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March 10, 2008

My friend Dorothy Werner on the California home schooling case

I asked my friend Dorothy Werner for the skinny on a judge's decision last week to outlaw homeschooling by non-credentialed parents in California. Dorothy has been a member of the Illinois Coalition of Non-Public Schools since 1987, and recently left Clonlara School's home-based education program after decades of service. Turns out, as I expected, there's a lot of work for homeschooling advocates to undo a shitty, ignorant decision, but Gov. Schwarzenegger is on the side of the angels, for once. However, as I said in my previous post on the matter, passing legislation on what homeschooling is is not a good idea. It's much better to have a broad law that explains what schools and other educators do to prepare students for life. And, as the representative for the HomeSchoolers of CA points out in the message found below after the jump, the teachers' unions will not permit homeschooling to be enshrined in California's statues without and ugly and expensive battle.
I spent the weekend at the InHome conference with Mary Griffith from HomeSchoolers of CA. They are filing with CA supreme Court to have the appellate opinion Depublished. Arnold has also promised to have the legislature write a statute making it clear that HSers have the right to register as private schools and teach their own kids. The family in question definitely should not be [homeschooling]. The guardian ad litem that filed and appealed the case on behalf of two of the kids was right [to file to remove the kids from the home]. The Judge was just really ignorant and sloppy.
More after the jump, including what Dorothy calls "the best summary of the legal case I've seen".... Forwarded with permission from The HomeSchool Association of California
Hype about the case and plea to remain calm I have been astonished about the hype about this case. So many have been making sensational claims that parents will be criminally prosecuted, etc. Please rest assured about a number of things. First, the law, other than this court's interpretation, hasn't changed. Parents involved in a truancy prosecution might face criminal charges, but only after a rather lengthy series of hearings and court orders, and only if the parents failed to comply with the orders. It would be a criminal contempt charge, which isn't nothing but doesn't land you in Pelican Bay. We have never known conscientious parents ever to be prosecuted under truancy laws to the point of contempt charges. It's highly unlikely. The media also appear to be saying that no one can teach their children without a credential. I am not certain that the holding is that broad, and I also doubt it would survive legal challenge. The holding really applied to private ISPs (there are persistent mistatements, that began with fact statements in the case, that the family was enrolled in a charter. Obviously a school with the name "Christian" in it wouldn't be a public charter. It was a private ISP). It could be read by someone reading broadly as applying to any situation where the child is not continuously in the presence of a credentialed teacher. The court started on a very slippery path of appearing to think that some situations were OK and others weren't, effectively trying to enact an entire code of regulations for governing this situation from the bench. He hasn't been given the constitutional authority, of course, to do this. How do we get rid of this case? There are a number of paths. One is seeking actual review by the Supreme Court. HSC and at least several of the other major groups' legal teams aren't in favor of that. Even if you could get the court to accept your petition (they only take 3-5% of cases), the chances that it will be decided the way you want aren't real good. It's a very dangerous road to take, because if the Supreme Court were to affirm the appellate court ruling on either of the main points (constitutional or statutory), there aren't many options left. The constitutional argument, of course, could be appealed to the US Supreme Court, but the statutory case about the proper interpretation of the California Education Code could not. California Supreme Court is the last stop on that road. If that happens, then you have two bad choices that I'll discuss below. There is another much easier choice, and it's the one we want, as well as the one being trumpeted in the HSLDA petition. You ask the California Supreme Court to depublish the opinion, or, in other words, have them say that while this might have been the right result in this particular case involving this particular set of facts, the court finds that the reach of the opinion is overbroad and should not become law for the entire state. That is the choice we all (meaning HSC and, I believe, the other groups) want. You get this by filing a letter with the Supreme Court in compliance with the applicable rules of court. While anyone can file one by stating their interest, we DO NOT think it is an appropriate use of grassroots activism. We DO NOT want every HSC member or HSLDA member or grandmother or irate citizen dashing off their letters to the Supreme Court. There are sober, measured, legal arguments to make about why depublication is appropriate, and those arguments are made after researching the applicable standards, etc. The Supreme Court will not be swayed positively by public outcry. In fact, it could backfire, and backfire badly. If the Supreme Court affirms on the statutory points, then the two bad choices are to either seek legislation or to do nothing and hope that a further case is brought that can involve a better set of facts and better explanation of the issues (and reaching a better result). Both are very