That Court Case

Ok. I'm not seething quite so much as I was yesterday, so hopefully I can indeed be a little more coherent as I take a look at this Case.

About a week ago there was a court case decided by an Appellate Court of California that sent some shockwaves through the homeschooling community. The LA Times reported on it recently:

Parents who lack teaching credentials cannot educate their children at home, according to a state appellate court ruling that is sending waves of fear through California's home schooling families.

Advocates for the families vowed to appeal the decision to the state Supreme Court. Enforcement until then appears unlikely, but if the ruling stands, home-schooling supporters say California will have the most regressive law in the nation.

This case wasn't on anyone's radar a week ago. The parents involved in this case hadn't contacted any of the homeschooling legal associations out there, and so none of them knew about it. Suddenly, out of nowhere, this ruling comes stating:

[The lower court's] reason for declining to order public or private schooling for the children was its belief that parents have a constitutional right to school their children in their own home. However, California courts have held that under provisions in the Education Code, parents do not have a constitutional right to home school their children. Thus, while the petition for extraordinary writ asserts that the trial court’s refusal to order attendance in a public or private school was an abuse of discretion, we find the refusal was actually an error of law. It is clear to us that 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, § 48220 et seq.) applies to the child. Because the parents in this case have not demonstrated that any of these exemptions apply to their children, we will grant the petition for extraordinary writ.

When news of this got out and people started reading the decision, the first reaction of most in the homeschooling community was to read that and think: Omigosh, we've just had our rights taken away.

A few observers have looked at this ruling and come to slightly different conclusions. Ace of Spades says

The short version: The LA Times got it wrong in the first sentence of their article. Parents without teaching credentials can still educate their children at home under the various exemptions to mandatory public school enrollment provided in § 48220 et seq. of the Cal. Ed. Code. The parents in this case lost because they claimed that the students were enrolled in a charter school and that with minimal supervision from the school, the children were free to skip classes so the mother could teach them at home. There is no basis in law for that argument. If only the parents had attempted to homeschool their kids in one of the statutorily prescribed methods, they would have prevailed.

What to think?

Well, here's the narrative, as I understand it. I'm writing this out partly to organize my thoughts (and perhaps inform those who know less than I do), and partly to see if anyone in my readership has a better idea than me, who'd be willing to comment and correct any misunderstandings I have.

The case, In Re: Rachel L, concerns a family with eight children, who've been homeschooling since 1987. This family has had many run-ins with child protective services; by all accounts the parents are very strict disciplinarians and are staunchly religious, and some of the older children have claimed abuse.

The family has been homeschooling under an odd arrangement: they are officially enrolled in a Sunland Christian School, which is actually a charter school--and thus a public school, although an odd one. The family had worked out an arrangement with the school that the parents would instruct the kids at home as they saw fit, and the school would send out someone periodically to check on them.

As I understand it California law mandates compulsory public education for all children ages 6 through 18, with a few well-defined exceptions:

• Children can attend private schools. Such private schools have to meet certain minimum legal requirements--primarily, they have to file annual affidavits establishing that they exist, listing how many students they will be instructing, providing background checks on the faculty, and so forth. These private schools are not required to have credentialed teachers; they merely need teachers who are "persons capable of teaching".
  
• Children can be taught by credentialed tutors. The tutors must possess a valid "Multiple Subject Teaching Credential".
• A student can be enrolled in a public school that supports independent study. A teacher at the school that assigns the curriculum and administers tests, but the actual instruction in the curriculum occurs at home by the parents.
  

State law does not mention homeschooling, either to establish and regulate it, or to forbid it. For more details, here's a FAQ site from the California Department of Education--look at items 12 through 14.

The way that homeschooling is usually done in this state is through the first of these methods. A family intending to homeschool files an affidavit in the fall establishing an "unaccredited private school" with the parents listed as teachers (and administrators) and the family's children listed as the only students.

There aren't a whole lot that homeschool using the second of these exceptions as their basis. It's a whole lot easier to file the affidavit than it is to get a Multiple Subject Teaching Credential.

There are a fair number of people that go the third route (although there's an argument within the homeschooling community as to whether this should even be referred to as "homeschooling", since the parent isn't actually in control of the educational process; but that's an argument for a different time, place, and blog). I've known some students who've gone this route, and had good success with it.

Based on my very limited knowledge, it appears to me that the family at the center of the case was trying to use this third method--and was bending the rules to the breaking point. The Sunland Christian School is a public charter school, but was not actually in charge of the curriculum the family was using. Furthermore, the school had not listed in its charter that it would be allowing the independent study. So by the school's own rules, the children were truant.

And of course the family didn't qualify for the other two exceptions. I've seen no evidence that they attempted to establish themselves as a private school, by filing the proper affidavits; and the parents certainly didn't have the Multiple Subject Teaching Credential. So it appears that they may well in fact have been on the wrong side of the law.

