Legal Essay by Stephen Greenberg

The Legality of Private-School Homeschooling in California

by Stephen Greenberg, J.D. (May 2000) 


Contents
Preface
    • Part 1: Introduction: Sources Of Law

    • Part 2: The Education Code and Private Homeschooling

    • A. Legislative Intent
    • B. Plain Meaning
    • C. Statutes in Pari Materia
    • D. Penal Laws Interpreted in Defendant's Favor
    • E. Construction Favoring Validity

    • Part 3: Constitutional Issues

    • A. Introduction
    • B. Parental Rights
    • C. Freedom of Religion
    • D. Freedom of Expression
    • E. Right to Privacy
    • F. Due Process - Notice
    • G. Due Process - Arbitrariness
    • H. Equal Protection
    • I. Strict Scrutiny of Anti-Homeschooling Laws or Actions

    • Part 4: The "Other Side"
      • A. Introduction
      • B. The Turner and Shinn Cases
      • - Note on Other Cases
      • C. Private Schools as Businesses
      • D. Historical Analysis

Conclusion


Preface


The primary point of this essay is to explain - as thoroughly as possible - why homeschooling under California's private school exemption is perfectly legal. If you're already convinced, you may not need to read on. But as long as there are people who insist otherwise, or have doubts, this analysis should be useful. If for any reason an authoritative legal argument becomes necessary, it can be developed from the points presented in this essay.


Citations are provided for all legal points, and most cited material may be found in any county law library.


The essay is also designed to educate people who aren't trained in law. So it includes as much basic legal information as possible, to serve as a foundation to analyses which are at times complex.


If you have read the earlier version of the essay (see fn. 1 above), much of this revision will be familiar. But along with minor editing throughout, there are a number of important additions, including the following:


  • 127 footnotes, with full legal citations of sources and additional quotations
  • More detailed discussion of many points, including an expanded critique of the Turner decision
  • Discussion of additional statutes (Part 2)
  • Discussion of recent California case law, i.e., since the Turner and Shinn cases (Part 4-B)
  • Historical analysis of exemptions to compulsory education law, with detailed critique of the California Department of Education's historical analysis (Part 4-D)

Part 1: INTRODUCTION: SOURCES OF LAW

To the extent that government gets to decide anything about education, it must have the power to do so. In this country, the federal government has only the powers expressly listed in the United States Constitution (and whatever is "necessary and proper" to carry out those powers).2 The power to regulate education isn't one of them. On the other hand, Congress sometimes regulates indirectly, in the context of a listed power - for example, the power to tax and spend in providing for the "general welfare of the United States"3 - and this may affect education.4 So we move along to the states. Under the Tenth Amendment to the United States Constitution,5 whatever the federal government can't do, the states can. This sort of "catch-all" state governmental power is referred to generically as the "police power." It lets each state do plenty of regulating of life within its borders, with one major restriction: Under the Supremacy Clause of the Constitution,6 if a state law conflicts with a federal one, the federal law wins. You might think that would be irrelevant, since Congress doesn't have an "education" power per se. But there are other proper federal areas that certainly touch on education and can limit state power.


For example, in Brown v. Board of Education, the landmark 1954 school desegregation case,7 the United States Supreme Court relied on the Equal Protection clause of the Fourteenth Amendment of the federal Constitution to intervene in state (and local) regulation of schools.


Another example a little closer to "home" occurred in 1925 when the Supreme Court recognized parents' rights to send their kids to private schools, regardless of state law.8 Where did the court get authority for such a decision? No less than the Bill of Rights itself. Those first ten amendments to the Constitution don't say anything directly about family rights, but the high court found them inherently there - part of the "fundamental theory of liberty upon which all governments in this Union [i.e., including state and local ones] repose…."9(Keep that in mind, because if push comes to shove, an argument can at least be raised that there is a constitutional right to homeschool. Ideally, however, such an argument should not even be necessary.) Within our constitutional framework, the legislative branch of government has the primary responsibility for making law, and to that end, the California Legislature has written an Education Code. Among other parts of the code, there is a "Compulsory Education Law."10 The Legislature's general approach is to require attendance at public school, with several exceptions to ("exemptions" from) that requirement. For purposes of this discussion, there are two significant exemptions: (1) children being taught by a credentialed tutor;11 (2) children "who are being instructed in a private full-time day school by persons capable of teaching[,]" as long as an affidavit (typically on a form known administratively as the "R-4") is filed each fall.12 To the extent that homeschooling is legal in this state, many of us view it as a homespun, home-administered private school, per section 48222. Is it? The Education Code doesn't directly answer the question. Where does that leave us? In constructing an answer, we need to return to our constitutional system of government. Remember, the California Legislature makes the laws, but they just sit on pages in books, gathering dust, until real people start applying them to real life. Among these are the people in the executive branch of government, including the California Department of Education (CDE) and local school districts. There are also the judges on the state and county courts, acting as the judicial branch. And there are people like us: Parents who are dedicated to homeschooling our children, and who would prefer to respect the law - in return for respect from the law.


Part 2: THE EDUCATION CODE AND PRIVATE HOMESCHOOLING

Let's look at statutes and how to interpret them. So what is a statute? (Along with "trial," it's one of the most commonly misspelled words in legal language. When I taught Criminal Law, I emphasized typical mistakes with the following blackboard quiz: "Who is more likely to be convicted of a crime - someone who confesses in the middle of a trail, or someone who violates a statue?") A "statute" is a law written by Congress or a state legislature. Statutes are collected in sets, typically called "codes." In California there are a variety of codes: Civil, Health and Safety, and Penal, to name a few. Each statute is considered to be a "section" of some code and is accordingly assigned a chronological number. (The abbreviation for "section" is the symbol "§.") Let's focus on Education Code section 48222, the statute that permits private schooling. (See footnote 11.)


Our task is to figure out what the statute means. More specifically, is a homeschooled child "being instructed in a private full-time day school by persons capable of teaching?" We can break this down further: Are homeschooled children "instructed?" Can a child's home be "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." considered a "private full-time day school?" Might parents be considered "persons capable of teaching?" Although the Legislature could have provided its own definitions of these terms, it didn't, and no examples are given. But there are other laws - common law rules (i.e., those developed by the courts) - which function as guidelines in solving statutory mysteries. These are "rules of construction," which help the courts "construe" (interpret) statutes.


