful for several
others who have worked diligently on this effort. And we are
grateful to Superintendent O'Connell, who had been supportive of
private home education while he served in the Legislature.

The California Department of Education (CDE) has removed its negative
comments on the legality of private home education from accessibility
on the Department's website. The CDE's Legal Office has recently
stated that it will no longer be saying publicly that all private
homeschooling is "illegal" in California but will leave this
determination up to the counties on a case-by-case basis.

No laws have changed. The legal status of home-based private schools
has not changed now, nor under Delaine Eastin, nor in the last
several decades.

While this is an important victory in that the CDE's position
definitely influences counties, it has always been the counties that
have had the statutory legal authority to investigate and prosecute
allegations of truancy.

Homeschoolers still need the same legal protection as they did in the
years before the CDE became more vocal in its opposition to private
home education under Delaine Eastin. Based on history before Eastin,
we can expect continued attempts to intimidate and possibly prosecute
homeschoolers, depending on the county or local school district. In
addition, the number of contacts by CPS social workers investigating
alleged child abuse and neglect is increasing in the entire
population. Homeschoolers are not exempt from this dangerous trend.

We urge you to remind your friends and associates to keep their HSLDA
membership current. HSLDA may be contacted at their web site at
www.hslda.org or by calling 540-338-5600. Complacency at this time
is an enemy to your family's security and freedom.

BACKGROUND

There is misunderstanding among homeschoolers and our friends on
these events partly because of a plethora of email and website
postings. Not all of these are accurate. Some were sent before
checking out the details from multiple primary and secondary sources.
Many contain accurate information as far as they go; however, more
information is needed to provide the complete picture.

Bottom line: No laws have changed and no legally-binding rulings
have been issued now nor previously by Carolyn Pirillo or anyone else
under Delaine Eastin.

Carolyn Pirillo retired in August of 2002. Subsequently, her boss,
Delaine Eastin retired due to term limits in December of 2002.

Michael Hersher, a deputy counsel from the California Department of
Education (CDE), is presumably assigned to take Carolyn Pirillo's
place in reference to private and homeschooling issues. He has
reported that the CDE will stop stating that all privately home-
educated children are automatically considered truant.

CDE Legal Counsel Hersher further stated that earlier documents on
CDE's website which stated or implied that homeschooling is illegal
have been removed from their web site. This information has come to
us from several sources this year and was most recently confirmed by
a World Net Daily article dated June 2, 2003. We thank all
individuals and groups who have been a part of this limited but very
important and strategic victory.

We thank newly-elected Superintendent of Instruction, Jack O'Connell
for directing that the CDE's position shift toward a more neutral
position, similar to what it had been under former Superintendent of
Instruction Bill Honig in the late 1980's and early 1990's.

Please note that we did not publish this information earlier for
several reasons. In light of the "news" that has recently been
circulating and published, we need to clarify the bigger picture, and
the implications for the average homeschooler.

First, we delayed because the Department of Education's division
assigned to handle the filing of private school affidavits had
continued to offer, as recently as June 4th, the old line that "home
education is not authorized and is not legal in California," contrary
to the position taken by CDE's attorney, Hersher. That has now
changed on at least their recorded message which does not mention
homeschooling but only explains how to obtain a private school
affidavit. CDE's earlier statements often confused and discouraged
homeschoolers from filing a private school affidavit. These earlier
statements were technically partially true. We and others have
fought all attempts to create and recognize (and regulate) "home
education" as a separate legal entity from other "private schools."

"Homeschooling" in California, from the government's perspective, is
a colloquial term which refers to parents teaching their own children
in their home as either: (1) a part of a private school that they as
parents established or as a part of a larger private school
established by a third party; or (2) a part of a public school
independent study program or a public school operating as a charter
school.

We preferred to continue our work diplomatically behind the scenes
until this internal CDE discrepancy could be cleared up. We both
expect and hope that the change of position from the CDE's legal
office will take effect in the division of the CDE responsible for
receiving filed private school affidavits. We continue to work
quietly on this issue with the CDE and other parties.

The second reason we delayed making public statements about changes
in CDE's position is that we generally believe it is safest to wait
until the results are "in print." In this case "in print" refers to
the yet-to-be revealed CDE website pages related to filing private
school affidavits. Anti-homeschooling statements were still on the
CDE website (as of this writing on June 10th), but links to them
appear to be removed. This is hopefully just an oversight. In the
past, we have seen people celebrate too early -- only to have the
victory disappear before it was solidified or finalized.

The CDE appears to be well along in the process of making positive
changes in its publicly stated position toward home-based private
schools (i.e. private home education). This will be an important
victory if each department of the CDE will be consistent with Deputy
Counsel's Hersher's position which has reportedly come from the very
top -- the Superintendent of Public Instruction and head of CDE, Jack
O'Connell.

The CDE never did and does not now have the legal authority to "make
a ruling" that private homeschooling is legal or illegal. This is in
the jurisdiction of the Legislature. They now simply and correctly
acknowledge that the laws of California do not prohibit a parent from
establishing a private school and subsequently filing an affidavit as
required by law.

Under our national and state constitutions, private parties are
considered to be able to do anything that the law does not
specifically prohibit them from doing. In contrast, government
entities can only do what the law specifically authorizes them to do.
It is not the other way around as Pirillo and others have claimed.
Pirillo's argument was that since the laws did not specifically
authorize parents to establish a private school and teach their own
children, then they were supposedly prohibited from doing so. This
is wrong! Our Constitution limits governmental authority and
jurisdiction in order to secure individual liberties under God.

Any new (or old) position taken by the CDE does not affect the legal
status of private homeschoolers in California. We should welcome the
CDE's changed position and recognize the positive influence it can
have in many situations. However, homeschoolers should not rely upon
this new position but rather upon California law under the authority
of the Legislature according to our Constitution. In all things we
are to rely upon God and His grace.

It appears that the CDE is going back to their previous position
(prior to the mid-1990's) that it is each county's exclusive
responsibility to enforce truancy laws, which has always been the
case. Some may interpret the statements from Hersher to imply that
counties can evaluate and rule upon the legality of any private
school based in the home. But in fact, the counties are limited only
to verifying that a particular compulsory-age student, whose name
they already have, is exempt from public school attendance due to
their enrollment and attendance in a private school which has filed
an affidavit pursuant to EC secs. 48222 & 33190.

This is what we, in consultation and coordination with HSLDA, CHEA
and other groups have been working on through well-positioned third
parties both before and after the election of Jack O'Connell, as
Superintendent of Public Instruction.

Homeschoolers will still be subject to investigations and harassments
by either public school personnel investigating truancy or social
workers investigating child abuse and neglect, just as they were
prior to the mid-1990's. Private homeschoolers still need legal
protection when this happens. The need for membership in HSLDA
remains as great as ever. It also goes without saying that the
challenges to defeat negative legislation will remain great.

Write Superintendent of Public Instruction Jack O'Connell, thanking
him for this more legally accurate and friendly position of the CDE.
You should write even if you don't agree with him on other issues.
Keep your letter positive, short, and simple.

The Honorable Jack O'Connell
Superintendent of Public Instruction
California Department of Education
PO Box 944272
Sacramento, CA 94244-2720

Periodically check CHEA'S website [www.cheaofca.org] and HSLDA'S
website [www.hslda.org]. We are working in cooperation with these
organizations and will post important information as it develops,
this coming fall.

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