Posted on 03/06/2008 3:20:54 PM PST by jdm
A recent California Court of Appeals case has been making some waves as the precursor to the end of homeschooling in this state. Michelle Malkin, Susan Duclos of Wake up America, and Darleen Click at Protein Wisdom have all noted it and discussed the implications of the case with some degree of outrage. I admit, it sounds pretty bad the way the LA Times writes:
Parents who lack teaching credentials cannot educate their children at home, according to a state appellate court ruling that is sending waves of fear through California's home schooling families.Advocates for the families vowed to appeal the decision to the state Supreme Court. Enforcement until then appears unlikely, but if the ruling stands, home-schooling supporters say California will have the most regressive law in the nation.
"This decision is a direct hit against every home schooler in California," said Brad Dacus, president of the Pacific Justice Institute, which represents the Sunland Christian School, which specializes in religious home schooling. "If the state Supreme Court does not reverse this . . . there will be nothing to prevent home-school witch hunts from being implemented in every corner of the state of California."
The ruling as described would effectively end homeschooling in California, and I agree that it would be an outrageous result. Fortunately, the LA Times misunderstood the case and that misunderstanding was carried over into the discussions of the bloggers listed above, who appear to have discovered the issue because they read the LA Times article or each other. (I am amused to discover that Memeorandum has aided the dissemination of an untrue meme.)
The short version: The LA Times got it wrong in the first sentence of their article. Parents without teaching credentials can still educate their children at home under the various exemptions to mandatory public school enrollment provided in § 48220 et seq. of the Cal. Ed. Code. The parents in this case lost because they claimed that the students were enrolled in a charter school and that with minimal supervision from the school, the children were free to skip classes so the mother could teach them at home. There is no basis in law for that argument. If only the parents had attempted to homeschool their kids in one of the statutorily prescribed methods, they would have prevailed.
On the flipside, I go into more detail about the case and just where the LA Times went wrong. Though fun and probably helpful for homeschool advocates, the OUTRAGE over this case is based on a completely manufactured premise. But they and the LA Times should be admonished for unnecessarily scaring parents.
The case is In re Rachel L and a copy of the appellate court's decision can be found here (PDF). The facts are not in dispute at this point and Susan summarizes them well:
The appellate court ruling stems from a case involving Lynwood parents Phillip and Mary Long, who were repeatedly referred to the Los Angeles County Department of Children and Family Services over various allegations, including claims of physical abuse, involving some of their eight children.All of the Long children were enrolled in Sunland Christian School, where they would occasionally take tests, but were educated in their home by their mother.
Background of this, via the Appellate ruling, shows that a Welfare and Institutions Code section 300 petition was filed on behalf of three minor children after the eldest of them reported physical and emotional mistreatment by the children’s father.
The Los Angeles County Department of Children and Family Services investigated the situation and discovered, among other things, that all eight of the children in the family had been home schooled by the mother rather than educated in a public or private school.
The attorney representing the younger two children asked the juvenile court to order that the children be enrolled in a public or private school.
The juvenile court held that even though the mothers' teaching was “lousy,” “meager,” and “bad,” there is a constitutional right to homeschooling (that right either belonging to the parents or to the child; it's not clear at this point). Before we go any further we should be clear that California has never recognized a constitutional right to homeschool children and no federal court has recognized a right to homeschool children. In fact, the U.S. Supreme Court has recognized the right of states to regulate child education because it is so crucial to the maintenance of "ordered liberty." So the juvenile court is out in left field on this point.
Under California law, attendance at a full-time day public school is compulsory for all children between the ages of 6 and 18. Parents wanting to take their kids out of the public schools must do so under one of the exceptions provided by the California Education Code. For the purposes of home schooling they are: § 48222 Attendance in private school or § 48224 Instruction by credentialed tutor. (There are other exceptions for short-term child actors, the mentally gifted, or leaves of absence, but they are not appropriate for homeschoolers.)
So, generally, parents have three options for educating their kids in California: (1) public school; (2) private school; or (3) credentialed tutor. This is not as bad for homeschoolers as it looks. To be a private school in California, all the parent has to do is be "capable of teaching" the required subjects in the English language and offer instruction in the same "branches of study" required to be taught in the public schools. They also have to keep a register of enrollment at their "school" and a record of attendance. Once a year they have to file an affidavit with the State Superintendent of Public Instruction with things like their names and address, the names of the students and their addresses, a criminal background check (since we don't want unsupervised felons teaching kids), and their attendance register. That's it.