A. Legislative Intent

One of the most fundamental rules of construction is that statutes are to be interpreted consistently with legislative intent.13 Sometimes the Legislature provides specific messages as to its intent - in statutes or committee reports, for example. There does not appear to be any such legislative expression regarding section 48222, and it does not specifically address homeschooling per se. But if legislators had wanted to prohibit private-school homeschooling, wouldn't they have said so, by singling it out? On the other hand, had they wanted to permit it, all they needed to do was recognize vaguely-defined "private schools" - just as they did in section 48222.


"Private school" is also defined in an area of the Education Code entitled "Verification of Private School Instruction."14 In three statutes dealing with affidavit filing and use of service contractors, a private school is defined as a "person, firm, association, partnership, or corporation offering or conducting private school instruction on the elementary or high school level."15 Nothing in that extremely broad definition rules out homeschoolers.


Let's look even more broadly. How restrictive is the Legislature in setting forth the requirements to qualify for the private school exemption? You decide: According to section 48222, a private school must file an annual affidavit (i.e., the R-4), keep attendance, and teach children in English in the several branches of study required in public schools.16 No other conditions must be met to qualify for the exemption. And outside of simple "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 filing" of the R-4 affidavit,17 no governmental body or official has general authority to evaluate the validity of a particular school's claim to the exemption. In fact, as long as the affidavit is filed and a student is verified as enrolled in and regularly attending a private school, the Student Attendance Review Board has no power to issue a subpoena in enforcing truancy laws.18 As to the required information in the affidavit, it is quite basic: names and addresses of school, administrator(s) and record custodian; enrollment; a statement that the school maintains records of attendance, courses of study and faculty information (names, addresses, educational qualifications); and a statement regarding employee criminal record information.19 With so few limitations on the private school exemption, it seems reasonable to infer that the legislative intent was to take a broad, open-minded approach to the definition of a private school.


A private school must also meet various miscellaneous requirements once it is in operation.20 None, however, places any limits on the identity of the teachers or the structure or location of the school. Nor do these laws have any impact on the validity of the school or its use of the exemption. And they do not clearly conflict with the idea that a family may create its own school.


Looking still more broadly: What is the general purpose of California's compulsory education law? Presumably, it's to ensure that children spend a significant portion of their time learning rather than, say, roaming the streets.21 If indeed that were the intent of the Legislature, homeschooling does a pretty fair job of satisfying it.


Even in the area of public schooling, the Education Code reveals declared social policies consistent with acceptance of a homeschooling alternative. Section 51745, added to the Education Code in 1979, authorized public school independent study programs (ISPs). Section 35160.1 (written in 1987) indicates a general legislative intent to permit broad flexibility in education: "The Legislature finds and declares that school districts, county boards of education, and county superintendents of schools have diverse needs unique to their individual communities and programs. Moreover, in addressing their needs, common as well as unique [they] should have the flexibility to create their own unique solutions." In modifying the ISP law in 1989, the Legislature stated its intent "to encourage ... effective alternative education programs designed to respond to the different ways pupils acquire learning and to provide alternative means for pupils to complete their prescribed course of study. The Legislature finds and declares that independent study is an educational alternative that allows the flexibility in scheduling and learning activities required by many pupils." The Legislature further declared an intent "to ensure that independent study is an effective alternative choice for pupils and their families."22 And in 1992 the charter (public) school law was passed for a number of reasons, among them to "[e]ncourage the use of different and innovative teaching methods" and to "[p]rovide parents and pupils with expanded choices in the types of educational opportunities that are available within the public school system."23 It is difficult to reconcile these expressions of legislative intent with a severely restrictive approach to homeschooling.


It is also worth noting that, in other contexts, the Legislature has expressly acknowledged parents' important right to educate their children. In an introductory statement to a 1992 policy mandating instruction of parenting skills in the public schools, the Legislature "declare[d] the following: (1) The family is our most fundamental social institution and the means by which we care for, prepare, and train our children to be productive members of society. . . ."24 And in 1998, the employee fingerprint requirement was amended to exclude "a parent or legal guardian working exclusively with his or her children."25 In sum, the Education Code does not reveal a legislative distrust of homeschooling that would justify reading an exclusionary intent into a particular statute.


B. Plain Meaning

Another basic principle of statutory construction is the "plain meaning" rule. If the meaning is not otherwise clear and there is no specific legal definition, the words "should be given the meaning they bear in ordinary use."26 In other words, you can simply look it up in the dictionary.


The "instruction" aspect of section 48222 shouldn't present much of an issue here. Even public-schooled children are instructed by their parents during non-school hours.


What about "private, full-time day school"? A homeschool is obviously private, not public; it is more full-time than public school; and it generally occurs during the day. But what's the plain meaning of "school"? Is there a "plain" meaning? Webster offers ten general definitions, including "any place, situation, etc., tending to teach anything."27 In 1955, a state Court of Appeal similarly took a broad approach: "The word 'school' has varying connotations. [Citations.] It may mean, among other things, the building in which instruction is given, or the assemblage within a building set aside for the purpose of instruction, or the combination of teacher and pupils for the purpose of giving and receiving instruction; it may be on the mountaintop, or in a school yard, or may be held together by communication through the mails, or the radio or television."28 Given that the Legislature was so nonrestrictive in defining the private school exemption, the home of a homeschooled child ought to qualify as a "school." Finally, can homeschooling parents be "persons capable of teaching"? Why not? As noted in a 1944 Attorney General opinion (examining the statutory predecessor to § 48222), there were no court decisions interpreting the phrase, and there have been none since.29 Webster defines "capable of" as "having the ability or capacity for[;]" synonyms are "adapted, suited."30 So the question comes down to this: Can it be said as a matter of law that parents lack the ability to teach their children? The proposition is absurd, and the Legislature has expressly declared as much. (See Part 2-A, final paragraph, above, quoting § 51220.5, subd. (a)(1).) Alternatively, "capable of teaching" is too vague a standard to support a truancy conviction of otherwise properly homeschooling parents. (See discussions at Parts 2-D, 2-E and 3-F, below.)


C. Statutes "in Pari Materia"

The Attorney General in 1944 stated his "opinion that the standards to be used [for determining whether private school teachers are 'capable of teaching'] should be comparable to those required for public school teachers in similar positions, excepting only the certificates." (The opinion also correctly noted that private school teachers "are not required to hold credentials issued by the State[,]" but private tutors must do so.31) Courts are not bound by Attorney General opinions and will not follow unpersuasive ones.32 The private teacher "standards" opinion was stated only as a conclusion, with no explanation or analysis, so it has no value. Moreover, the reference to "standards" "comparable" to those for public school teachers provided no meaningful guidelines. And application of another rule of statutory interpretation reveals that the opinion was just plain wrong.


