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Attorney Deborah G. Stevenson, Executive Director

Bulletin #63 California Appeals Ruling 08/11/08

    (Please note that the following is not meant to provide legal advice to anyone. It is meant to provide the personal opinion of the author and to provide general educational information about the judicial system and this specific ruling.  Anyone reading the following opinion is advised to contact an attorney licensed to practice law in California for appropriate legal advice. Anyone seeking information about the ruling is advised to read the ruling in its entirety and/or to contact an attorney)

Did you know? Despite the statutory requirement for credentialed tutors in California, that an appeals court has now concluded that since the practice existed that parents (and perhaps the umbrella schools they might have been using) were home schooling their children as tutors without having credentials, that in fact, the court recognizes that practice as being deemed acceptable despite the existence of the law.

NHELD offered some background information on this case in our previous bulletin, Bulletin #60, regarding the initial California ruling (http://www.courtinfo.ca.gov/opinions/documents/B192878.PDF) about which it was claimed that “homeschooling was illegal” in California as a result of that ruling. The court’s ruling was revisited through an appeal process.

In that appeal of Jonathan L.et al., v. The Superior Court of Los Angeles County in the

State of California’s Court of Appeals (http://www.courtinfo.ca.gov/opinions/documents/B192878A.PDF), the court referred to home schooling as ”full time education in the home by a parent or guardian who does not necessarily possess a teaching credential.”

More importantly, the court issued two main conclusions:

“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.”

As the Appeals Court explained, the case arose after two children were declared dependent due to the abuse and neglect of their siblings, and their attorney sought an order that they be sent to private or public school, rather than be educated at home by their mother.

The Appeals Court further explained that the dependency court declined to issue such an order, “primarily based on its view that parents have an absolute constitutional right to home school their children.” The children’s counsel sought relief in the Appeals court by a petition for an extraordinary writ. The children’s counsel disagreed with the dependency court and continued the effort to have the children attend private or public school.

In February, the Appeals Court granted the petition, agreeing with the children’s attorney, on the bases that: “(1) California statutory law does not permit home schooling; and (2) this prohibition does not violate the U.S. Constitution.”

The Appeals Court later granted the father’s petition for a hearing, which was held in March 2008, in order to provide for further argument on the issues, including the consideration of “(1) additional California statutes that might bear upon the issue, and (2) potentially applicable provisions of the California Constitution.” The Appeals Court took under consideration the arguments made at the rehearing and issued its new decision in August 2008. (http://www.courtinfo.ca.gov/opinions/documents/B192878A.PDF),

While some have read the decision and are claiming that the Appeals Court “declared that homeschooling is legal” in California, and are touting it as a victory, a careful reading of the Appeals Court decision shows that, in fact, the Court did not “declare homeschooling to be legal in California”. The Appeals Court, in point of fact, correctly pointed out that it does not have the authority to make such a decision. The Appeals Court, as it did initially, explained what the existing law actually says about homeschooling and also what it doesn’t say, as well as what the legislature in California has “accepted” despite what the statutory law says.

Here are some particularly relevant quotes from the Appeals Court decision:

“It is important to recognize that it is not for us to consider, as a matter of policy, whether home schooling should be permitted in California. That job is for the Legislature. It is not the duty of the courts to make the law, we endeavor to interpret it.” (and that in and of itself is a refreshing statement!)

This is a particularly important statement. One that is in direct opposition to the headlines purporting to claim that the Court “declared homeschooling illegal” in February, and now in August has “declared homeschooling to be legal”. The Court could not be clearer about this issue. It is not the “job” of the Court to “declare” that homeschooling is “legal”. Again, the Court actually stated, “That job is for the Legislature.”

The Court went on to say, what the Legislature actually did, and did not do, in adopting laws regarding home schooling.

“Our first task, interpreting the law of California, is made more difficult in this case by legislative inaction. As we will discuss at length below, home schooling was initially expressly permitted in California, when the compulsory education law was enacted in 1903. In 1929, however, home schooling was amended out of the law, and children who were not educated in pubic or private schools could be taught privately only by a credentialed tutor. Case law in 1953 and 1961 confirmed this interpretation, and specifically concluded that a home school could not be considered a private school. While the Legislature could have amended the statutes in response to these cases, to expressly provide that a home school could be a private school, it did not do so. Thus, as of that time, given the history of the statutes and the Legislature’s implied concurrence in the case law interpreting them, the conclusion that home schooling was not permitted in California would seem to follow.”

