That was the question on many parents' minds after February 28, 2008, the day the California Court of Appeal for the Second Appellate District in Los Angeles declared homeschooling illegal in the Golden State unless the parent is a certified teacher.
"My first reaction was, 'How could they possibly do that?' " says Grace Andrus, who serves as the mayor of the Crescenta Valley Town Council, California, and is a homeschooling mother of four.
Home School Legal Defense Association President Mike Smith shared Andrus' reaction. "To say that I was shocked that the court in California ruled that teacher's certification was the only legal way to teach a child in California is putting it mildly," he says. "It reminded me of the days when HSLDA began 25 years ago and teacher's certification was the 'sacred cow' that states were clinging to in an effort to keep homeschooling from becoming a viable option."
The facts started coming together-the case in question, In re Rachel L. , concerned the L family, homeschoolers (not HSLDA members) involved in a juvenile dependency matter unrelated to homeschooling. Homeschooling became an issue in the case when the children's court-appointed attorneys asked the court to order that the children be sent to public or private school for their safety. When the judge refused, believing the parents had a constitutional right to educate their children, the children's attorneys filed a writ in the California Court of Appeal for the Second Appellate District. Rather than review the juvenile court's decision about safety, the Court of Appeal then decided that homeschooling is illegal in California unless the parent possesses teacher certification. It was a closed, confidential proceeding-until the decision was handed down, only the parties involved knew about it.
"I do not think the court had any concept of the magnitude of its ruling, the number of students being home educated in California, or that this opinion would raise hackles all across the United States and be criticized in almost every op-ed piece of almost every major newspaper," says Smith.
Quoted from the decision In re Rachel L. , from the Court of Appeal of the State of California, Second Appellate District, Division Three.
In the days that followed, homeschoolers and many others around the nation held their breath, waiting to see how the situation would develop. What did the court's decision mean? California member families called HSLDA, wondering if they should move out of the state, or when a truant officer would come knocking at their door and demand their children.
"People were clamoring for details, wanting to know how much it affected them and their immediate ability to homeschool," says Roy Hanson, director of Private and Home Educators of California, a program of Family Protection Ministries (FPM).
As the media churned out articles and radio shows picked up the story, the general public joined homeschoolers in expressing disbelief that an educational alternative as solidly established as homeschooling was actually being called illegal.
"The public has been outraged," says Mike Farris, chairman of HSLDA. "I've got a good friend who is a public school teacher in Berkeley, California, and she is outraged. I participate in an internet forum of people from all over the world-people of every imaginable stripe-and I've heard a lot of outrage from that quarter, too."
In late March, the L family's attorney submitted a petition for rehearing to the appeals court-researched and written with substantial assistance from HSLDA. On March 25, 2008, in a remarkable turn of events, the court granted the petition. The court's decision to rehear the case automatically voids the previous court opinion declaring homeschooling to be illegal.
"It was vacated, which means it was erased, but it doesn't mean the judges' philosophies have changed-we're going to get another decision by the same judges and we don't know how that's going to come out," Farris cautions.
Courtesy of the family
Be involved and be a good testimony: That's the response of Dan and Grace Andrus, who homeschool their four children in La Crescenta, California.
"I was very relieved when the rehearing was announced," says Mary Schofield, vice president of Christian Home Educators Association of California (CHEA). "At least parents have time to finish up their school year, and we have more time to inform people that homeschooling is not going to end."
The Court of Appeal is now considering a second brief filed by the L family, who are represented by attorneys from the United States Justice Foundation and the Alliance Defense Fund. HSLDA attorneys again contributed to the brief. Submitted to the court on April 28, 2008, the brief argues that homeschooling under the private school exemption from public school attendance is a legal and constitutional option in California.
The court also invited several parties to file amicus briefs and scheduled oral arguments for June. Invited parties include the California State Superintendent of Public Instruction, the California Department of Education, the Los Angeles Unified School District, and the California Federation of Teachers. The court also announced that it will consider "timely applications from other interested parties ." 1
In its letter to the invited parties, the Court of Appeal has asked them to address the following questions in their briefs:
Do California statutes permit homeschooling by the means used by Sunland [the private school through which the L family did "independent study"]; that is, by enrolling the children in a private school which apparently exists only to enable the parents to homeschool their children via independent study?