In the Longs' case, they attempted to claim that their children were enrolled in a "valid charter school" and that the school was supervising the mothers' instruction in the home. It is unclear from the court's opinion, but it looks like the parents tried to argue that the children were enrolled in a public school (since all charter schools in California are public schools). But since they obviously couldn't meet any of the attendance requirements for public schools*, the court also examined the question of whether the parents were credentialed. Since they obviously aren't, the court kicked it back to the lower court to order them to "enroll their children in a public full-time day school, or a legally qualified private full-time day school." It looks like the parents never bothered to argue that they were running their own private school in compliance with § 48222.
*Some homeschoolers attempt to twist the "independent study" provision for public school education in § 51745 into a form of generalized homeschooling and that may be what the lawyers were trying to do in this case. Unfortunately, that statute is quite explicit that independent study not take the form of an "alternative curriculum" to that provided by the public school and that it not replace any courses required for a high school diploma.
In sum: homeschoolers, TAKE A BREATH. You are not about to be criminally charged for choosing to educate your children at home, as the LA Times and the various commentators I mentioned above imply. You can still homeschool your kids, assuming that you can pass a criminal background check and aren't totally incompetent. The lawyers for these parents and homeschool advocates all over the state are gleefully watching all the outrage this has stirred up, but I think they should be ashamed of themselves for terrifying the parents of homeschooled children.
We should all keep in mind that outrage is fun, but not necessarily harmless.
Those parents who are absolutely freaked out about this case and its implications should go here for more information on homeschooling your child under the private school exemption. I suggest you be sure and read numbers 12-14.
Oh yeah: I should note for the sake of completeness that there is a remedy issue in this ruling that probably makes a good argument on appeal (or at least an interesting one for remedies nerds), but that error does not impact the mistake made by the LA Times or my clarification of that mistake.
Come on now. Let's not make such far flung generalizations.
Are you aware that some 'normal' people have started their own public charter schools? Mine go to one of those. It's a charter/home study academy where they attend two days and do a lot of homework. In this way it is not required to do the gay/homo/global warming mandated curriculum that regular schools are forced to do.
The principal is a right wing Christian guy but the school is in no way a religious school. He wanted to operate a college prep and that's what he's running. It's public as the day is long but a SCHOOL, not an indoctrination camp for leftists.
It depends on how it plays out.
The following is what I received today from HSLDA.
Response to California
Appeals Court Ruling:
‘Homeschooling is Illegal’
Dear HSLDA Members and Friends:
On February 28, 2008, the California Court of Appeals issued a ruling in a juvenile court proceeding that declared that almost all forms of homeschooling in California are in violation of state law. (Private tutoring by certified teachers remains an option.) Moreover, the court ruled that parents possess no constitutional right to homeschool their children.
This case involved a family with a 20-year history of litigation in the juvenile courts over the care of their children. Prior adverse decisions had been rendered by the courts.
This family was not a member of Home School Legal Defense Association. They were represented by court-appointed counsel throughout the proceeding. Since it was by law a confidential proceeding, to the best of our knowledge neither HSLDA nor any other legal advocacy organization had any knowledge that the right of all homeschoolers in California was depending upon the outcome of this family’s case.
There are two appellate options at this time.
First, we have been told that the family is appealing this decision to the California Supreme Court with their California counsel.
HSLDA will file an amicus brief on behalf of our 13,500 member families in California. We will argue that a proper interpretation of California statutes makes it clear that parents may legally teach their own children under the private-school exemption. However, if the court disagrees with our statutory argument, we will argue that the California statutes as interpreted by the Court of Appeal violate the constitutional rights of parents to direct the education and upbringing of their children.
HSLDA welcomes other organizations and persons to assist with the amicus process so that a full defense of home education, religious freedom, and parental rights can be given to the California Supreme Court.
The second appellate option is to seek to have this particular decision “depublished.” Depublication is a decision that can only be made by the California Supreme Court. If the Court determines that the decision should stand, regarding this family, on the facts presented, but that the general pronouncements of law for all of homeschooling should not be determined by this case, then the Court has the option of “depublishing” the Court of Appeal’s decision. This would mean that the case is not binding precedent in California and has no effect on any other family.
HSLDA will take the lead in an effort to seek to have this case depublished.
