Sunday, March 30, 2008

I'm Not So Sure I Like Where This Is Heading...

Last Thursday, I heard the news that the court which decided the recent California Homeschooling Case, In Re: Rachel L, has decided to void their original ruling and grant a re-hearing. In general this decision to void and re-hear has been widely hailed in the California Homeschooling community as a good thing.

I'm not so sure about this.

First, for those who haven't been following the story closely, a little background is necessary. I wrote about my views of the case, and what it means, here. I then went on to write a post entitled Homeschooling and Constitutional Rights, in which I explored the concept of Natural Rights and how these rights are recognized in the founding documents of our nation, and how this should apply to homeschoolers today (but doesn't always).

A couple of weeks later, the California State Superintendent of Public Instruction weighed in, explaining that the Department of Education had run a legal review of the ruling, and had determined that it didn't affect the legality of homeschooling as currently practiced in California. That is, those parents who had duly filed their affidavits establishing their families as unaccredited private schools were still in full compliance with all pubic education laws. If they were in compliance with the laws before the ruling, and the vast majority were, they remained in compliance with the laws after the ruling.

Through this all I've been much more sanguine about the meaning of the In Re: Rachel L. ruling than many. To this day I read in newspapers and on the sites of other bloggers that the ruling "outlawed the practice of Homeschooling by parents not possessing Teachers' credentials", which is absolutely not the case. This misconception is very widespread, by people on both sides of the issue. Even the home page of the HSLDA currently states (as I write this):
A California Court of Appeal recently decided that homeschooling is illegal in California unless a parent is a certified teacher.
Now, after reading the decision myself, I'll say it's certainly possible that this is what the court intended to say; but that's not what the actual text comes out saying, when taken in context with the applicable laws. And as I mentioned above, the State Superintendent had a legal review done and concluded that the ruling did not outlaw homeschooling by uncredentialed parents.

So anyway, until this last Thursday, I was pretty confident that things would work out for homeschoolers. But then the court voided their previous ruling and re-opened the case.

Unlike the HSLDA, who's rather happy about this decision, I'm not so sure it bodes well. I could be wrong, and I'd be very, very happy if I was in fact wrong. But consider the following.

This is from the SFGate story I linked to above:
It is not unusual for appeals courts to reconsider decisions, and the result is often a minor revision that leaves the original conclusion unchanged. But the three-judge panel in the homeschooling case hinted at a re-evaluation of its entire Feb. 28 ruling by inviting written arguments from state and local education officials and teachers' unions.
Emphasis added.

In other words: the court has decided to re-open the case, and has specifically asked the teachers' unions and officials in the public schools and the Department of Education for their opinions. It's pretty common knowledge what the CTA thinks of homeschooling.

And from the website of the HSLDA, we have:

The Court of Appeal has solicited a number of public school establishment organizations to submit amicus briefs including the California Superintendent of Public Instruction, California Department of Education, the Los Angeles Unified School District, and three California teacher unions. The court also granted permission to Sunland Christian School to file an amicus brief. The order also indicates that it will consider amicus applications from other groups.

Home School Legal Defense Association will seek permission to file such an amicus brief and will coordinate efforts with a number of organizations interesting [sic] in filing briefs to support the right of parents to homeschool their children in California.

Emphasis added again. In other words, the court has asked specifically the teachers' unions and various public school officials to weigh in on homeschooling, and has not specifically asked HSLDA (or, from what I've seen, any other homeschool advocacy group) to provide briefs; so the HSLDA has to seek permission from the court to file its brief.