Do California statutes otherwise permit homeschooling, by means of parents creating their own home-based private schools and, if so, upon what conditions?
In light of the answers to the above questions, does the California legislative scheme violate the U.S. Constitution, with respect to the free exercise of religion and parental control rights of parents who desire to homeschool their children? 2
HSLDA will be submitting an amicus brief to the court. California's major statewide homeschool organizations will also be submitting an amicus brief. To ensure a unified yet multi-faceted message, HSLDA and the homeschool organizations are working together to coordinate the content of their briefs. "HSLDA's brief will be about the success of homeschooling," says Jim Mason, HSLDA litigation counsel.
The court hands down rulings on its own timetable. Its first ruling in this case was handed down just three months after the oral argument. "It may rule before the end of summer," says Mason, "or we may have to wait a little longer."
"We ask people to be in prayer and to stay alert because whenever this decision is released, there will be a flurry of activity," says Farris.
Is Homeschooling Legal in California?
Yes! Although the law doesn't contain the word homeschooling , four viable options for this educational alternative exist in California. 3 Based upon the California Education Code (EC), parents can:
Establish a private school;
Employ a certified tutor;
Enroll in a private school independent study program (ISP); or
Enroll in an independent study program through a public school.
HSLDA/Art Cox
"From a legal standpoint, the opinion was just not well crafted," says HSLDA Litigation Counsel Jim Mason.
The private school exemption from public school attendance can be applied to homeschoolers. The actual statute governing private schools in California says, "Children who are being instructed in a private full-time day school by persons capable of teaching shall be exempted" 4 (italics added). There is no requirement that the teacher of a private school be certified. The statute goes on to list the other requirements for private full-time day schools:
Instruction shall be in English;
Instruction must be "in the several branches of study required to be taught in the public schools of the state";
Pupil attendance must be kept in a register, and "the record of attendance shall indicate clearly every absence of the pupil from school for a half day or more during each day that school is maintained during the year"; and
The owner or other head of a private school must annually file an affidavit or statement of prescribed information with the California Superintendent of Public Instruction.
"HSLDA has successfully contended for years that the private school exemption applies to homeschoolers," says Mike Smith. "It's a proper statutory interpretation, and constitutionally, we believe we're right in using it. There is nothing in the private school law that prevents an individual from filing a private school affidavit, thereby setting up a private school in their home."
"We have a good homeschool law in California because we are one of the 12 states where we operate under the private school exemption," says Roy Hanson. "We don't want to lose that."
The two private school options were threatened by the original Court of Appeal decision; with the decision being vacated, however, the law is now interpreted as it always was. Although Californians have been homeschooling under the private school exemption for over 20 years, the fact that the law doesn't directly mention homeschooling has been leveraged by opponents to argue against the private school option. The reasons for their opposition are simple. Public schools receive federal and state average daily attendance (ADA) funding based on the number of students in attendance. To the school districts, homeschoolers represent money that they aren't receiving. Officials also claim they're afraid homeschoolers will slip through the cracks and more regulation is needed. Others just do not trust parents to teach their own children.
"Some people argue that the right to homeschool as a private school is a loophole in the law," says Debbie Schwarzer, co-chair of the legal team for the HomeSchool Association of California (HSC). "It's not a loophole; it's as plain as the nose on my face that anybody can start a private school. We're behaving legally and above board and doing exactly what the big Catholic high school down the street does."
Courtesy of Roy Hanson
FPM Director Roy Hanson and Legislative Liaison Jim Davis believe that "we have a good homeschool law under the private school exemption-we don't want to lose that."
"For a three-judge panel to declare that all California homeschoolers would need a teaching credential in order to homeschool legally just didn't fit with existing state law or custom," explains Karen Taylor, vice president of the California Homeschool Network (CHN). "Both the California Department of Education and California's legislators have been fully aware that parents were teaching their children, and that private school law says that the teacher must be capable of teaching, without defining that further."
Where Did the Court Decision Go Wrong?