"In pari materia" means "on the same subject,"33 and the rule of construction is pretty sensible: Similar statutes should be construed in light of one another - particularly if they deal with the same subject.34 Section 48222 - the private school exemption - may fairly be compared with section 48224, the private tutor exemption. These two statutes were included in a single legislative enactment,35 and they share the same purpose: creating exemptions to the compulsory public school law. For purposes of our analysis, however, there is an important difference. Private tutors must "hold a valid state credential for the grade taught." Private schoolteachers, on the other hand, need only be "persons capable of teaching." I.e., they don't have to be credentialed, as the Attorney General conceded. But for the same reason, there is no logical basis to conclude that there are specific prerequisites (beyond teaching "capability") for private school teaching. Obviously, the Legislature could have imposed such requirements, but instead has chosen to stick with a generally-worded standard that has been part of education law since 1903.36


D. Criminal Laws Interpreted in Defendant's Favor "When language which is reasonably susceptible to two constructions is used in a penal law, ordinarily that construction which is more favorable to the offender will be adopted."37 In other words, it must be clear that you are violating a particular law before a criminal court can convict you of that crime. To the extent that a statute is unclear, you're entitled to the benefit of any reasonable interpretation that would result in your innocence.38 So what does this "penal" principle have to do with the Education Code? Section 48222 is part of the "Compulsory Education Law" within the code. When parents violate that law, their child is a "truant,"39 and they are guilty of an "infraction."40 Although it is less serious than a felony or misdemeanor, an infraction is still a crime.41 Thus, if it is reasonable to interpret homeschooling as within the private school exemption of section 48222, the courts must do so. Of course, it is theoretically possible to construe the statute in a hyper-restrictive manner. (For example, a home can't function as a school; parents without teaching credentials aren't "capable of teaching.") But as the California Supreme Court has said, "'Constructive crimes - crimes built up by courts with the aid of inference, implication, and strained interpretation - are repugnant to the spirit and letter of English and American criminal law.'"42 Is it reasonable to interpret the Education Code so as to permit homeschooling as a private school? Of course it is, and many reasonable people agree. For example, in reviewing the status of home education in California, the editor-in-chief of the Western State University Law Review noted that "parents may qualify their home as a private school and file an annual private school affidavit…"43 E. Construction Favoring Validity The Constitution is the ultimate authority for all laws. If a statute violates the Constitution, then the statute itself is illegal and can't be enforced.44 But as a matter of policy, courts prefer not to deal with constitutional issues. Faced with declaring a statute unconstitutional, a court will not do so if a reasonable interpretation of the statute makes it valid.45 In Part 3 of this essay, you'll see that a number of serious constitutional issues are raised by an anti-homeschooling interpretation of the Education Code. So if the Code can be construed in such a way as not to unduly restrict homeschooling, it should be done. Here is as reasonable an interpretation as I can manage: If parents are capable of teaching their children, they can do so by designating their home as a private school and by fulfilling the requirements for those schools.


Part 3: CONSTITUTIONAL ISSUES
A. Introduction

As you now know, the Education Code says nothing about homeschooling per se.46

Essentially, two statutory issues must be resolved: (1) whether a home school can be considered a "private full-time day school," and (2) whether homeschooling parents can be considered "persons capable of teaching." If the answer to both questions is yes, parents can take certain basic steps to qualify their home as a private school under that exemption to the Compulsory Education Law. If the answer to either question is no, where does that leave us? We need to look for a higher authority - the Constitution(s). A constitution is a document that sets up a government. It gives the government power to act, and it places limits on that power.


You could say that it's the fundamental law that governs government. If the government messes up in some way, it is worthwhile to check the constitution to see if any of its provisions have been violated.


Our first step is to identify which "government" we're dealing with. In our hypothetical case, it is the California Legislature (which passed the Education Code that supposedly outlaws homeschooling) and/or a county administrative agency or officer (who is trying to enforce the Compulsory Education Law against homeschoolers). The laws and actions of these entities must be consistent with both the California and the United States Constitutions.


This part of the essay focuses almost exclusively on the federal constitution, a document that contains most of the legal concepts relevant to our concerns.47 When the Constitution was ratified in 1787, it had quite a lot to say about the structure and powers of the federal government but relatively little about limitations on those powers. Not surprisingly, for a people so recently concerned about overbearing centralized government, limits arrived pretty quickly. In 1791 the first ten amendments, popularly known as the "Bill of Rights," were added to the Constitution. These amendments are primarily a statement of many of our basic rights (e.g., freedoms of speech and religion). But they literally protect us only from the federal government. So how can we use the Bill of Rights to protect us from oppressive state (or county) power? Fast-forward to 1868: In the wake of the Civil War, Americans turned their constitutional attention to the states and passed the Fourteenth Amendment. Among other provisions, it declares that "[n]o State shall…deprive any person of life, liberty, or property, without due process of law…." The concept of "due process" is central to our analysis of homeschooling regulation. Basically, it means "fundamental fairness";48 the idea is that if the government is going to mess around with your rights, it has to be fair about it. The more important the right trampled on, the harder the government must work to achieve fairness. If the right is considered to be a "fundamental" one, then a court would subject the government's action or law to "strict scrutiny," asking the following questions: Did the government have a sufficiently compelling interest in its action? If so, was the action necessary to promote that interest? As a corollary, were there less restrictive alternatives that could have promoted the government's interest?49 It is often difficult for the government to justify its action according to such a strict test.


If the injured right is not considered fundamental, the scrutiny is not at all strict, although government action must still satisfy a court's inquiry as to whether the government had a legitimate interest in its action. If so, was the action reasonably related to that interest?50 With this "rational basis" test, the government has a much easier time justifying its actions. To challenge a law as unconstitutional, it is therefore helpful to argue that it interferes with one or more fundamental rights.


Now, back to the Bill of Rights as applied to the states. During the 20th Century, the courts recognized that among our "liberty" rights protected by the Due Process clause are most of the guarantees in the Bill of Rights - regardless of whether they are "fundamental" or not.51 That is how the first ten amendments protect us from state and local, as well as federal, power.


But doesn't the reference to "liberty" in the Due Process Clause refer to more than the specific rights listed in 1791? Absolutely. The United States Supreme Court - the last word in interpreting the Constitution - has long recognized that the Bill of Rights was not meant to be an exclusive statement of our basic rights as citizens.52 In fact, the Ninth Amendment comes right out and says so: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." So what are those "nonenumerated" rights? More specifically, is there a fundamental right to educate your children at home?