So in summary, a little timeline:
  • The In Re: Rachel L. case involves a family with a long history of involvement with the state's Child Protective Agency for alleged abuse, who were homeschooling in a way that definitely stretched the law--in a way that most homeschoolers don't.
  • The court issues a broad decision whose language goes far beyond the needs of the immediate litigants--making sweeping statements about the intent of the legislature and appearing, at first glance, to outlaw homeschooling by uncredentialed parents.
  • The State Department of Education performs a legal review and determines that, in fact, the language of the ruling does not affect those who are homeschooling, so long as they continue to do the correct paperwork and get those affidavits in on time.
  • So the court then decides to reopen the case, and actively solicits briefs from organizations and interest groups that are openly hostile to the practice of homeschooling. Organizations that represent homeschoolers do not at this time appear to have been similarly solicited.
I hope I'm just being paranoid here, and I will most happily eat my words if I'm wrong; but with all the above, it's looking to me a little like the court intended to use this ruling to end the practice of uncredentialed parents teaching their own children; and seeing that their ruling wasn't being universally interpreted that way, they're having a go at making a more strongly worded ruling that leaves no doubt as to what they think of homeschoolers.

Am I just being paranoid? I sure hope so. If you're more optimistic than this, please explain why in the comments; I really want to know.

15 comments:

Jarrod J. Williamson, Ph.D. said...

The State Department of Education performs a legal review and determines that, in fact, the language of the ruling does not affect those who are homeschooling, so long as they continue to do the correct paperwork and get those affidavits in on time.

I believe the Department of Ed got the intention of the Appellate Court wrong. In a careful reading of the Rachel L. case, the Court appears clear that it understood the intent of Legislature was not to allow homeschooling via registering the home as a private school.

In dealing with case under review, the Appellate Court cites and applies the Turner case in rejecting the notion of parents registering their home school under the private school option in the CA Ed Code:

Additionally, the Turner court rejected, and noted that courts in other states had also rejected, the notion that parents instructing their children at home come within the private full-time day school exemption in then section 16624 (now section 48222). The court stated that a simple reading of the statutes governing private schools and home instruction by private tutors shows the Legislature intended to distinguish the two, for if a private school includes a parent or private tutor instructing a child at home, there would be no purpose in writing separate legislation for private instruction at home. (Turner, supra, 121 Cal.App.2d Supp. at p. 868; accord Shinn, supra, 195 Cal.App.2d at p. 693.) (Bold supplied.)

Then, after the Appellate Court rejected parents utilizing the private school option the Court then goes on to say the parents didn't even meet this option anyhow. They enrolled this children in Sunland Christian School's independant study program, which is not allowed by the Ed. Code. This is only allowed for public schools.

Moreover, even if being taught at a parent’s home could be construed as attendance at a private day school, the parents in Turner had not demonstrated that their home already qualified as a private school under the requirements of the Education Code. (Turner, at p. 869.) (Bold emphasis supplied.)

Earlier in the Appellate Court's discussion of the Turner case, it became obvious it considered a private full-time day school to be in contrast to a "private school" home school option.

Although the Appellate Court rejects the parents attempt to homeschool via enrolling in Sunland Christian School's independant study program, which the Court strongly negatively referred to as a "ruse."

Such representation does not constitute a statement that the Los Angeles Unified School District and the Los Angeles County Office of Education knowingly gave their stamp of approval to children being deprived of an education in a public or private full-time day school setting, or by a credentialed tutor, through the ruse of enrolling them in a private school and then letting them stay home and be taught by a non-credentialed parent.

Throughout the Court's decision, it kept comparing and contrasting children going to a full-time day school that was either public or private where the child actually attends vs. parents keep the child at home at tutor them themselves.

Where the Court goes after this is hard to say. The Court's discussion was a bit hard to follow, but its intent in its published opinion becomes clear with a careful reading.

(BTW, I will be referencing your post on my blog as well as my response here. I hope you don't mind. It will take a day or two.)

Jarrod J. Williamson, Ph.D. said...

By the way, you commented ...

The court issues a broad decision whose language goes far beyond the needs of the immediate litigants--making sweeping statements about the intent of the legislature and appearing, at first glance, to outlaw homeschooling by uncredentialed parents.