"From a legal standpoint, the opinion was just not well crafted," says Jim Mason. "The court only looked at old cases, and there's a much larger body of legal and legislative history that they should have looked at-none of that was mentioned. I was pretty confident that the reason they didn't mention it was because none of the parties involved in the case brought it to their attention."
In its decision, the three-judge panel for the Court of Appeal relied heavily on the reasoning of two outdated cases referenced in the section of California's Education Code dealing with the private school exemption. In so doing, the court neglected other important facts that shed light on the legality of homeschooling under the private school exemption. Some of these facts are
The California Department of Education (CDE) supports private homeschoolers without a teaching credential,
A 1998 amendment to California's Education Code recognizes homeschooling parents as private school teachers,
Teacher certification is no longer required for homeschooling parents in any part of the U.S., and
Today, private homeschooling in California and throughout the 50 states is an established, successful educational alternative.
The California Department of Education spells out how homeschoolers can create a private school in the home. According to the CDE website, "A parent offering or providing private school instruction and who meets the requirements of EC Section 33190 may file an Affidavit in the manner described." 5 Although a few CDE officials have expressed vehement opposition to homeschooling at different times over the years, the CDE's historical position toward homeschoolers has been one of support.
In a statement on March 11, 2008, State Superintendent of Public Instruction Jack O'Connell reaffirmed CDE's support: "I have reviewed this case, and I want to assure parents that choose to home school that California Department of Education policy will not change in any way as a result of this ruling. Parents still have the right to home school in our state . [S]ome parents choose to send their children to private schools or to home school, and I respect that right." 6
HSLDA/Peter Cutts Photography Inc.
The number one goal is to ensure homeschoolers' continued ability to be legal by complying with the private school law, insist HSLDA Chairman Mike Farris and President Mike Smith.
O'Connell took office in 2003, succeeding former superintendent (and aggressive opponent of homeschooling) Delaine Eastin. After O'Connell became superintendent, he promptly ordered the removal of wording put on the CDE website during Eastin's term declaring homeschooling to be illegal. "The legal climate surrounding homeschooling calmed down considerably," says Debbie Schwarzer.
Mary Schofield agrees. "We've not had significant battles since Delaine Eastin left office," she says.
Additionally, California Governor Arnold Schwarzenegger took a firm stand beside homeschoolers. In a March 7 press release, Schwarzenegger stated that "Every California child deserves a quality education and parents should have the right to decide what's best for their children. Parents should not be penalized for acting in the best interests of their children's education. This outrageous ruling must be overturned by the courts and if the courts don't protect parents' rights then, as elected officials, we will." 7
Top government officials aren't the only ones backing HSLDA's interpretation of the law. As already mentioned, the California Education Code itself acknowledges California parents who homeschool under the private school exemption. In its decision, the Court of Appeal neglected to consider a crucial amendment to the EC. The code states that anyone who teaches children in a private school must have a criminal background check and submit fingerprints. However, the background check and fingerprint requirement was amended in 1998 to exempt "a parent or legal guardian working exclusively with his or her children." 8
"If it isn't legal for parents to teach their own kids at home under the private school exemption, what other possible circumstance could the legislature have had in mind where 'a parent working exclusively with his or her children' would exist?" says Jim Mason. "There isn't any."
The history of this amendment clarifies the meaning completely. Family Protection Ministries, in consultation with HSLDA, requested that this exception become part of the statute. The intent of the amendment is to protect homeschooling parents under the private school law.
Teacher certification is another issue that the Court of Appeal addressed without looking at all the facts. Today, no state in the U.S. requires a parent to be certified to teach their children at home-in 1993, Michigan became the last state to abolish the requirement for homeschoolers.
"Most homeschooling parents are uncertified," says Mike Smith. "Requiring certification would put an impossible burden on these parents, who are already doing an excellent job with their children."
The California Court of Appeal would be hard-pressed to demonstrate a need for teacher certification among today's homeschoolers. Aside from the fact that no other states require it, education research shows no correlation between teacher certification and student performance, and more specific statistics show that whether or not a homeschooling parent is certified as a teacher has no effect on a homeschooled student's academic performance. 9
Courtesy of the family
"This is an attack, but we're going to win," says Marcia Neill (front row, left), homeschooling mother and director of the St. Michael the Archangel Academy Private School.