B. Parental Rights

The Supreme Court has not answered that question directly, as a general principle. But a series of decisions has given us plenty to work with. It is clear that as parents we have fundamentally protected rights. Those rights begin with the decision whether to have children,53 but they do not end there. As early as 1923,54 and as recently as 1990,55 the Supreme Court has recognized "the right of parents . . . to direct the education of their children . . . ." (Emphasis added.)56 As a result, the state cannot foreclose a private school option for parents who do not want to send their children to public school.57 More importantly, the Supreme Court based this decision not on the value of private schools as such, but on the parents' role in the family and society: "The child is not the mere creature of the state; those who nurture [the child] and direct [his or her] destiny have the right, coupled with the high duty, to recognize and prepare [the child] for additional obligations."58 How important can such a right and duty be, if the state requires parents to send children away from home for an education? Very important, indeed. In 1972 the Supreme Court rejected a state compulsory education law that prohibited Amish parents from educating their older children at home, as required by the Amish religion.59 Although the case was analyzed primarily on "freedom of religion" grounds, the court also relied on the parents' fundamental interest in guiding their children's education.60 As a general rule, then, does a parent's fundamental right to direct her children's education include the right to provide that education directly? The Supreme Court has not faced this precise question, so it ultimately remains an open one. And although without precedential value (as an unpublished lower court decision), in 1983 a South Carolina trial court held that the parents' right to teach their children in a home school "is a basic constitutional 'liberty' guaranteed by the U.S. Constitution and the fourteenth amendment of the U.S. Constitution."61 Even if this more specific freedom has yet to be clearly established, the government arguably interferes with the recognized right to direct a child's education when the law absolutely prohibits homeschooling - or severely restricts it to, for example, parents who are credentialed teachers. (Such a restriction would foreclose homeschooling for the vast majority of families. And even credentialed teacher-parents would typically be forced into the difficult choice between pursuing the teaching profession outside the home and homeschooling their children without income.) Keep in mind that a fundamental "right to homeschool" would not prevent the government from regulating homeschooling in any way. (If you're offering your children a workshop in, say, car theft, please don't rely on this essay as a defense to your felony prosecution!) But it would mean that state regulation that interferes with the right would be subjected to "strict scrutiny" if it is challenged in court.


C. Freedom of Religion

The First Amendment to the Constitution guarantees the "free exercise" of religion.


Parents who homeschool for religious reasons are protected by this clause.62 A word of constitutional caution: The only absolute guarantee is that you can believe anything; the government won't stop you. Other than that, constitutional rights are relative. Believe what you want, but once you act on those beliefs, you are not free to ignore all secular law. Still, the freedom of religion is a fundamental right, and the United States Supreme Court has specifically applied it to homeschoolers.63


D. Freedom of Expression

The First Amendment also protects the "freedom of speech." The courts have interpreted "speech" very broadly; the idea is that we have the right to express our beliefs, whether verbally or otherwise - by burning flags, for example.64 At the same time, we have the right not to have beliefs forced on us, or on our children. The first amendment protects us from government invasion of the "sphere of intellect and spirit . . . ."65 One theory here would be that, for some parents, homeschooling is an expression of their fundamental (non-religious) beliefs about parenting, education and the state.


E. Right to Privacy

The United States Constitution doesn't come out and say that there is a general right to privacy. But the Supreme Court has recognized that privacy is one of the central themes of the Bill of Rights.66 Given that rights are not limited to those stated in the Constitution, the Court took the next step of declaring a constitutional right to personal and family privacy. In fact, the Court went even further, recognizing that the right to privacy is "older than the Bill of Rights - older than our political parties, older than our school system." (Emphasis added.)67 Remember that California laws and agencies also must answer to the California Constitution. That document, unlike the federal one, begins with a statement of basic rights: "All people are by nature free and independent and have inalienable rights. Among these are . . . pursuing and obtaining safety, happiness, and privacy." (Emphasis added.)68 The courts have interpreted the state privacy right to be broader than the federal right.69 One aspect of constitutional privacy is a parent's right to direct her child's education, as discussed above. This right arguably prevents the state from outlawing homeschooling altogether. But even where a state only regulates homeschooling, it must respect privacy rights. The California privacy provision was written primarily to deal with "the uncontrolled collection and use of personal information by government and business. [Citations.]"70 To the extent that the government singles out homeschoolers and requires them to justify their actions, privacy would be invaded.


F. Due Process - Notice

Earlier, we looked at the important constitutional concept of due process, or "fundamental fairness." This right is guaranteed by both the federal and state constitutions.71 In some ways, the concept is about as elastic and subjective as it sounds. But through exploring due process in individual cases, the courts have developed some specific guidelines.

One of them is fair notice: Before you can be deprived of liberty or property because of your action, the law should have made it reasonably clear that the action was improper.72 If a statute made it a crime to be "rude" to a government official, for example, it would not survive a constitutional challenge; reasonable people would disagree on what conduct was prohibited.


Now, look again at Education Code section 48222 - the statute that authorizes private schooling in California. If you set up your parent/teacher-child/student relationship as a school, and file the appropriate paperwork - who's to say that the school is not a "private fulltime day school" and that you are not a "person capable of teaching?" Can such vague phrases really be the basis for a truancy prosecution against homeschooling parents? Not according to a Santa Barbara County judge who, in an unpublished 1986 case, declared section 48222 "unconstitutionally vague and unenforceable" and dismissed the county's case against two sets of parents.73 By the way, because this was a trial court decision (as opposed to an appellate one), it did not set a legal precedent for subsequent cases and you won't find it in your local law library. If it happened once, though, it can happen again. And section 48222 has not been amended since 1976, so it is subject to the same challenge today.


G. Due Process

Arbitrariness Another basic element of due process is that it protects us from arbitrary governmental action. Even if a law does not affect fundamental rights, it must have some reasonable relationship to a proper legislative purpose.74 What about a law that effectively recognizes a private school only to the extent that its students are not the children of its teachers? It sounds arbitrary and irrational - are teachers any less qualified for being parents? And if the point is to keep parents and children away from each other during the day, that hardly seems a proper governmental purpose.


H. Equal Protection

Under the Fourteenth Amendment to the Constitution, each state must guarantee "equal protection of the laws" to its people.75 The California Constitution provides the same guarantee.76 Like other constitutional rights, this one is not absolute. Laws classify people, things and situations all the time without being declared unconstitutional. Zoning ordinances, endangered species protection, and speed limits are just a few obvious examples. (If you get pulled over for driving 35 miles per hour in a 25 mph zone, it will do you no good to argue that the Vehicle Code discriminates against fast drivers.) The bottom line is that classifications must be rationally related to legitimate state policies.77 The analysis is very different, however, if the law works against a "suspect class" (e.g., race, religion, national origin) or has a negative impact on a "fundamental right."78 In those cases, the law is subject to "strict scrutiny" if it is challenged in court, as explained in section A, above.79 Homeschoolers have not been recognized as a suspect class in this analytical system.

