Last Chance for California Homeschooling?

by Christopher Tyrrell - April 1, 2008

Reprinted with permission.

Recent reporting has attempted to quell the fear that homeschooling has been banned in California, but the February 28 decision handed down by the California Court of Appeals has indeed done just that.

The Court of Appeals ordered the original court to prohibit a California family from continuing to enroll their children in a homeschooling program. Absent a "legal ground for not doing so," the court also required that the children attend a public or private school full-time.

This decision effectively eliminated every legal option available for California parents who are not certified teachers to have sole discretion over their children's education by teaching them at home.

The only good news is that, on March 25, the California Court of Appeals granted a motion for rehearing the case. The court now has the opportunity to issue a different opinion – a second chance to get it right. However, the danger posed to homeschooling families is still very real.

According to the Home School Legal Defense Association (HSLDA), before the court's initial decision there were four legal options under California law available to parents who wished to educate their children at home.

First, the home school could qualify as a private school, and parents would file a sworn statement each year regarding the education they are providing. Second, parents could enroll their children in an independent study program through a private school or a private school satellite program. Third, parents could retain a private tutor who is a certified teacher, or become certified teachers themselves. Fourth, parents could enroll their children in an independent study program through a public school.

The court's opinion focused primarily on the second option – parents choosing to enroll their children in an independent study through a private school – but the decision affects all legal alternatives except for hiring a credentialed tutor or the parent himself becoming a credentialed teacher.

The court not only rejected parents' use of an accredited homeschooling program but specifically disqualified the use of the home as a school and the parents as capable teachers. It did so by prohibiting any parent from using a program under the private school option when the children do not receive education at a private school. The court referred to the process of enrolling a child in a private school and then having them taught at home by a non-credentialed parent as a "ruse."

The court then quoted the language of the private school exemption, which exempts children from public school education if they are "being instructed in a private full-time day school." Citing two of its own opinions from the 1950s, the court rejected the possibility for the home itself to be a private, full-time day school.

The way the court abolished the use of private school enrollment for homeschooling programs has raised the ire of homeschooling families, as it directly attacks the core elements of homeschooling: the parent as the sole educator, the home serving as the school, and the parent having the sole authority to determine educational structure and content.

The court also eliminated the public school independent study option, stating that it "does not apply to mother's home schooling of the children," because the purpose of such programs is "to provide students with certain educational opportunities, such as education during travel, or individualized study in an area of interest of subject not currently available in the regular school curriculum." The court provided neither legal basis nor legislative history for this declaration of the purpose of this statute or its legal conclusion.

Thus, unless the court departs from its original reasoning, California parents will have no legal alternative for teaching their children at home without becoming a credentialed teacher through the state's teacher induction program and certification. That process includes requirements involving years of study.

Ironically, requiring homeschooling parents to obtain the same credentials as California public school teachers goes beyond even what the state requires of its private school teachers: They don't have the same credentialing requirements, but must only be "capable of teaching" the educational matter.

California homeschooling parents are rightly outraged. The rest of the nation's homeschooling parents should also be concerned that the court's reasoning could be used in other states to make the same misguided judgment.

But if the court does not rectify this error, the legislature and Gov. Arnold Schwarzenegger will. They have already expressed their willingness to step into the breach.

Christopher Tyrrell is an attorney in New York.