In other words, the Legislature, by statutory law, specifically allowed home schooling. Then, the Legislature, by statutory law, amended the law to not allow home schooling, but to specifically allow children to be taught privately only by a credentialed tutor. That’s what the law was, and that’s what the Appeals Court stated in its February decision. That’s what the Appeals Court said, again, in its August decision. However, the Appeals Court in this August decision looked beyond what the statutory law actually says to acknowledge what the people of California have actually been doing, despite what the law actually says. The Appeals Court looked at other statutes that have the effect of acknowledging the fact that home schooling exists in California, despite the legislative requirement for credentialed tutors. As the Court explained,

“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 We are therefore confronted with: (1) compulsory education statutes which were apparently intended to eliminate the permission previously granted to home school; and (2) later enactments which reflect the Legislature’s understanding that the compulsory education statutes permit home schooling, as a species of private school education. Under these circumstances, it is our view that the proper course of action is to interpret the earlier statutes in light of the later ones, and to recognize, as controlling, the Legislature’s apparent acceptance of the proposition that home schools are permissible in California when conducted as private schools.”

The court also noted,

“….it is clear that some form of home schooling may be permissible under these statutes, when the independent study is under the general supervision of a credentialed employee of the school district or county office of education…

”It cannot reasonably be argued that home schooling conducted by a parent who is not a certified teacher satisfies the private tutor exemption from the compulsory education law. The language of the statute is clear and unequivocal; it permits private education by a tutor, but only when the tutor holds “a valid state credential for the grade taught”. Thus, we turn to principal question in this case: whether a home school can be considered a private school.”

The court concluded that the “statutory language is ambiguous on the question of a home school as a private school”

However, the court, nonetheless, recognized how parents have been home schooling and how the state has been accepting of that practice.

The legislature “has acted as though home schooling is, in fact, permitted in California.”

“…we find it significant that education and enforcement officials at both the state and local levels agree that home schools may constitute private schools.”

“It is estimated that there are 166,000 children being home schooled in California. It is a growing practice across the nation. The Legislature is aware that home schooling parents file affidavits as private schools, and has passed laws based on that awareness. The Department of Education has not challenged the practice, and the LAUSD has not asserted that the children of such parents are truant.”

The Appeals Court also did one more very important thing. The Court interpreted the law to mean that even though the United States Supreme Court has held that parents possess a constitutional right to direct the upbringing and education of their children, the Court can override that Constitutional right.

“We conclude that an order requiring a dependent child to attend school outside the home in order to protect that child’s safety is not an unconstitutional violation of the parents’ right to direct the education of their children.”

“Specifically, it is undisputed that a dependency court has the statutory authority to order that a dependent child attend school if within the best interests of the child’s safety. It is argued that this restriction is an unconstitutional violation of parents’ right to direct the education of their children. We conclude that the restriction is constitutional.”

“In this case, the dependency court declined to consider whether sending Jonathan and Mary Grace to public or traditional private school was necessary y to preserve their safety because it believed that parents posses an absolute constitutional right to home school. This is incorrect; no such absolute right to home school exists.”

The Court indicated that while the constitutionality of any other restriction on home schooling, including a prohibition on home schooling in its entirety, was not an issue in this case,

“the statutory permission to homeschool may constitutionally be overridden in order to protect the safety of a child who has been declared dependent.”

The Appeals Court remanded the case to the trial court to reconsider its decision in light of the decision of the Appeals Court.

The bottom line is this: The requirement existed that credentialed tutors were required, the practice existed that parents homeschooled without having credentials as tutors, the Legislature and state agencies accepted the practice despite the law, the Court recognized this occurred and concluded that because it occurred, the practice was accepted despite the existence of the law. More importantly, the Court held that despite the Constitutional rights of parents to the upbringing and education of their children, the state can override that right.

While NHELD is gratified that parents in California will be able to continue to homeschool as they did previously, we continue to admonish all parents to become fully informed of what the statutes in their state actually say and to adhere to the provisions of those statutes. If parents do not agree with the requirements in those statutes, the appropriate way pursuant to the Constitution to change that law is by an appeal to the Legislature of that state, not to the Courts.

Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense. – www.nheld.com or email : info@nheld.com

Judy Aron - Director of Research, NHELD – imjfaron@sbcglobal.net