dangerous. Legislation isn't the answer because of the extraordinary strength of the teachers' union. It is unlikely we will see any legislation ultimately pass that gives us the freedom we have today. And the second choice is dangerous. I know lots of families that would make terrific test case defendants -- they're conscientious, they actually get their kids educated, they follow the laws. But we don't get to pick who the family is. As a friend of mine said, we couldn't have gotten a worse set of facts for this case if we had a contest. We are trying to get one or more of the fanciest law firms in the state to help us on taking the fangs out of this case. We know what we're doing. Please let us do our jobs. I would be personally, professionally, and, as a representative of HSC, globally grateful if everyone on this list would calm down and ask others to calm down. Specifically, I would ask people: a. Not to write to the Supreme Court or any court. b. Not to talk to their legislators or make any public statements about a need for legislation. c. Tell their neighbors, friends, lists, groups both of the above and to educate them about the choices available and about how panic isn't necessary, marches on Sacramento aren't necessary, etc. I wish this were the type of situation where we could put the fury, passion and energy of the members of this list to good use. Trust me, if we end up having to go the legislative route, we will have that situation at some points. But this isn't that type of situation, and too many folks stirring things up hurts instead of helps. Thanks for listening. Debbie Schwarzer HSC Legal Team Co-chair
_________________________________________________________________ Statement by the Wisconsin Parents Association on the California court ruling:
Dear WPA Members, Summary:This email is in response to requests for information about a recent California appeals court ruling. All the major homeschooling organizations in California, including both religious and secular ones, are working together on this. They are asking California homeschoolers to remain calm, continue homeschooling as they have been, and wait for further information. WPA recommends that homeschoolers in Wisconsin support this request and not sign a petition being circulated by the Home School Legal Defense Association (HSLDA) or take other action at this time. WPA will continue to track this issue and inform you if, at any point, action by Wisconsin homeschoolers would be helpful. Details:A lot of attention has been given to a February 28, 2008, California appeals court decision concerning a family charged in juvenile court with child abuse and neglect. The family also happened to be homeschooling. The appeals court went far beyond the charge of abuse and neglect and issued an opinion that has been interpreted by some to render any education not conducted under the authority of a certified teacher to be illegal. The opinion has been criticized by a variety of people, including Governor Arnold Schwarzenneger. All the major statewide homeschooling organizations, both religious and secular, are asking homeschoolers to go about their business as usual, not to panic, not to contact their legislators, not to write to the California Supreme Court, and to give the organizations time. HSLDA has gotten involved and is circulating and strongly urging people to sign a petition addressed to the California Supreme Court. WPA suggests that homeschoolers NOT sign the petition for several reasons, including the following: The major California homeschooling organizations, including those that are religiously based, have not called for signing the petition. In fact, there is concern about possible backlash if lots of people contact the court. WPA has consistently argued that homeschooling issues in a given state should be addressed by homeschoolers in that state and has opposed intervention by outside experts. Because HSLDA is not a party to the case, it does not have the authority to submit the petition and signatures to the California Supreme Court. HSLDA has a history of inserting itself into highly visible court cases. When the cases have been decided in favor of homeschoolers, HSLDA has tended to take undue credit. Many more of the cases have led either to a decision that limits or undermines homeschooling freedoms or one that leads to legislation that regulates homeschooling strongly and unnecessarily. [...] Larry Kaseman, Executive Director Wisconsin Parents Association www.homeschooling-wpa.org
__________________________________________________________
Dorothy Werner: "Here's the best summary of the legal case I've seen--it's by Linda Conrad-Jansen, who is co-chair with Debbie Schwarzer of the HSC legal team:"
On February 28, 2008, one of the appellate courts in California (Second District, Division 3) held in In re Rachel L. that parents do not have a constitutional right to home school their children. The appellate court stated, "enrollment and attendance in a public full-time day school is required by California law for minor children unless (1) the child is enrolled in a private full-time day school and actually attends that private school, (2) the child is tutored by a person holding a valid state teaching credential for the grade being taught, or (3) one of the other few statutory exemptions to compulsory public school attendance (Ed.Code section 48220 et seq.) applies to the child." The court held that the parents had not demonstrated that any of the exemptions in the Education Code applied because the children were enrolled in a private school independent study program. According to the opinion and a companion unpublished opinion, this case arose out of a series of dependency cases involving physical, emotional, and sexual [by an unrelated individual] abuse