But remember that the right to direct your child's education is indeed a "fundamental" one. So if a law or governmental practice singles out homeschoolers for different treatment, the state should have to point to some powerful justification. It would be difficult to explain why (1) anyone capable of teaching may set up a private school in their own home - as long as they teach only other people's children; or (2) if I do capably teach both my own child and another child in a private home school, only the other child is exempt from the public school requirement.


I. Strict Scrutiny of Anti-Homeschooling Laws or Actions

As we've seen, a state's anti-homeschooling policies should trigger strict constitutional scrutiny. The general right to privacy; the specific right to direct your children's education; the freedoms of religion and expression - all these are fundamental rights guaranteed by the Constitution. Under the strict scrutiny test, the state bears the burden of establishing that it has a "compelling interest" that justifies a law or an action and that the classification is "necessary" to further that purpose or interest.


Does the state have a "compelling" interest in the area of education? Probably so, but that interest needs to be defined. Certainly, there could be no compelling interest in ensuring that parents do not educate their children. Nor would the state's economic interest in high public school enrollment be sufficiently compelling to force all children into the public school system. On the other hand, the state does have strong reasons for seeing that people are not thoroughly ignorant by the time they become adults. The United States Supreme Court has recognized the state's "high responsibility for education of its citizens . . . ."80 So let's assume that the state has identified a compelling interest in education itself.


Would that justify a law banning all private schools? No, that's not necessary to achieve the goal of ensuring that education occurs. What about a law that permits private schooling as long as it's not done in the family home? Same problem! Here, I'll defer to studies that have repeatedly shown that homeschooled children generally are educated as well as, if not better than, their public-schooled counterparts.81 How can it be necessary to ban homeschooling when it actually helps the state achieve its goal of educating children? Notice that after all the legal jargon and constitutional concepts are laid out and analyzed to death, the homeschooling issue comes down to a "real-life" dispute: Are parents really able to do a decent job of educating their children? If so, the state has no business preventing or overly restricting homeschooling. In that sense, the shape and direction of the law are ultimately our responsibility as homeschoolers.


Part 4: THE "OTHER SIDE"
A. Introduction

If you've read this far, you may be convinced that homeschooling - in particular, declaring your home a private school - is perfectly legal for a number of reasons. As I've tried to show, that's a valid conclusion. But it's important to remember that it is a conclusion, not an observation. Unfortunately, there is a difference.


It would be comforting, I suppose, to believe that social law is as clear and straightforward as, say, the law of gravity. No such luck. Ultimately, the law is what the courts say it is - if and when they are faced with it. (Remember: The legislative branch of government only writes a law; the executive branch administers it; and - if it results in a dispute that winds up in the court system - the judicial branch must interpret the law and apply it to the situation.


In our "common law" system, these interpretations may also become law.) But even the judges have difficulty fashioning their statements of law. My own brief survey of the United States Supreme Court's 1991-1992 term revealed that those nine experienced, knowledgeable judges agreed on the result of a case only 39 percent of the time - and in most of those cases, they disagreed as to the reasoning behind the result.


If law is really so nebulous, why bother trying to figure it out? The answer is simple: We have no choice. It governs us - whatever "it" is. If we violate it, we may be in trouble. And if it provides us with rights that are violated, we may be able to take action. If the best we can do is make an educated, intelligent guess as to what the law probably means, then it's worthwhile to do that.


We need to keep something else in mind: As homeschooling parents, we're "taking a stand" simply by living our lives day to day. We can arm ourselves with glowing studies (see fn. 81), quotations from Holt82, Llewellyn83, Gatto84 and Guterson85, and stories of the Colfaxes'86 - and of our own children's - achievements. But to some extent, we're still out there on the edge (even if it's the front edge), redefining reality, stretching the bell curve.... We're not acting in a vacuum, either. Incredibly, there are still people in responsible positions of government who think we're doing something wrong. Not surprisingly, they have their own very different interpretations of homeschooling law, and we need to be familiar with them.


By the way, it's worth noting that most education officials have sensibly chosen an open-minded approach in interpreting section 48222's private school exemption. In 1987 a California School Boards Association Sample Board Policy statement provided that according to the CDE, "parents who wish to educate their children without local school district involvement may file an affidavit for exemption as a private school."87 A 1988 CDE stated: "We advise all parents who contact us about home schooling to try to negotiate an Independent Study agreement rather than establish and operate a private school in their home, although this is a legal option for them."88 That same year, the United States Department of Education also recognized section 48222 as a legal option for homeschoolers.89 Before 1990 the R-4 affidavit form printed by the CDE contained instructions specifically for homeschoolers.90 A 1991 magazine published by the Association of California School Administrators included the following statement: "California law allows parents to teach their children at home if they file an affidavit with the state declaring their homes to be private schools."91 As an aside, it is also interesting to note that in 1992 the CDE agreed to the following settlement term in a federal lawsuit (i.e., this provision was actually incorporated into the court's judgment): "[D]efendants acknowledge that a private K-12 school is not within the jurisdiction of the State Department of Education for the purpose of approval of courses or course content or issuance of regulations, except as provided by law."92 Of greatest significance to homeschooling families, most counties continue to accept private school affidavits from homeschoolers and treat them as valid.93 It is unfortunate that since 1992 the CDE appears to have formally sided with the antihomeschooling minority, but it is not cause for great concern. The CDE has no specific legal authority to take action against private homeschoolers with properly filed affidavits, as that agency does not regulate private schools (nor does any other). Nor should the CDE's recent anti-homeschooling arguments influence the courts if the issue were to present itself. As a general principle, a court will give some weight to an administrative interpretation of a statute, but that principle applies only where the agency is authorized to interpret and enforce the relevant provision of law.94 Moreover, it applies to a "'contemporaneous administrative construction of [an enactment,]'"95 not one suddenly developed decades later. Finally, the fact that the CDE has changed its tune over the years undercuts the force of its current position.96 In any event, no one has presented an anti-homeschooling interpretation of section 48222 that can withstand legal scrutiny. In the remainder of Part 4, we'll examine three legal justifications offered by the minority opposition: (1) published case law unfavorable to private school homeschooling; (2) an interpretation of the private school exemption as limited to business operations; and (3) a historical analysis of the compulsory education exemptions.