While I am sure you already know this, the Appellate Court in Rachel L. did not itself make sweeping statements about the intent of the CA Legislature, but cited the statements of the court in the Turner case, as well as in other cases referenced in Turner.

The Appellate Court commented that it was not making a new decision in this instance, but was applying the decisions of Pierce, Turner, Shinn, Yoder, etc. (many of which are cases decided by SCOTUS) to the current circumstances at hand.

Hence, strictly speaking, the Appellate Court did not believe that it was making the decision that homeschooling was in violation of the CA Constitution, but that the CA Legislature already did not allow it in the CA Ed. Code, other Court cases clarified that decision.

silvermine said...

I'm with you. I think a lot of people were interpreting the ruling the way they *wanted* it to read without really reading what the judge wrote. It was clear to me from reading it that he believed that homeschoolers were operating in a loophole that he wanted closed.

I also was wary about that line asking for further input from the schools, teachers, unions and so forth. Personally, I lean more towards your interpretation of events.

Jarrod J. Williamson, Ph.D. said...

Personally, I lean more towards your interpretation of events.

Well, I certainly hope Mr. Power is right and I am wrong. Unfortunately, (1) I am a pessimist and (2) I am often right. That is an unfortunate combination.

Believe me, as a public school educator (K12 & Community College), I want Mr. Power to be right.

Timothy Power said...

Jarrod, you write:
Well, I certainly hope Mr. Power is right and I am wrong.

Hm. The whole point of my post was that I'm pessimistic about these latest developments, and I hope that I'm wrong.

After all, this was my penultimate paragraph:

I hope I'm just being paranoid here, and I will most happily eat my words if I'm wrong; but with all the above, it's looking to me a little like the court intended to use this ruling to end the practice of uncredentialed parents teaching their own children; and seeing that their ruling wasn't being universally interpreted that way, they're having a go at making a more strongly worded ruling that leaves no doubt as to what they think of homeschoolers.

Regarding the intent of the legislature: I can certainly accept the argument that this court was merely citing previous decisions about said intent, but that point really doesn't matter all that much. The important thing is: what does the law actually say?

I mean, the law provides for the instituting of unaccredited private schools, which do not require credentialed teachers. And the vast majority of homeschoolers in the state have complied with the requirements to establish these schools, as written in the laws. Now suppose the courts decide that this arrangement isn't what the legislature intended. Then what? We have a situation where something has been declared illegal, where no one can point to the specific law that's being broken.

And this causes a whole raft of other problems. If the text of the law is insufficient to distinguish who can and cannot establish a private school, then on what basis can the Dept. of Education make that determination?

I think this kind of reasoning is why the Dept. of Education decided that the court decision didn't change anything; given that the homeschoolers are by and large demonstrably in compliance with the text of the law, the Dept. could find no legal basis to deny parents the right to establish homeschools, and no basis in law for distinguishing "legitimate" private schools from the homeschools so constituted. In the actual text of the law, that basis for distinction does not exist. I therefore think the Department of Education made the right call.

And this is why I've become worried about the latest move by the court to void the previous ruling. My guess is that the court will, from the bench, try to create just such a legal distinction--something along the lines of, "Here's the definition of 'private school' that you Dept. of Ed. people have to enforce;" something not in current law, and which eliminates most homeschools--in accordance with the court's interpretation of the "intent of the legislature".

This is of course a pretty pessimistic viewpoint, and I seriously hope I'm wrong.

Jarrod J. Williamson, Ph.D. said...

Unfortunately, I tend to agree with the Turner and Rachel L. courts that the home schoolers are not in compliance with what the law actually says. I find the reasoning in Turner (referenced in Rachel L.) to be compelling ...

The court stated that a simple reading of the statutes .... if a private school includes a parent or private tutor instructing a child at home, there would be no purpose in writing separate legislation for private instruction at home.

Mind you, I don't like the law and think it should be changed. But, to date, I think homeschools (a future one myself) have been operating not so much as a loophole in the law, but under a law that has not been enforced.