In its decision, the Court of Appeal also substantially relied on the findings of two outdated cases, from 1953 and 1961. "The court looked at cases that are older than dirt, one being virtually irrelevant because of the growth and maturity of the homeschool movement as compared to 55 years ago," says Mike Smith.
For instance, in the 1953 case, People v. Turner , the court ruled against a family homeschooling as a private school. One of the problems with Turner is its method of reasoning. In balancing the interest of the state and the interest of the parents, the court relied on the older "reasonableness" test, which has since been declared invalid in situations dealing with fundamental rights. Today, instead of using the "reasonableness" test, the court would be required to apply the "compelling interest/least restrictive means" test. In other words, the court would have to demonstrate that requiring parents to be credentialed teachers before teaching their own children is the least restrictive means to achieving the state's interest. Because of the success of home education, and the fact that no other state requires a homeschooling parent to be a certified teacher, such an argument would be difficult to uphold.
Furthermore, the decision in Turner was based on the court's belief that monitoring homeschools would be too burdensome for local school districts. However, the private school affidavit filing requirement was added to the Education Code in 1976, placing very little supervision responsibility on school districts. In fact, school districts are not even given the power to inspect, regulate, or approve a private school. In effect, therefore, the foundation of the Turner decision has been rendered moot.
In the second court case, In re Shinn , the court followed the example of Turner in relying on the now outdated "reasonableness" test when determining whether or not a homeschooling family met the requirements to operate a private school. The court determined that the family was not in compliance with the private school requirements, but the logical conclusion is that if the family had been meeting the requirements, their homeschool would have been considered a private school under California law. As a result, this case actually supports homeschooling under the private school exemption.
There's more. Tens of thousands of children are being homeschooled in California today. Homeschooling is not a fringe movement, and the academic success of homeschooling is well documented and acknowledged by the media and general public.
"One of the things that HSLDA will do in its amicus brief is point out the benefits of home education," says Smith. "It's possible that this court had no concept of what homeschooling is today."
"Homeschooling is not typically done by people who don't love and deeply care for their children," says parent Grace Andrus. "People who stop their careers as I did (the position as mayor being a 'spare time,' voluntary elected position) to stay home with their children, spending quality time teaching them, are likely not abusive people."
"It's important that we fight the bias and prejudice that are often placed on homeschooling families," she continues. "Overall, test scores for homeschoolers are good. Therefore, you can conclude that most homeschoolers are being taught very well."
Mary Schofield of CHEA agrees. "The idea that homeschooling is some kind of new, odd thing has passed," she says. "I've been able to share with legislators that this is not a social experiment that parents are doing with their children. Homeschooling has been actively going on in California for at least 25 years. We have a proven track record-history behind us-that homeschooling works."
What's Next for Homeschoolers in California and the U.S.?
Mike Farris acknowledges the possibility that the Court of Appeal case could be part of an anti-freedom trend, fueled by statist officials who believe that without the government, parents cannot successfully raise children. He likens the California Court of Appeal's original decision to the 2003 decision of the Federal Constitutional Court of Germany, which held that the interests of the state and of society in general override a parent's right to homeschool (this ruling was upheld in 2006 by the European Court of Human Rights).
"The question is whether or not this California decision is a throwback to the dark days of the early 1980s, or whether it's the forerunner of the new Dark Ages foreshadowed by the Federal Constitutional Court of Germany," says Farris.
"There are any number of ways the court could rule," says Jim Mason. "It's all conjecture at this point. Whatever happens, HSLDA will be evaluating the next step."
Mike Smith advises homeschoolers to continue homeschooling. "Until the decision comes down, we operate as we always have," he says. "We certainly don't want to see people leaving the state of California because of this decision."
A United Front
As homeschoolers await the outcome of In re Rachel L ., it's crucial for them to stay informed and united. "We've been through battles before," says Roy Hanson, director of Private and Home Educators of California, recalling some of the challenges of the early 1980s. "God is sovereignly involved, and we just need to trust Him and also take care of our personal responsibilities. God has raised up a great set of moms and dads and leaders for a time such as this."