B. The Turner and Shinn Cases

Some public school officials have sought to discourage homeschoolers by citing two court decisions for the proposition that there is no private home school exemption to the compulsory attendance law: People v. Turner and In re Shinn.97 In Turner, the homeschooling parents of three children were prosecuted for violating the compulsory attendance law. They were convicted in the Los Angeles Municipal Court and sentenced to pay a $30 fine. They appealed to the appellate department of the Los Angeles County Superior Court. The latter court published its opinion - its interpretation of the law and application of that law to the Turners' case - and that is what we refer to as the Turner decision. The Superior Court affirmed the Municipal Court's judgment against the Turners; i.e., they lost.


Let's look at the Turners' main arguments, the court's reasons for rejecting them, and our own reasons for rejecting the court's decision 47 years later: (1) Constitutionality. The Turners maintained that to the extent the compulsory education law prevented parents from homeschooling their children, it was unconstitutional - a violation of parents' rights to direct their children's education.98 (See Part 3 of this essay.) The court responded that as long as the state permitted private schooling (outside the home, of course!) and private tutoring, the law was valid. Outlawing homeschooling by uncredentialed parents was OK, as a "reasonable" state regulation.99 What's wrong with this conclusion? As explained in Part 3-A above, if a legal restriction affects the exercise of a fundamental right, the law must be much more than "reasonable"; it must be necessary to a compelling state interest. So why didn't the Turner court rely on this "strict scrutiny" test for constitutionality? Simple: The United States Supreme Court hadn't clearly adopted such a test yet - at least, not in the area of fundamental rights implicit in the Constitution.100 Instead, Turner relied on two 1929 cases: a United States Supreme Court decision simply noting that a state's power "to require that all children of proper age attend some school" was not at issue in that case; and a New Hampshire decision that relied on a "reasonableness" test in balancing the parents' rights against the state's rights.101 For over 30 years - if not when it was announced - Turner has been a constitutionally worthless decision.


(2) Private Home School. The Turners also argued that their home was a "private full-time day school" and they were "persons capable of instructing" their children (i.e., that they were within the private school exemption to the compulsory attendance law).102 (See Part 2 of this essay.) The court ruled that because the Legislature provided for both private school and private tutor exemptions, it was somehow obvious that only the latter could take place in the home. After all, if parents or hired tutors could function as a private home school, there was no need for a separate exemption for them; everyone could simply treat themselves as private schools, thereby avoiding the requirement of a teaching credential. And the courts understandably assume that the Legislature would not write an unnecessary law.103 There are at least four major holes in the Turner approach to the private school exemption.


One is a failure of logic and imagination. The Legislature presumably did have distinct interests in providing separate exemptions for private schools and private tutorials, but those interests did not involve the location of the teaching. On the contrary, private tutoring of other people's children (including in the students' homes) is a recognized business entirely separate from private schools. The point of the credential requirement was presumably to protect children and their parents from incompetent tutors, not to protect children from their parents.104


Second, the court's concern was misplaced. The Turner judges worried about the administrative difficulties of supervising "widely scattered" individual home schools as compared with "organized private schools."105 But the Legislature did not provide that private schools must be "organized" in some fashion, nor prevent them from developing in a "widely scattered" way, nor place any limit on the number of private schools that could be established in the state. More fundamentally, the Legislature had not even provided for government supervision of private schools. Obviously the lawmaking body of government did not share the court's concern.


Third, a change in the law has removed what little basis there may have been for Turner's concern about supervision of private schools. As of 1967 - long after Turner was decided - the private school exemption has been regulated by the straightforward affidavit filing requirement.106 By contrast, the private tutor exemption has been regulated by mandating a teaching credential.107 These are simply different alternatives to public school; neither excludes homeschooling.

Finally - and most importantly - remember all those helpful principles of statutory interpretation discussed in Part 2 of this essay? If a statute's meaning is at all up for grabs, the courts are supposed to rely on those principles in figuring it out. But Turner neither acknowledged nor applied any of them.


Last word on Turner

As a decision of the appellate division of the Los Angeles County Superior Court, it did not establish a precedent that must be followed in all California trial courts. In our state, that type of precedent is set by the Supreme Court and the six Courts of Appeal.108 The Shinn case did come from a Court of Appeal. Basically, it adopted the Turner analysis without any discussion and with the same problems. True, Shinn set a stronger precedent than Turner, simply because of the higher-level court that issued the decision. But the good news is that Shinn did not rest its conclusion (that the Shinn children were habitual truants) solely on the parents' status as uncredentialed tutors, as Turner had done. Instead, the court looked at the evidence in that case to determine that the children were not being "instructed in a private full-time day school by persons capable of teaching."109 In Shinn, the home school didn't fully comply with the Education Code requirements that certain course areas be taught in private schools.110 Following that case, then, a private home school that is in full compliance with the Code should be exempted from the compulsory attendance law.


Note on Other Cases

Since 1961 no published California cases have directly addressed the right to homeschool in general, or as applied to the private school exemption in particular.111 Still, at least two subsequent decisions may hint that the unjustifiably restrictive Turner approach will no longer be followed.


In the 1977 case of People v. Serna,112 parents who refused to send their children to a segregated school were convicted of violating the compulsory education law. The Court of Appeal rejected a defense based on the parents' asserted "constitutional right to keep their children out of that public school."113 The parents relied on Wisconsin v. Yoder, where the United States Supreme Court protected Amish homeschooling both on religious grounds and because of the parents' fundamental interest in guiding their children's education.114 The California court treated Yoder as inapplicable for two reasons: (1) "[N]o issue as to religious freedom is involved . . . ." (2) "[N]or is there any showing or contention that these defendants provided their children with any alternative educational program."115 In Yoder, by contrast, "the record showed that the education given to the Amish children in the Amish community was of substantial educational value, even though not the exact equivalent of the secondary education therein involved."116 While the value of this ruling is only in its implication, it is quite a powerful one: Had the parents alleged and proved that they "provided their children with [an] alternative educational program" "of substantial educational value," the parents' fundamental constitutional right to direct their children's education might have been a valid defense.117 Although ruling against a homeschooling parent in 1996, the Cassady v. Signorelli decision118 indicated a similar willingness to consider a general parental right to homeschool.