And if that is the case, then it means that those homeschoolers who've done the paperwork, who've established themselves as unaccredited private schools, aren't going to be directly affected by this ruling.

This appears to be the view taken by Ace of Spades. And there are other bloggers out there who are cautioning level-headedness, too, like this one here. I'm leaning in that direction myself.

However...

There are still some things about this whole case that I find disturbing.

California has developed a reputation for being one of the most welcoming states for homeschooling. For the most part, all the parents need to do is file the affidavit, and they're in the pink. But: this arrangement is viewed by many as not much more than the exploitation of a loophole; and if that "loophole" were closed, California would go from being one of the
most welcoming states to one of the most repressive states overnight. Take a look, for instance, at what item 14 from the CDE FAQ page I linked to above says about it:

May a parent who is home schooling his or her own child file a Private School Affidavit?

Yes. A parent offering or providing private school instruction and who meets the requirements of EC Section 33190 may file an Affidavit in the manner described. However, filing such an Affidavit with the CDE does not constitute any opinion by the CDE as to whether a student enrolled in that school is exempt from public school attendance.

Translation: just because you've filed your affidavit, does not mean that the CDE has to let you homeschool your kids. As long as you fly under the radar, you're probably OK; but the moment that someone in power takes a disliking to you, the law gives you no guarantees. State law gives us no guarantee of our rights in this matter.

And Dana at Principled Discovery finds the following paragraph from the ruling ominous:

Additionally, the Turner court rejected, and noted that courts in other states also rejected, the notion that parents instructing their children at homes come within 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 a private tutor instructing a child at home, there would be no purpose in writing separate legislation for private instruction at home.

Translation: the private school exemption in California law was never intended to apply to homeschools. That's why the Certified Tutor exemption is there....

(Quick comment on this: regardless of what the court thinks the Legislature intended, homeschoolers who file their affidavits to establish unaccredited private schools are still in full compliance with the text of the law. Courts should not be in the business of ruling against people who demonstrably are in compliance with what the law actually says.)

It's no secret that there are many people in this world who believe that homeschooling is, on balance, a bad thing, and would like to see it ended. Or they're willing to permit it, only so long as the parents get themselves teaching credentials first. (See Dana again for details on some of these assertions.) And where there are some homeschoolers who have been looking to the legislative process for relief--or to the ballot initiave process--I happen to think they're naive. The fact is, homeschooling is still widely seen as the province of antisocial weirdos. Any attempt to use the political process to establish the right to homeschool, at this point, would likely see us linked in the popular press with the Banita Jackses of the world.

...

Just for kicks, let's say for the moment that this court case heralds the end of homeschooling in California. What does that say about our society, about our system of government, that three unelected judges can--without any new laws being written, without debate in the elected legislatures--simply terminate the rights of hundreds of thousands of people in this way? I mean, if the whole society had a debate about how we were going to raise and educate our children, and this debate moved into the legislature (the elected representatives of the people) and eventually produced a restrictive law, that's one thing; but for this to happen out of the blue like this, with no public debate, in closed proceedings, by a panel of three non-elected officials? Perhaps I'm naive, but this seems to me a serious miscarriage of justice--not to mention a violation of the concept of Separation of Powers. Legislatures have the authority to pass laws only because they are accountable to us; in a democracy, the people get to decide what rules they are going to live under. Judges are there to figure how the laws apply in various situations, and to prescribe remedies when the laws have been broken; but they are not authorized to make new laws, because they are not elected by the people. The term "judicial law" is a bit of an oxymoron--or rather, it should be.

...

But in the long term, I think CA homeschoolers will be OK, if for no other reason than the fact that courts at the federal level appear to be sympathetic to homeschooling. The fact is, the status quo is on our side. The Supreme Court of the US has some long-standing rulings--such as the 1925 Pierce v. Society of Sisters--that while states can mandate compulsory schooling, they cannot mandate that the kids attend the public schools. While these rulings do not directly mention homeschooling, they created a legal climate in which homeschooling is implicitly supported, and states that attempted to ban the practice would likely find themselves struck down at the federal level. According to Wikipedia, Texas once tried to outlaw homeschooling, but lost the case in the federal courts.

Furthermore, the recent Morse v. Frederick "Bong Hits 4 Jesus" majority decision mentions homeschooling specifically: "If parents do not like the rules imposed by those schools... they can send their children to private schools or home school them..."

Also it's important to note that every homeschooling advocacy group and legal defense group in the country is on the case now, including HSLDA. Not to mention the fact that there are (according to the LA Times article) a minimum of 166000 homeschooled students in the state--and possibly many more, since it's really hard to count them; and then there are a good number of non-homeschoolers who are sympathetic. A more-or-less coordinated letter-writing/publicity/legal campaign could make a huge difference.

...

Whew. That's enough for one night. I will undoubtedly have further thoughts on this in the future. (I have further thoughts on this now; I just couldn't fit them all in...)