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1/14/2004 4:51:46 PM
Home School Legal Defense Association
California--Victory For Homeschool Family In San Diego

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From the HSLDA E-lert Service...
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January 14, 2004

Dear HSLDA members and friends:

On January 13, 2004, a San Diego Superior Court judge granted HSLDA's
motion to dismiss the daytime curfew citation filed against the
thirteen year old son of a member family. The citation was issued on
December 16, 2003, when a San Diego police officer was conducting
"truancy sweeps."

At 12:30 p.m. on December 16, the thirteen year old was riding his
bicycle on his way to do some Christmas shopping. A plain-clothes
police officer stopped the child and asked why he wasn't in school.
The child told the officer that he was homeschooled and that he was
on Christmas vacation. The officer replied that it didn't matter, he
was required to abide by the public school's schedule.

The San Diego daytime curfew ordinance provides that it is unlawful
for a juvenile who is subject to compulsory education to be in public
between the hours of 8:30 a.m. and 1:30 p.m. on any day when "school
is in session for that juvenile."

Mike Smith, President of HSLDA and the attorney assigned to represent
member families in California, spoke with the officer the day after
he issued the citation in an attempt to persuade the officer not to
file the citation with the court. Mike explained that under the plain
terms of the ordinance the boy was not in violation of the curfew
because his school was not in session.

The officer disagreed with HSLDA's interpretation of the ordinance
and said, "Tell it to the judge."

The citation required the boy and his parents to appear in court on
January 13, 2004, to enter a plea. Under California law, however,
there is a procedure called a "demurrer" that allows a motion to be
filed to dismiss the charge before entering a plea.

HSLDA litigation counsel, Jim Mason, filed a demurrer, which raised
two related arguments.

First, the officer had actually cited the boy under the wrong
subsection of the ordinance, the one that applied to children
enrolled in "alternative education programs." Under California law,
an "alternative education program" has a precise meaning. It does not
include private schools. It refers only to public schools that are
created especially to deal with children who are not otherwise
succeeding in the regular public school, often for disciplinary
problems.

Alternative schools frequently follow schedules that are different
from the regular public schools. A child attending a public
alternative education program may be required to be at the school
building only two or three days a week. But under the San Diego
ordinance they are nevertheless required to abide by the curfew
whenever the regular public school is in session.

Because private school independent-study programs are not
"alternative education programs," the officer had cited the boy under
the wrong subsection of the ordinance, one that simply didn't apply
to him.

Our second argument asserted that even if the officer had cited the
boy under the correct subsection, the one that applied to students
enrolled in private schools, the citation was still invalid. The San
Diego ordinance only applies to private school children (and those in
the regular public schools) when "school is in session for that
juvenile." Because the boy's private school independent-study program
was not in session on December 16, by definition there was no
violation.

California court rules require a judge to rule on a demurrer before
requiring the entry of a plea. Before opening court to the crowded
docket normally associated with such juvenile court arraignments, the
judge called the member family into his courtroom. He advised them
that he'd read the demurrer and had decided to dismiss the citation.

While he expressed disagreement with HSLDA's argument about
"alternative education programs," he agreed that because the private
school was on vacation, the curfew did not apply to the thirteen year
old boy. He dismissed the case without further discussion or
argument.

This case demonstrates the importance of having an attorney familiar
with the issues surrounding homeschooling involved in a case from the
very beginning. If this family had simply gone to court and entered a
"not-guilty" plea, the opportunity to file a demurrer would have been
lost.

Further, the matter would have been set for trial, at which time the
police officer, who was not present at the arraignment, would have
appeared to testify against the family and explain his interpretation
and application of the ordinance to the judge. It is also possible
that an attorney from the city attorney's office would have been
present to prosecute the case.

Because HSLDA was involved from the outset, the case was dismissed
before it even began.

Please contact HSLDA immediately if your child is stopped or cited
for violation of a daytime curfew.

Sincerely,


J. Michael Smith
President HSLDA



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