Tuesday, August 05, 2008

Continuing information about Homeschooling in California

Right now, CA law on homeschooling is exactly the same as it was in January of this year before any of us had ever heard of the Long family and this case. When the appellate court issued its opinion in February, it did say that the only legal exemption from public school attendance for some (that's SOME) families was the tutoring exemption under Section 48224 of the Ed Code. But lots of us either form our own private schools or enroll in private schools formed by others in reliance on the exemption under Section 48222 of the Ed Code. The court really didn't like the school (Sunland Christian) that the children in this family were enrolled in, and they said a lot about brick and mortar schools and made a big deal of children being IN a school (since Sunland was virtual and didn't have a building, no children were IN its school). But the reason I said SOME above was that we think that even under that original opinion, families who formed their own private schools and taught their children IN them were probably OK. It was the families enrolled in other people's private schools who were most directly affected by the decision.

But then the court agreed at the end of March to rehear the case. What that means is that they were basically going to have a "do-over" of the whole thing. By court rules, their February opinion was vacated, meaning that it was as if it had never existed. Lots and lots of groups filed friend-of-the-court briefs (amicus briefs) in May, including a joint brief filed by the three large CA-based groups (HSC, CHN and CHEA), and the court had the new hearing on June 23. They have not yet issued a new opinion, but will probably do so before the end of September. So, in light of the vacation of the original opinion, the prior understanding of the law hasn't changed.

So what if the court issues an opinion tomorrow and it seems to somehow say that parents need to be credentialed to teach their own, as their February opinion did, or has some other restriction on homeschooling? Well, we have been told by people who have reason to know that for certain that decision will be appealed by the family in this case. And the CA groups would petition the appellate court and, if they don't act, the CA Supreme Court to "stay" enforcement of the decision pending the appeal. What that means is we would tell them not to start enforcing the new interpretation of the law until the entire appeal process had run its course. Given the huge burden on parents to try to get credentialed, we think there's a good chance one of those two courts would agree. If they grant a stay, then the law goes back to being interpreted the way it is being interpreted now until the whole appeals process is done, which could take months or even years.

What if both courts refuse to grant a stay? The effect would depend on whether the Supreme Court either agrees to hear the appeal OR agrees to "depublish" the opinion (we were all set to ask them to depublish the February opinion, which means that the opinion would still be binding on the family involved in the case but would not be binding on anyone else in the state who wasn't a party to that case. In addition, in any future litigation, no one would be entitled to quote (or "cite") that case as authority.

If the Supreme Court agrees to hear the appeal but won't stay the decision, then believe me, the three big CA groups and HSLDA (we work together closely on all matters involving these issues to make sure we give consistent advice) would be thinking about what to tell people. But that's probably some months from now, so see a little further below for the advice we'll probably be giving people for this school year.

If the Supreme Court neither stays enforcement nor takes review of the case (and historically, the state Supreme Court, just like the U.S. Supreme Court, only agrees to review a tiny percentage of cases), then the groups will work like mad to figure out if we can live with the situation OR if we need to seek a legislative solution. We have all been doing a lot of work with the legislature since February trying to convince them that we don't need legislation until all other avenues have failed AND the situation is intolerable, so hopefully they'll continue to hold off until we tell them that we have no other choice. For example, if the court were basically to reissue its February decision, we might think that families who were in private schools would be OK if they were in their own private school, just not someone else's, and also try to get the law clarified that homeschooling through a parent's own school or through a school formed by others where capable parents did the teaching was fine. But this wouldn't happen for a while, since the current legislative session adjourns at the end of August, and they're not supposed to act on any bills other than ones that were introduced by early summer. There were no bills involving homeschooling pending, so probably none would be introduced until early next year when the new session starts after the elections.

There has been one other interesting development in the case, but it really doesn't affect us as much as we wish it would. The children in this family were "under the jurisdiction" of the juvenile court. That meant that the court had found that the parents weren't doing a good job, and that the court had the power to make some types of decisions that usually only parents can make (such as where to educate a child). In these cases, the juvenile court is supposed to look at the facts every six months to make sure that the children still needed to be under its jurisdiction. Obviously, with help, some parents get better and no longer need the court looking over their shoulders. Here, it had been two years since the juvenile court had reviewed this jurisdiction issue. Finally, after the rehearing took place, it did, and it found that things had changed enough that the children didn't need to be under its jurisdiction. We thought that was great, and that maybe the appellate court would drop the whole issue since it couldn't make any orders that would affect these children, but it turns out the attorneys who were appointed to represent the children are appealing the termination of jurisdiction. So while we think the appellate court really shouldn't issue any opinion about homeschooling in this case, it still might. There are two other appeals pending in the same matter, so it's obviously been a very complicated set of proceedings.

As you can see, there are a number of different ways this can all play out, and it's premature to make too many plans until we know what happens. But I believe that all of the major CA groups and HSLDA will, for the start of this school year, be telling people to do what they have always done (in other words, if they have filed their own affidavit before, do that, if they used someone else's private school, do that, if they were in a public school ISP or charter, do that, but don't change what you're doing out of any fear of what the legal issues are). We DON'T think that families need to not homeschool, or enroll in a charter if they otherwise wouldn't have, because of this case.

The best advice you can give new homeschoolers is to join one of the major California-based groups. People from each of these groups are working hard on this matter and staying in close touch with people who know what's happening in the case, and these groups will be giving out new information as necessary. There is no better way to stay informed than to join a group and either check its home page frequently or join its e-list (all the groups have them) for announcements. Of course, we'd prefer if everyone would join the HomeSchool Association of California. We do not think it is necessary for people to join HSLDA unless that's consistent with their personal values and philosophy (HSLDA is a conservative Christian organization, and while they accept memberships from all homeschoolers, their goals and desires may not be the same as any given family's). We think it a little unlikely that truancy officers will start fanning out across the state to hassle homeschoolers until it's absolutely clear that the court and the legislature refuse to help us.

The Attorney General, the Governor and the Superintendent of Public Instruction all believe that homeschooling privately, not through a public ISP or charter, is legal. They did not agree with the appellate court's interpretation. Homeschoolers are not without friends in high places, and families who wish to teach their own children should do so with confidence. They should take steps to stay informed, but they shouldn't be fearful.

I hope that explains the situation for you. Please let me know if there's anything you don't understand.

Debbie Schwarzer
HSC Legal Team co-chair


Post a Comment

<< Home