Jarrod J. Williamson, Ph.D. said...

Hm. The whole point of my post was that I'm pessimistic about these latest developments, and I hope that I'm wrong.

I apologize if I was not clear. I was speaking with reference to your earlier post (which I quoted in my comment) where you stated ...

The State Department of Education performs a legal review and determines that, in fact, the language of the ruling does not affect those who are homeschooling, so long as they continue to do the correct paperwork and get those affidavits in on time.

I hope you are right on the paragraph above, and not in your blog entry "I'm Not Sure I LIke ..."

Sebastian said...

"The court stated that a simple reading of the statutes .... if a private school includes a parent or private tutor instructing a child at home, there would be no purpose in writing separate legislation for private instruction at home."

"Mind you, I don't like the law and think it should be changed. But, to date, I think homeschools (a future one myself) have been operating not so much as a loophole in the law, but under a law that has not been enforced."

Dr. Williamson, I'm curious which aspects of the law you consider not to have been enforced. I'm not a CA resident, but my understanding of the situation in CA prior to this ruling was that there really wasn't a law for home instruction, but it had become traditional for home schoolers to register as private schools (including filing the required affidavits) for the purpose of instructing that family's children. My understanding of the case here is that it was an institutional private school that was then allowing the parents to provide at home instruction under their umbrella.
This seems like two different legal situations.
I have also wondered how the ruling would impact charter schools that allow home instruction. Or is this somehow different because the charter schools are still public schools?

Jarrod J. Williamson, Ph.D. said...

Dr. Williamson, I'm curious which aspects of the law you consider not to have been enforced.

First, I am no legal expert. My education and training is in chemical engineering.

My understanding is that home schools are in violation of CA Ed. Code, section 48222. It appears home schools operated under a loophole in the law and appear to clearly be not what the CA Legislature intended. It appears to be a gimmick that home schools fit through.

I believe that the State has a compelling interest in compulsory education, one that promotes a broad education, critical thinking, patriotism, etc. I also agree that the State has a right to regulate all schools, but I disagree with the extent of micromanagement. Parents should be allowed to homeschool in basically the manner they have been so far, IMO.

However, the law does not appear to allow this, and should be altered to allow it.

Crimson Wife said...

There is nothing contained within the CA Ed Code that states a "private full-time day school" cannot be located within the parents' home. The 3 judges of the Second Appellate Court went back to a 50 year old case (Turner) to make their argument rather than a couple of more recently decided cases (Darrah and Black) that upheld the right of homeschools to operate as private schools in CA.

I think the re-hearing of the Long case represents both good news and also a risk for homeschoolers. The good news is that the earlier ruling is no longer legal precedent and cannot be used as basis for persecution of homeschoolers. The risk is that the forthcoming ruling may be even worse *AND* harder to overturn without opening up the Pandora's Box of legislation.

Christina said...

One of the places where the Long court made an error of law in their originally ruling was in stating that the tutorial exemption in 48220ff. stands as the legislature's coverage of children learning at home, and therefore represents a separate avenue to the private school exemption for children who learn "at home" and not "in a school". There is no such language in the code! The tutorial exemption makes no reference to where the child is learning, and of course is heavily used in southern California on the sets of films and movies...

I do not consider homeschoolers use of the private school law to be a "gimmick". California is pretty vehemently hands-off in its regulation of private school education. (I'm sure it's a lot more hands-on in the Health and Safety Code, but the homeschool organizations have reviewed that code for important details and the only one we ever cock our head to is the tuberculosis testing - do we need to do that or not?) Given that there is such minimal regulation of private schools, I don't consider myself slipping through a loophole, either, but just taking advantage of that liberal attitude toward private education as an alternative to public education. No credential, no methodological or content mandates - just good ol' learning.