In one aspect of a custody/visitation battle, the trial court had ordered that the couple's daughter "should attend an appropriate public, private, or parochial school, rather than be home schooled by mother."119 As expressed in Shinn, and as implied in Serna, the problem lay in the facts of the specific case; the Court of Appeal was not concerned about home schooling per se. On the contrary, the court's conclusion was striking: "While we acknowledge a parent might normally have the right to provide home schooling, private schooling, or governmental schooling to a child, the trial court's ruling on this particular record was certainly not an abuse of discretion. [Citation]."120


C. Private Schools as Businesses

As a family law dispute subject to the discretion of the trial court, the outcome might have been the same even if the mother had relied on the section 48222 private school exemption, which requires that the child be taught by a "person[] capable of teaching[.]" The Court of Appeal approved the trial court's findings as to the mother's problems which "would obviously impair her ability to competently teach a full range of subjects to [her daughter]." (Ibid.) In 1992 the then-Assistant General Counsel to the CDE took the position that under section 48222 (the private school exemption) a private school must be a "business" that "offers its services for compensation" and "solicits enrollment from the public at large." Because a typical home school consists of parents educating their own children, he argued that it could not be a private school. So to be exempt from the compulsory attendance law, parents would have to be credentialed teacher-tutors under section 48224.121 Unfortunately, education offices in several counties adopted this position and threatened action against homeschooling families who otherwise acted properly to register private schools by R-4 affidavit under sections 48222 and 33190.


It should be obvious that the definition of "private school" as a money-based "business" open to the public at large is thoroughly arbitrary and illogical. (Star Trek fans might imagine Mr. Spock's eyebrows rising….) Look through the Education Code: The Legislature has chosen to take a relatively "hands-off" approach to private schooling. Why would legislators have wanted to force private schools to operate only as "businesses?" And if that really were their choice, why keep it a secret? What about other problems associated with a narrow, marketplace definition of "private school?" For example, it would prevent not only homeschooling, but also church schools that operate as ministries.


And here's an interesting question for anti-homeschooling administrators: If there really is an unwritten "business" requirement for the private school exemption, why should we not read it into the tutorial exemption? If it's so obvious that a "private full-time day school" must solicit business from the public, why isn't it equally clear that "a private tutor or other person" (§ 48224) must solicit business from individual families? The answer is, of course, that the Legislature did not have a secret intent to ban homeschooling by restricting exemptions so as to forbid education of children by their own parents. A properly credentialed parent may teach her child pursuant to section 48224, and a parent otherwise capable of teaching may do so under section 48222, as long as she complies with the private school requirements.


D. Historical Analysis

In October 1993, the CDE's Legal Office came up with a new approach, consisting of a three-page historical analysis of the statutory exemptions to mandatory public schooling: The Compulsory Education Law and Home Schooling in California.122 Here's the basic idea: (1) In 1903 and as amended in 1905, the Legislature formally recognized home teaching, along with private schooling and tutoring, as among the exemptions.123 (2) In 1919, as an aspect of one of the many modifications to the statutory scheme over the years, the separate exemption for home teaching disappeared, while private schooling and teaching by tutor "or other person" remained.124 (3) In 1931 a credential requirement was added for the tutor or other person, but not for private school teachers.125


In the opinion of the CDE's Legal Office, this development apparently proves that in 1919 the Legislature intended to outlaw private-school homeschooling. But the author can point to no other indicator of such an intent, so her argument boils down to the claim that the Legislature implicitly restricted private schools to non-homeschoolers, while implicitly limiting the homeschooling option in such a way that one had to become an "other person" equivalent to a tutor. The law provides no support for such a conclusion, however, because "an intention to legislate by implication is not to be presumed."126 After all, it may just as easily be argued that because the Legislature did not expressly prohibit homeschooling, the home exemption was logically rolled into the other alternative teaching exemptions - each of which was spelled out in much more detail than ever before with the 1919 amendment. Under this interpretation, parents were as free as anyone else to create a "private full-time day school" in their home; alternatively, they could hire or act as "private tutors or other persons" teaching their children.


Accordingly, there was no need for a separate recognition of a homeschooling exemption.


In other words, from 1903 until 1919, it was enough for a child simply to be "taught . . . at home by any person capable of teaching[.]" There were no other requirements, so there was no need to set up one's home as a private school to be exempt from the compulsory education law. But neither did the law prohibit such an approach. With the 1919 amendment, the Legislature demanded more from those choosing exemptions. (See fn. 124.) The bare fact of home teaching was no longer enough.127 But home teaching did not become illegal. Like everyone else, homeschooling families had to comply with the law - which permitted both private schooling and private tutoring under particular new conditions. Significantly, those conditions included nothing about location; nothing about the relationship between school, teacher/tutor and child; and nothing that even remotely suggested that homeschooling parents were somehow disqualified from relying on the other exemptions.


Curiously, the CDE analysis concludes (at p. 3) that, although the private school exemption is off-limits to homeschoolers, they may rely on the exemption for credentialed private tutors or other persons. There is, of course, no logical reason for this distinction, and the CDE analysis offers none. Its only authority for the claim: People v. Turner. (See Part 4-B, above.) There is another weakness in the CDE's historical analysis. It correctly notes that the 1903, 1905 and 1919 versions of the law generally directed parents to "send" children to public school, subject to exemptions. But those exemptions - including the one for private school - did not require parents to "send" children anywhere; i.e., the exemption was for a child "being taught in a private school" (1903) or "being instructed in a private full-time day school by persons capable of teaching" (1919). (Emphases added.) If a private school could not be at home as a result of the 1919 amendment, the Legislature presumably would have made that clear; one way might have been to frame the exemption as one for children who are "sent" to private school. Again, it is unreasonable simply to presume that the Legislature intended to outlaw private homeschooling.


Finally, recall that the 1993 CDE legal history is yet another unenforceable opinion from an executive agency - one with no power to evaluate the validity of private schools that properly file the required affidavits. The analysis itself concludes: "The guidance in this document is not binding on local educational agencies. Except for the statutes and court decisions that are referenced herein, this document is exemplary, and compliance with it is not mandatory."


Conclusion

As vague as the law may be in general - and regarding California homeschooling in particular - it provides us with an enormous amount of favorable material and ideas. With no definitive statement from the Legislature or courts as to the current state of the law, we have reason to be both confident and wary. Wary of legal abuses and misinterpretations, as well as attempts to secure restrictive changes or readings of the law. Confident that the law is on our side, or at least is very arguably there - and should be there. As individual homeschoolers and as organized groups, we should be ready to defend our rights at administrative hearings and in the courts and Legislature, if necessary.


But we need to remember that Law is only the formal process of administering the conduct of society. There are infinite informal processes - from the media to meetings, from theory to theater. We need to be on top of it all, if we can. To the extent that the law is a product of democracy, however imperfectly, it is society's perception of homeschoolers that may well determine our legal fate. And ultimately, that perception is up to us.


