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Legal addendum on California Home schooling case

As those who have been following the case already know, the California court that declared home schooling (and all school-connected satellite study programs) illegal under California law has agreed to rehear the case, voiding its earlier ruling. It's going to get plenty of help this time in the form of amicus briefs.

In my most recent copy of HSLDA's magazine for members, I came upon an important legal point on this subject that I had forgotten about.

In my earlier post, I had said that the crucial definition of 'private school' in state law and the question of whether it could include parents teaching at home should be referred explicitly to the legislature, since it has appeared to everyone involved, including most public education officials in California, for a long time that private schooling can occur in this way.

HSLDA's article on the subject reminds me that, in effect, the California legislature already addressed this issue in 1998, in an amendment to the California Education Code that the court was exceedingly remiss not to have considered. (I'm sure it will now be brought to their attention at the rehearing so that they cannot ignore it.) The education law requires a criminal background check and the submission of fingerprints for teachers in private schools. But the amendment to this requirement exempts "a parent or legal guardian working exclusively with his or her children." See here (search for text on page). This language was expressly included after lobbying by home schooling advocates in order to protect parents using the private school exemption. Obviously, there would be no point in having such an exception if there were no parents teaching only their own children. Moreover, and for what it's worth, this section of the law expressly applies to those working for private schools who do not have teaching credentials. The idea appears to be that some (all?) accrediting bodies already do a criminal background check, and that if you have a teaching credential from such a body you don't need another background check. This point makes it particularly evident that the legislature was contemplating and permitting parents to teach their own children without having teaching credentials.

To my mind this ought to be decisive. I believe that the court in issuing its earlier ruling thought of itself as merely interpreting the law when it argued that a student is not being educated in a private school unless he is spending most of his time in a bricks and mortar school being taught by people other than his parents. But the law does not say this, the officials in charge of enforcing the law (with one exception a few years ago) have not understood it to say this for something on the order of twenty years, and the law as amended in 1998 expressly recognizes the category, under the private school exemption, of parents without special credentials who teach their own children.

At the rehearing, this point alone should make the question of the legality of home schooling in California under the private school option an open and shut case.

Comments (2)

Excellent. You should foward this on to whomever is handling the case.

Thanks, Scott. I got most of it from HSLDA, which is helping to formulate the case this time around. (They weren't on board the first time, unfortunately.) The only thing I've added of my own is the observation that the portion of the code in question exempting parents from a background check is expressly about people who are otherwise uncredentialed, which seems to me relevant in the way I've explained. I did think of writing to HSLDA to point this out but felt a tad silly, as they are the most lawyerly of lawyers and doubtless don't need my help on that one small additional point, esp. since they have the blockbuster point already--the reference to parents teaching their own children right in the California Education code.

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