California's major statewide private homeschool organizations have mobilized and, together with HSLDA, are working to keep concerned citizens informed and lobby the California State Legislature in support of the legality of homeschooling under the private school law. ( Read the organizations' joint statement , issued in March.)
"We all have different constituencies; we all have different larger agendas, but we're all united on what's important," says Debbie Schwarzer. "We knew it was important to have a united front."
At this stage of the battle, while the organizations are collaborating on the amicus briefs that will be submitted to the Court of Appeal in May, the most important goal is to prevent the California legislature from creating a homeschool law. Attempts to define homeschooling in a new law will almost certainly result in tighter government control over home educators.
"The current law that private schools have to comply with is the best we could possibly hope for," says Mike Farris. "Our number one goal is to make sure that homeschools in California have the continued ability to be legal by complying with the private school law."
"Governor Schwarzenegger indicated that if the court did not fix this problem of deprivation of parental rights, then it would be corrected in other ways, hinting that the legislature should fix the problems," says Mike Smith. "Legislation would certainly not be our first, or even our second choice."
Hanson says that the moment news of the Court of Appeal decision broke, his organization was scrambling to stop well-meaning legislators from introducing legislation that would be premature and dangerous to homeschooling freedom. "We stopped at least three different efforts," he says.
Lobbying is another key objective of these statewide homeschool organizations. "We've been working directly and intensely with the legislature," says Hanson. He and his staff distribute information about the success of homeschooling and the legality of homeschooling in California, encourage support of Assembly Concurrent Resolution (ACR) 115 (a resolution simply stating support for homeschool freedom), and explain that a homeschool law is unnecessary.
Debbie Schwarzer stresses the need to convince legislators of the diversity of homeschoolers. "I think one of the most important things is to convince legislators in Sacramento that homeschooling isn't a partisan issue," she says.
What Can Homeschoolers Do Right Now?
As you wait for the Court of Appeal to issue a new decision, here are some things you can do to help protect homeschool freedom:
Stay informed and alert. Visit HSLDA's California homepage for updates and sign up for HSLDA's free e-lert service to receive up-to-the-minute emails. Karen Taylor of CHN encourages parents to know their state education law for themselves. "If we [CHN] simply tell parents they have the right to homeschool, they might still have some nagging doubts. But if they know where to read the educational code that applies to them, their knowledge will be firsthand," she says.
Join a state homeschool organization that can give you support and accurate, updated information.
Join HSLDA. With a staff of attorneys well-versed in the homeschool law of all 50 states, HSLDA offers its members 24/7 legal protection. Should your family ever face a court situation or a run-in with government officials that concerns homeschooling, you can contact us for assistance.
"The L family was doing it on their own and didn't join HSLDA," says Roy Hanson. "It would have been totally different had they been members of HSLDA. They would have gotten better counsel. This wouldn't have happened."
"I encourage homeschoolers to join HSLDA," says homeschooling dad Dan Andrus. "Make sure you have it. It's not worth the $100 you're going to save by not having it."
If you hear or know of any state homeschool legislation being created , report it to Private and Home Educators of California (a part of Family Protection Ministries). Call 916-786-3523 or email contact@pheofca.org if you find out about any legislation that has not already been reported. By working together, we have a better chance of defeating any attempts to regulate homeschooling.
Support Family Protection Ministries as it works full-time in Sacramento with the legislature and governor's office to protect homeschool freedoms. FPM is in critical need of increased financial support to continue its work. To make a donation, please visit www.pheofca.org/donate.html or call 916-786-3523.
Support ACR 115. Sponsored by California State Assembly Member Joel Anderson, ACR 115 supports homeschooling and states that the Court of Appeal's decision in In re Rachel L . was misguided. ACR 115 does not change any existing laws and it will not create a new law. You can help support this resolution by following the action steps on the latest Joint Action Alert from Private and Home Educators of California and HSLDA. Click here to read the alert.
Mary Schofield says CHEA requested the help of its members to write and call legislators to support ACR 115. "Some of the legislators showed me plastic bins full of letters from constituents, asking them to support homeschooling and in particular to support the resolution," says Schofield. "Our members have been very helpful."