allegations. In the underlying case, the juvenile court thought the home schooling the children were receiving was "lousy,""meager," and "bad," and isolated the children. But it thought the parents had a constitutional right to home school their children and would not order them to send the children to public or a campus-based private school. The attorney representing the 6 and 9 year old children appealed. The appellate court cited the need for an educated citizenry set forth in the California Constitution, and two old California homeschooling cases, In re Shinn (1961) 195 Cal.App.2d 683, 686-687 and People v. Turner (1953) 121 Cal.App.2d Supp. 861, 865. In re Shinn cited Pierce v. Society of Sisters (1925) 268 U.S. 510 (right of parents to choose private school), Meyer v. Nebraska (1923) 262 U.S. 390 (teaching of German in a private school), and Ex parte Liddell (1892) 93 Cal.633 (reform school habeas petition) for the proposition that the states have the power to reasonably regulate schools and enforce compulsory education of children. The appellate court followed Turner v. Shinn and held that parents instructing their children at home do not come within the private full-time day school exemption in California Educational Code section 48222. [Note: Section 48222 has been used by home schoolers in California to set up private schools in their homes for the purpose of homeschooling. The California Department of Education has made it easy for home schoolers to do so by making the form available online.] The California Appellate Court determined that even though the mother operated through Sunland Christian School where the children were enrolled, the home did not qualify as a private full-time day school. The appellate court thought in that in order to qualify as a private full-time day school the children had to receive their education at the private school campus. The court was not persuaded by a letter from Terry Neven, the school administrator, that the children were enrolled in an independent study program through his school because there was no Education Code section that provided for parents teaching their children by "independent study" through private schools. The court thought enrolling the children in the private school independent study program was a "ruse" to let them stay home and be taught be a non-credentialed parent. The appellate court rejected that schooling under the California exemptions from compulsory education could take place in the home without a teaching credential. It noted that section 48222 provides an exemption from compulsory public school education for "[c]hildren who are being instructed in a private full-time day school." [Note: Emphasis was added by the court-implying the instruction must be "in" the school.] The appellate court also rejected the parents' claim that they home schooled their children due to religious beliefs. It found that there was not sufficient evidence to support the parents' claim that they home schooled due to their "sincerely held religious beliefs." [Note: An argument can thus be made that parents who can prove they have "sincerely held religious beliefs" may home school.] The appellate court remanded the matter back to the juvenile court in order to make factual findings regarding the parents' compliance with California's compulsory public education law. The appellate court told the juvenile court it should not allow the children to be enrolled in Sunland Christian School because it participated in the deprivation of the children's right to a legal education. This opinion is not final. Several home school organizations are determining what action to take. If the parents decide to file a petition for review in the California Supreme Court and the California decides to hear it, then the issue may come before the California Supreme Court. The California Supreme Court may also order that the case be depublished. If this decision becomes final, California parents will not be able to home school through private school independent study programs. In my view, the opinion does not say that parents cannot establish a legitimate private school in their home and educate their children at their home campus. Thus, if my children were not grown, I would continue to home school my children by setting up a private school in my home. I would be vigilant in keeping the necessary records and making sure my children were actively involved in the community. Nonetheless, it may be a matter of time before the In re Rachel L. decision is used to prevent individuals from establishing private schools in their homes. In my view, home schoolers and home schooling organizations need to take action now to request depublication and/or review of the case. If those requests are denied, then California home schoolers may wish to consider another option. Thus, home schoolers may wish to contact their home school organization to determine what action it intends to take and what assistance it may need from its members. AHSA is an informal network of attorneys and others interested in the legal rights of home schoolers. It is not a membership organization and has no funds to retain an attorney. I am an attorney in California and my practice is limited to appeals. Most of the appeals I handle are in dependency matters though I also handle some civil appeals. If I decide to take any action on behalf of AHSA, it will be pro bono and thus depend on whether I can afford to make the time to file a request for depublication or review in the Supreme Court. If I decide to do so, it will be on behalf of AHSA. If there are any other attorneys who wish to work on this matter for AHSA, please contact me at lindaconradlaw AT gmail.com. -Linda Conrad, AHSA Moderator

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