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California

June 11, 2003
California Department of Education Changing Position on Homeschooling?

Note from HSLDA President Mike Smith: HSLDA is posting 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 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 and HSLDA'S website. We are working in cooperation with these organizations and will post important information as it develops, this coming fall.