California Court Bans Homeschooling

On February 28, 2008, the Court of Appeal for the Second Appellate District in Los Angeles 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 family was not a member of HSLDA. 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.

Homeschooling has been practiced in California by parents complying with the state laws and establishing legal private schools based in the home. In February 1986, the Santa Maria Municipal Court ruled, in two homeschool cases handled by HSLDA, that the compulsory attendance statute is void because of its unconstitutional vagueness and upheld the right of homeschools to operate as private schools. People v. Darrah, No. 853104 (Santa Maria Mun. Ct. Mar. 10, 1986); People v. Black, No. 853105 (Santa Maria Mun. Ct. Mar. 10, 1986).

Furthermore, in Institute of Creation Research v. Honig, Civil No. 90-0483-B-(M), January 29, 1992, the U.S. District Court of the Southern District of California ordered … “a private K-12 school is not within the jurisdiction of the State Department of Education for the purpose of approval of courses or course content or issuance of regulations, except as provided by law” (p. 3). This ruling would apply to all homeschools that file a private school affidavit.

These rulings were watersheds for homeschoolers in California because they allowed homeschoolers to function outside of compulsory education requirements and daytime curfews. They also established that private schools (homeschool families in California are registered with the state as private schools) are outside of the scope of the State Department Education and thus not under the requirements for teacher certification.

Last week’s ruling from the Court of Appeal relied on three old decisions, one from 1929, one from 1954, and one from 1961: Turner v. People of the State of California (1954) 347 U.S. 972, Shinn (1961) 195 Cal.App.2d 683, 686-687, and State v. Hoyt (1929) 84 N.H. 38. This Court ignored years of precedent and overturned the lower court’s view that the parents had “a constitutional right to school their children in their own home.” The Court of Appeal ruled that “parents do not have a constitutional right to home school their children.” (Emphasis added).

If the opinion is followed, then California will have the most regressive law in the nation. Over 200,000 homeschool students in California are at risk of being ordered into public school. Homeschooling will be effectively banned because the only legal way to homeschool will be for the parent to hold a teaching certificate. Parents should not have to attend four years of college in order to be allowed to teach their own children.

California is now on the path to being the only state to deny the vast majority of homeschooling parents their fundamental right to teach their own children at home.

HSLDA is reviewing 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.

William A. Estrada is the Director of Federal Relations of the Home School Legal Defense Association.