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California

August 8, 2008

A Great Victory for California Homeschoolers

In a unanimous decision, the California Court of Appeal for the Second Appellate District today ruled that “California statutes permit home schooling as a species of private school education.”

Today’s decision stands in stark contrast to the opinion this same three-judge panel issued in February, which would have made California the only state in the union to outlaw home education had it remained in effect.

“It is unusual for an appellate court to grant a petition for rehearing as this court did in March,” said HSLDA Chairman Mike Farris, “but it is truly remarkable for a court to completely reverse its own earlier opinion. We thank you for your prayers and give God the glory for this great victory.”

When the court vacated its earlier decision on March 25, 2008, it invited interested organizations to file friend-of-the-court briefs. “I have never seen such an impressive array of people and organizations coming to the defense of homeschooling,” said Farris, who was one of the attorneys who argued the case on rehearing along with Alliance Defense Fund attorney, Jeff Shafer who represented the father. The father was also represented by Gary Kreep of the United States Justice Foundation.

California’s three largest homeschool organizations, California Homeschool Network, Homeschool Association of California and Christian Home Education Association joined together in one brief to defend the right of all parents to homeschool. HSLDA, Family Protection Ministries and Focus on the Family also joined in a separate brief. Numerous other private organizations came to the defense of home education as did California’s governor, attorney general, and superintendent of public instruction.

We are extremely grateful to all of the organizations who worked tirelessly to protect and preserve homeschooling freedom in California. We are also thankful for you, our members, for your prayers and support during this trying season.

The freedom to homeschool is a precious gift from God. But keeping it free requires vigilance and perseverance. We must continue to work together diligently to preserve this precious freedom in California and elsewhere.

To read the full opinion click here.

Below are excerpts from the opinion:

We will conclude that: (1) California statutes permit home schooling as a species of private school education; and (2) the statutory permission to home school may constitutionally be overridden in order to protect the safety of a child who has been declared dependent. [FN1: We use the terms “home school” and “home schooling” to refer to full-time education in the home by a parent or guardian who does not necessarily possess a teaching credential.]

Although the Legislature did not amend the statutory scheme so as to expressly permit home schooling, more recent enactments demonstrate an apparent acceptance by the Legislature of the proposition that home schooling is taking place in California, with home schools allowed as private schools. Recent statutes indicate that the Legislature is aware that some parents in California home school their children by declaring their homes to be private schools. Moreover, several statutory enactments indicate a legislative approval of home schooling, by exempting home schools from requirements otherwise applicable to private schools.

While the Legislature has never acted to expressly supersede Turner and Shinn, it has acted as though home schooling is, in fact, permitted in California.

While the legislative history of Education Code section 44237 is somewhat complicated, it confirms this interpretation, and also reflects the Legislature's apparent intent to accommodate home schooling parents.

The most logical interpretation of subsequent legislative enactments and regulatory provisions supports the conclusion that a home school can, in fact, fall within the private school exception to the general compulsory education law.

We therefore conclude that home schools may constitute private schools.

While the interpretation of the private school exemption is ultimately an issue for the courts, we find it significant that education and enforcement officials at both the state and local levels agree that home schools may constitute private schools.

In short, the rule of Turner and Shinn has been discounted as a doctrinal anachronism, and clinging to such precedent would undermine a practice that has been, if not actively encouraged, at least acknowledged and accepted by officials and the public for many years.