Don't contact California legislators, or the Supreme Court, about the Court of Appeal decision. HSLDA urges parents to refrain from calling or emailing legislators and the Supreme Court regarding the specific issue of the Court of Appeal decision, especially since that original decision is no longer in effect. Frequent contacts on this issue would likely irritate these leaders and/or may spark attempts to define homeschooling through legislation.
On the other hand, visiting your legislator simply to introduce yourself and explain the benefits of homeschooling could provide a positive connection. FPM, in teamwork with CHEA and HSLDA, has developed a "Legislator Packet" for this purpose. To request this packet, call FPM at 916-786-3523. CHN and HSC have also developed materials for their members. Visit the California Home School Network website and to Homeschool Association of California's Legislative Outreach to view this information and/or request details.
Be an ambassador for homeschooling. While many people have expressed support for homeschoolers and homeschool freedom in California during this crisis, others have claimed that more oversight is required. "We have a PR problem," says Schwarzer. "We need to show the public that homeschoolers are just like any of their other neighbors-they're responsible people, their kids are well-behaved." The HomeSchool Association of California urges homeschoolers to write letters to the editors of their newspapers, demonstrating the success of homeschooling. "Help the world see that what you're doing is positive," explains Schwarzer.
"It's important to be involved," says homeschooling mom Grace Andrus. "Sign petitions, call your representatives, be careful for whom and what you cast your vote. Be a good testimony. During the day, homeschool. Don't be out at the gym, or out to lunch, or shopping in the mall."
"Don't be afraid that you're homeschooling. Do your best," encourages Marcia Neill, a homeschooling mom in Irvine, California. "Families from state to state need to be a team. This is just another opportunity for all homeschoolers to show their support and loyalty to each other."
Pray for a positive outcome in the case, and pray for those involved: the L family, attorneys, judges, and homeschool organizations in California. Remember California homeschoolers in prayer as well.
Mary Schofield encourages parents to "continue doing what you're doing-an outstanding job of raising and educating your children." She continues, "In the early days of homeschooling in the 1980s, most homeschoolers were told erroneously by government officials that homeschooling was illegal-and it didn't stop us."
Confidence for the Future
So, can you still homeschool with confidence in California? Yes. Though this court case has shaken homeschooling families across the U.S., it is also yet another opportunity to remember our history, stand together, and take prayerful action. When threatened in the past, homeschoolers have again and again reaped the rewards of God's protection and blessing.
"We all need to stand together and advocate for freedom as we truly have received a wake-up call from the appellate court in California," says Mike Smith. "And we certainly urge you to encourage homeschooling friends and family who are not members of HSLDA to join."
"The reason that we should feel confident in the long haul is that the American public believes in our rights," says Mike Farris. "The reason we should have confidence spiritually is that God has got an amazing record of protecting our liberties."
1. Court of Appeal for the State of California, Second Appellate District, Letter to Counsel, Re: In re Rachel L., et al ., March 25, 2008.
2. Ibid.
3. For more details, read HSLDA's legal analysis on California at www.hslda.org/CA.
4. California Education Code, sec. 48222, www.cde.ca.gov/re/lr/cl.
5. California Department of Education, "Private Schools [sic] Frequently Asked Questions," Question 14, www.cde.ca.gov/sp/ps/cd/psfaq.asp#psfaqs13.
6. California Department of Education, "Schools Chief Jack O'Connell Issues Statement Regarding Home Schooling in California," March 11, 2008, www.cde.ca.gov/nr/ne/yr08/yr08rel28.asp.
7. Office of the Governor, "Gov. Schwarzenegger Issues Statement Regarding Court of Appeals Home Schooling Ruling," March 7, 2008, http://gov.ca.gov/index.php?/print-version/press-release/8951.
8. California Education Code, sec. 44237(a)(4), www.cde.ca.gov/re/lr/cl.
9. Christopher J. Klicka, "The Myth of Teacher Qualifications," September 2007, www.hslda.org/teacherqualifications; Lawrence M. Rudner, Home Schooling Works , HSLDA, 1999.
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