I too am skeptical about the court's vacating the original ruling. I do not consider it a good thing at all, and in fact have stepped up my activism even more as a result of the change. I was on a TV slot last Thursday about the change and stated my attitude as "watchful". The court's original ruling was incredibly poor as a matter of law (for example, they didn't seem to realize that private school teachers do not need credentials, and the ruling that private schools like Sunland cannot offer independent study - when the much more regulated public schools can - didn't have any support, either). I think it would have been pretty easy to get the ruling depublished or overturned by the state Supreme Court. Now the appellate court has the opportunity to put together something much better supported, and they're going to have the briefs of all the public ed. groups to help them.

Timothy Power said...

So this is the second time this has happened. I neglect my blog for a day, and when I get back, there's a big, sophisticated, technical debate going on in my comment thread.

Well. Once more, into the breach.

Jarrod suspects that homeschoolers who go the Private School Affidavit route are actually in violation of CA Ed. Code, section 48222.

A link to the portions of law dealing with private schools, including 48222, is here.

I will post the full text of this section here, with some thoughts in the following comment.

Attendance in Private School

48222
. Children who are being instructed in a private full-time day school by persons capable of teaching shall be exempted. Such school shall, except under the circumstances described in Section 30, be taught in the English language and shall offer instruction in the several branches of study required to be taught in the public schools of the state. The attendance of the pupils shall be kept by private school authorities 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. Exemptions under this section shall be valid only after verification by the attendance supervisor of the district, or other person designated by the board of education, that the private school has complied with the provisions of section 33190 requiring the annual filing by the owner or other head of a private school of an affidavit or statement of prescribed information with the Superintendent of Public Instruction. The verification required by this section shall not be construed as an evaluation, recognition, approval, or endorsement of any private school or course.

Timothy Power said...

The issue, as I see it, is: can a "private full-time day school" be constituted in one's own home? What is the legal definition of this phrase? If parents aren't permitted to establish such a school, which law is the one preventing it?

I suspect that Crimson Wife got it right when she said, "There is nothing contained within the CA Ed Code that states a 'private full-time day school' cannot be located within the parents' home."

After all, from my reading of the above law, it would appear that to be legal, a private day school must:
--be staffed by people capable of teaching.
--be taught in English
--offer instruction in all subject areas required by the state's public schools.
--maintain attendance records.
--keep the affidavit in order.

None of this, so far as I can tell, cannot be done by parents in their own home. I still don't see why a homeschool so constituted isn't a "private full-time day school" under the law.

[snark on]
Of course, since we all know that the law means nothing more nor less than what the courts say it means, all this arguing is moot anyway...
[snark off]

Jarrod J. Williamson, Ph.D. said...

Christina:

You said, in response to me:

I do not consider homeschoolers use of the private school law to be a "gimmick".

Please do not understand anything I said to be intended as insulting. Someone might take it that way, but that is not how it is intended.

Tim:

You said:

Of course, since we all know that the law means nothing more nor less than what the courts say it means, all this arguing is moot anyway...

In essence, yes. Actually, the role of the courts is to interpret what the Legislature intended in the law. Yes, there is sometimes judicial activism going on in these instances, but I do not think that is what is going on in this instance. (BTW, "judicial legistation" has been going on since the founding of this country.)

I have seen some plausible alternative interpretations to the Ed Code under discussion. However, the Turner and Rachel L. courts' interpretations are quite plausible (I actually think they are not just plausible, but are the best interpretation), and under our system of government that is the purpose of the Judiciary.

What is what not, IMO, was an "all out assault" as Dr. James Dobson publically stated. Such hyperbole in a Christian leader is unfortunate. The truth of the situation is much more mundane.

Hopefully some court will reverse that decision. Soon.

Jarrod J. Williamson, Ph.D. said...

Thought you would want to know.

In response to the In re Rachel L. decision, Congressman Howard McKeon introduced H. Res. 1076 into the House supporting the rights of parents to home school their children.

The resolution has 32 co-sponsors and calls on the California Court of Appeals to allow parents to homeschool.