Homeschooling has offered a great opportunity for families to give their children a quality education with a moral and philosophical approach that is consistent with each family’s beliefs.
The ability to homeschool freely in California should not depend upon one family in a closed-door proceeding. All families should have the right to be heard since the rights of all are clearly at stake.
Sincerely,
J. Michael Smith
HSLDA President
Thanks.
ping
Thank you. Keep up the good work.
This is exactly what I am calling for.
§ 48224. Children not attending a private, full-time, day school and who are being instructed in study and recitation for at least three hours a day for 175 days each calendar year by a private tutor or other person in the several branches of study required to be taught in the public schools of this state and in the English language shall be exempted. The tutor or other person shall hold a valid state credential for the grade taught. (emphasis mine) The instruction shall be offered between the hours of 8 o'clock a.m. and 4 o'clock p.m.Could it be that the claims of some of the forum members that California's requirements for becoming a legal homeschooling tutor are minimal are actually wrong and that the judge's call on stricter requirements for being a homeschool tutor was indeed a lose canon that has fired as a consequence of poorly worded code?
Also, it seems like trying to find the requirements for a valid teaching credential in California has been like trying to catch a greased pig. Here is what I've found so far.
"Individuals who hold a valid California teaching credential, which required (emphasis mine) a bachelor's degree and professional preparation program including student teaching, are exempt from the RICA requirement." California Commission on Teacher Credentialing(Why is the above statement written in past tense? Perhaps a historical statement? If it's another example of poor wording then please don't tell me.)
Finally, why are people seemingly trying to use the stereotype of crazy California judges to make an issue out of this thing when the voting majority basically has the power to have the kind of laws that they want? In other words, wherever the legal majority goes, there they are!
OK. Hold up a minute.
Let's say a kid gets sick and will be out of school for a month or two. (as happened to my daughter) The school sends the work home and the kid does the work *under the supervision of the parent* who turns it in for the kid.
This is not a terribly unusual situation. What would be wrong with the parents supervising the course-work if the school's OK with it?
The big question is this: What business does a judge have in this situation anyway? If the school is cool with it, the parents are doing alright and the kids are receiving an education, who cares??
You can use big bold letters and extra large fonts all you want, but you are still engaging in misdirection. 48224 is a red herring.
The California Department of Education accepts R-4s (the form they recommend to use to declare that one intends to have a private school) from individual homeschoolers declaring that they're private schools under section 48222. The plain language of the law supports that process, and so does the case law that comes after the precedents cited by the black-robed tyrants who call themselves “justices.”
sitetest
http://www.freerepublic.com/focus/f-news/1981745/posts
California Dems Introduce Bill To Allow Communist Indoctrination in Public Schools
Little Green Footballs ^ | 3-06-08 | Charles Johnson
Yes, that’s right. The headline is no exaggeration. California Democratic Sen. Alan Lowenthal has proposed an amendment to the Educational Code that will explicitly allow the promotion of Communism in schools, and also allow groups who want to violently overthrow the US government to meet on public school property.
Timing?
- Gov Schwarzanegger signs SB 777, enforcing mandated pro-homosexual agenda indoctrination in government (public) schools.
- The "California Exodus" campaign is one example of the reaction to this new law among Christian families who attend public schools: urging parents to remove their children from these 'camps' and either enroll them in private schools or homeschool them.
- Homeschooling in CA is made illegal, because of one family, affecting tens of thousands of homeschooling families alone.
-Election year... we've got a prospective marxist/socialist as our next President on the horizon... let this go through the courts up to SCOTUS. By that time, we may have a couple more Ruths on the court.
So, CA homeschooling families find all of their options removed. Just where the teachers/unions/hillarys/moonbats wanted all of us: cornered. My husband has very little faith that enough people care to organize and fight this fascist ruling. I am fairly optimistic that this will draw even those who never utter more than a pip out of their homes. After all, by the very act of homeschooling, are these families not activist to an extent?
Also, re SB 777 - the textbook companies are watching this closely. I have read CA is the largest school textbook buyer in the country, and they influence the rest of the books. Arnold can't be president of this country, but he sure has a lot of power in that pen.
bookmark
You can use big bold letters and extra large fonts all you want, but you are still engaging in misdirection. 48224 is a red herring.
The California Department of Education accepts R-4s (the form they recommend to use to declare that one intends to have a private school) from individual homeschoolers declaring that they're private schools under section 48222. The plain language of the law supports that process, and so does the case law that comes after the precedents cited by the black-robed tyrants who call themselves “justices.”
