April 6, 2011

Hearing Officer: “Claimant’s Home School Constitutes a Private School”

In October 2011, HSLDA Litigation Attorney Darren Jones successfully defended a homeschool mom against a county welfare department, which had discontinued her 16-year-old daughter’s welfare check, arguing that her attendance in a private homeschool did not satisfy the law’s requirements for “regular school attendance.”

A little background is in order. Over the years, HSLDA has defended California homeschoolers in a variety of cases, both large and small. Many of the cases arose because many years ago Department of Education officials took the public position that homeschooling in California was illegal.

In spite of the CDE’s stated position, homeschooling grew and thrived under the private-school option. Prosecutions for truancy were almost nonexistent because the public schools in California, for the most part, accepted that homeschooling existed under the private-school option.

But the CDE’s memos found their way into the hands of county welfare officials, which resulted in several “small” cases all over the state in the 1990s and throughout the first decade of the new millennium. According to California’s welfare laws, when a child who receives state aid turns 16, her parents must provide proof that the child is in regular attendance at school to continue receiving the aid. Relying on the old, incorrect letter from the CDE, county welfare officials denied continuing payments if the child was homeschooled.

HSDLA defended every one of these cases that we became aware of to prevent bad legal precedent from being set. We won every one. These “small” cases never became big cases. And they helped us to develop and refine our legal arguments in preparation for the “big” one.

Which arrived in 2008, when the California Court of Appeal ruled that homeschooling was illegal in a juvenile dependency case. The opinion was published, which meant that everyone who homeschooled under the private-school option was in potential jeopardy. We at HSLDA did not learn about In re Rachel L. until it was too late because the trial was confidential, but the published appellate decision was public.

We, along with a coalition of legal groups friendly to homeschooling, successfully petitioned for rehearing. Within a few months the same appellate court that had ruled that homeschooling was illegal changed its mind and held that homeschooling was legal under the private school statute.

Ironically, the Court of Appeal relied on the statutory argument we had been perfecting for years in the welfare cases. The new opinion, In re Jonathan L., unequivocally held that homeschooling is legal in California under the private-school option.

But those old memos never seem to die. Earlier this year Sonoma County suspended benefits to Mrs. Fabiano’s (name changed to protect privacy) daughter when she turned 16 because she was homeschooled under the private-school statute. The county’s policy regarding school attendance was 12 years old and was clearly written with the old memo in mind.

This time attorney Jones was able to rely on the published Jonathan L. case from 2008. And the hearing officer was able to cite to a published appellate court decision when she rejected the county’s erroneous policy.

Where our homeschool freedoms are concerned there are no “small” cases.