In February 2008, an appellate court in Los Angeles issued a decision
that interpreted California's education laws in a way that was very
unfavorable to homeschoolers.

Unlike many states, California does not have any laws specifically
authorizing or regulating homeschooling.  Like several other states
whose laws do not mention homeschooling, California does have laws
that say that children can meet the state's compulsory attendance laws
by going to private schools.  Homeschoolers in California, like
homeschoolers in those other states, complied with the compulsory
attendance laws by enrolling their children in private schools that
permitted teaching at home, and these schools could be ones operated
by third parties or ones established by the parents themselves for
their own children.

This manner of homeschooling was not, as many in the press have
portrayed it, a "loophole".  California law does not have many
regulations pertaining to private schools, and the ones that it does
have can be met by parents forming their own schools and by schools
that support homeschooling.  The state's Superintendent of Public
Instruction, Jack O'Connell, was aware of this interpretation of law,
and agreed that it was permissible.

The appellate court, however, stated in its February opinion that it
did not believe that private schools could permit homeschooling.  The
judges seemed to think that the state legislature had clearly thought
about homeschooling when it passed the private school laws and had
decided that the only way to teach children at home was under a
separate statute about tutoring, which requires a state teaching
credential.  The court, of course, could not change a law or pass a
new law; only the legislature could do that.  But it was interpreting
the law in an unfavorable way.

The Governor, the Superintendent of Public Instruction and all of the
statewide homeschool support groups have gone on record as stating
that the court's interpretation was incorrect.  The statewide groups
were preparing to appeal to the state Supreme Court for help in
rectifying the situation, but in late March, the appellate court
decided to rehear the case itself.

By court rules, whenever a court agrees to rehear a case, the opinion
that it wrote the first time around is vacated, and of no further
force or effect.  What that means is that the original decision with
its unfavorable interpretation of law has gone away, and no judge or
government official will be able to take action using that opinion as
authority.  State law about homeschooling is now exactly the same as
it was prior to the issuance of the February opinion.  The Governor,
the Superintendent of Public Instruction and the various statewide
homeschool groups believe that the interpretation prior to that
decision was legally correct, and homeschoolers can continue to teach
their children at home in reliance on the law as previously understood.

The appellate court will hold a new hearing on the matter this summer.
 All of the statewide groups are, with the assistance of pro bono
counsel, filing amicus briefs in support of the prior interpretation
of law.  A new decision is expected this fall.

We believe that the legislature is waiting to see what happens in the
court system before taking any action.  It is quite probable that if
the court's new decision does not change the interpretation of law
that was in place prior to its original decision, the legislature will
not take any action, as the Governor and the Superintendent of Public
Instruction are both accepting and even supportive of that interpretation.

Debbie Schwarzer
Co-chair Legal Team
Legislative Chair
HomeSchool Association of California