Thank you for emphasizing 48222. I'm an outsider interested in the homeschooling controversy and your reply helps me to understand the ropes better.
However...
I'm essentially applying basic reading rules to California's homeschooling code. And given that 48224 doesn't complement 48222, it remains that these sections of the code are poorly written, in my opinion. In fact, not only does 48224 evidently does not reflect the will of majority voters, but it's also evidently being ignored by education officials; big mistake.
Again, as I've mentioned elsewhere, 48224 was essentially a lose canon just waiting to be bumped the wrong way and go off - and it certainly has.
As I've mentioned elsewhere, the bottom line is that Californians need to follow in the footsteps of the states when the USSC decided against Georgia in Chisholm v. Georgia by making the 11th Amendment. In other words, Californians need to clean up their state's homeschooling code instead of blaming judge's who have to try to interpret the screwed up code in the first place.
i have filed an R$-Affadavit for the last 7 years, but have not done a criminal background check... who administers that?
in California they are not poorly written... they are not written at all... we have no homeschool laws in California... and that's how i want to keep it...
homeschooling laws seem to be poorly written.Ah, thanks for that tidbit. Now were getting somewhere. =^Oin California they are not poorly written... they are not written at all... we have no homeschool laws in California... and that's how i want to keep it...
Regarding the following from the other post, I shall continue my role as an outsider trying to make sense out of California homeschooling code.
Actually, this is the part of the California code that relates to qualification for a private tutor in the state of California. Thus, if you want to teach OTHER FOLKS’ kids (emphasized by Amendment10) privately, you must meet the requirements of section 48224.What's this OTHER FOLKS' kids stuff? You can say OTHER FOLKS' kids until you are blue in the face, but the idea is not properly codified. You've got to keep in mind that regardless if judges take liberties to "paraphrase" the code, you cannot.
As many California homeschoolers have actually directly said on many of these threads, most homeschoolers in California qualify through section 48222, not 48224, becoming a "private school" within their own home (emphasized by Amendment10). The qualifications cited to which you replied are for 48222, not 48224. To qualify through 48222, one must merely be “capable of teaching,” not a certified teacher.Home? What home? In fact, I searched for the word home on the page in question and it doesn't seem to be mentioned anywhere (corrections welcome).
CA Codes (edc:48220-48232)Again, I appreciate that you are telling me what Californians have been practicing with respect to homeschooling. However, the actual code does not necessarily reasonably the nuances that you are suggesting, in my opinion, regardless of your good intentions. In fact...
One problem with poorly written code is that it gives people, including judges, a license to make it mean anything that they want it to mean. You are demonstrating this as much as the judges are.
Basicaly, a tutor is someone you hire to teach your childern.
Homeschoolers teach only their own children. They file as a private school only. It is under the private school laws that homeschooling legally takes place. Tutoring is different in that you teach others children for money.
There are different laws for the tutor.
And then there are different laws for private schools, of which includes homeschoolers.
I have filed the R-4 affidavit for nine years here in California. I have never done a criminal background check on myself, or have I given the state my childs name. I do not charge others for my services. Therefore I do not need to have a teaching credential. If all private schools need a teaching credential, then it is not just homeschoolers that are being affected. ALL PRIVATE SCHOOLS WILL NEED TO HAVE CREDENTIALED TEACHERS WHICH NONE CURRENTLY DO.
Boy, I am getting sick of people thinking that they understand California homeschooling when they do not.
This guy doesn’t know what he is talking about. I have homeschooled here in California for nine years and I have never done a background check either. It is NOT required.
People who know nothing about California homeschooling laws are misreading and misapplying one section of code for homeschooling. It is wrong. You do NOT need to do a background check, ever! He is using the section that only applies for tutors. Homeschoolers file under the private school law. We are technically not tutors. We never were and I certainly don’t want to be under heavier laws that don’t apply.
I have stated elsewhere that I am an outsider who is trying to make sense out of California homeschooling code. Based on my examination of this code along with my discussion with sitetest, the problem with this code is that it is poorly written. The problem with poorly written code is that people can read anything that they want to into it - including the judges.
Then why do you mix up the tutoring rules with the private school rules?
It does not clarify but only muddies the waters. Tutors have entirely different standards which homeschoolers do NOT have a requirement to meet. Period.
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