June 10, 2002

HSLDA Responds to California Superintendent of Public Instruction

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 movement.

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 § 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 California.

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 § 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 in August or early September and file it between October 1st and October 15th. Request the affidavit from the County Office of Education in writing on your private school's letterhead. DO NOT call or go to your County Office of Education in person. If you cannot obtain the affidavit, please call our office.