Stephen Greenberg is an appellate attorney specializing in criminal law. He has also taught undergraduate law courses with the University of Maryland, San Francisco State University, University of San Francisco and New College of California. He and Marianna are the homeschooling parents of Liana, 13, and Toby, 12.


Appendix

1. Ruling on Demurrer, People v. Darrah, et al. (March 10, 1986) Santa Barbara County, Santa Maria District, Municipal Court Nos. 853104, 853105.

2. California School Boards Association Sample Board Policy 1621 (1987).

3. California State Department of Education letter from L.P. Hartzler, Ph.D. (1988).

4. U.S. Department of Education Office of Research, State Statutory Requirements on Home Schooling (1988).

5. California Department of Education Private School Affidavit - Fall 1988 (form R-4), Instructions for Completion of Selected Items.

6. Home schooling growing in popularity with parents, Association of California School Administrators, EDCAL (Dec. 16, 1991).

7. Judgment Granting Declaratory Judgment by Stipulation, ICR v. Honig, et al. (S.D.Cal. 1992) Civil No. 90-0483-B-(M).

8. Letter from Roger D. Wolfertz, Assistant General Counsel, California Department of Education, in Association of California School Administrators, EDCAL (Feb. 3, 1992), p.2.

9. Legal Office, California Department of Education, The Compulsory Education Law and Home Schooling in California (1993) © 2000 Stephen Greenberg

Footnotes

1 This essay is a revised version of "Toward a Theory of Legal Homeschooling in California" (HomeSchool Association of California, 1993), by the same author.

2 United States Constitution, article I, section 8; Amendments 13, section 2; 14, section 5; 1,5 section 2; 19, paragraph 2; 20, sections 3 and 4; 23, section 2; 24, section 2; and 26, section 2; McCulloch v. Maryland (1819) 4 Wheaton 316 [4 L.Ed. 579].

3 United States Constitution, article I, section 8, clause 1.

4 See, e.g. 20 United States Code, section 1400, subdivision (b)(9). [Congressional finding of national interest in federal assistance to local educational programs for children with disabilities]; cf. United States v. Lopez (1995) 514 U.S. 549, 555-556; [broad interstate commerce power "does not include the authority to regulate each and every aspect of local schools."].

5 "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 6 United States Constitution, article VI, section 2.

7 Brown v. Board of Education (1954) 347 U.S. 483.

8 Pierce v. Society of Sisters (1925) 268 U.S. 510.

9 Id. at p. 535.

10 Education Code section 48200 et seq. Unless otherwise noted, all further statutory citations are to the California Education Code.

11 Section 48224.

12 Section 48222. Because I'm focusing almost entirely on the private school exemption as applied to a homeschooling family, this statute is especially important. It provides as follows: "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.

13 "[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining that intent, we consider the statute read as a whole, harmonizing the various elements by considering each clause and section in the context of the overall statutory framework." (People v. Jenkins (1995) 10 Cal.4th 234, 246.)

14 Education Code, Title 2, Division 2, Part 20, chapter 2, article 5.

15 Sections 33190; 33192, subdivision (i); 33193, subdivision (d)(1).

16 Section 48222 specifically refers to the affidavit requirement detailed in section 33190 and the course of study requirements listed in sections 51210 (grades 1 through 6) and 51220 (grades 7 through 12).

17 Section 48222.

18 Section 48321.5, subdivision (e).

19 Section 33190, subdivisions (a) through (g). "'Course of Study' means the planned content of a series of classes, courses, subjects, studies, or related activities." (§ 51014.) The criminal record information statute applies only to a school with actual employees; if noncredentialed, they must submit fingerprints. The statute specifically exempts "a parent or legal guardian working exclusively with his or her children." (§ 44237, subd. (b)(4).)

20 These laws deal with areas such as sexual harassment policy (§§ 231.5, 210.1); emergency access gates (§ 32020); first aid equipment (§ 32040 et seq.); toxic art supplies (§ 32060 et seq.); earthquake emergency plan (§§ 35296, 35297); fire safety inspections (Health & Saf. Code, § 13140 et seq.); fluoride opportunity (Health & Saf. Code, § 104830); separate drink containers (Health & Saf. Code, § 118375); immunization or waiver (Health & Saf. Code, §§ 120335, 120365, 120375); tuberculosis testing (Health & Saf. Code, §§ 121525, 121545); health care screening or waiver (Health & Saf. Code, §§ 124085, 124100); and child abuse reporting (Pen. Code, §§ 11165.7, 11166).

21 "Compulsory education laws…demonstrate our recognition of the importance of education to our democratic society….[Education] is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment." (Brown v. Board of Education (l954) 347 U.S. 483, 493.) 22 Statutes 1989, chapter 1089, section 1.

23 Section 47600 et seq.

24 Section 51220.5, subdivision (a)(1).

25 Education Code section 44237, subdivision (b)(4); Statutes 1998, chapter 840, sections 3, 4.

26 Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [citations omitted].

27 Webster's Encyclopedic Unabridged Dictionary of the English Language (1989) p. 1278.

28 National Schools v. City of Los Angeles (1955) 135 Cal.App.2d 311, 317-318.

29 3 California Attorney General Opinions 191, 193 (1944) (re former § 16624).

30 Webster's Encyclopedic Unabridged Dictionary of the English Language (1989) pp. 218-219.

31 3 California Attorney General Opinions 191, 193 [citing former § 16224 re private school exemption and former § 16225 re tutor exemption]. The distinction continues today. (§§ 48222, 48224.)

32 Sanchez v. Unemployment Ins. Appeals Bd. (1977) 20 Cal.3d 55, 66.

33 Black's Law Dictionary (Rev. 7th ed., 1999) p. 794.

34 People v. Caudillo (1978) 21 Cal.3d 562, 585, overruled on another point in People v. Martinez (1999) 20 Cal.4th 225, 237, fn. 6.

35 Statutes 1976, chapter 1010, section 2. (These are the most recent incarnations of the tutorial and private school exemptions. For a historical discussion, see Part 4-D of this essay.)

36 Statutes 1903, chapter 270, section 1. (See discussion at Part 4-D, below.) In 1931 the Legislature added the credential requirement for tutors, but not for private school teachers. (Stats. 1931, ch. 1215, § 3.)

37 People v. Simon (1995) 9 Cal.4th 493, 517.

38 Id. at pp. 517-518; United States v. R.L.C. (1992) 503 U.S. 291, 305.

39 Section 48260.

40 Section 48293.

41 Penal Code section 16.

42 Keeler v. Superior Court (1970) 2 Cal.3d 619, 632, quoting Ex parte McNulty (1888) 77 Cal. 164, 168.

43 Lachman, Home Education and Fundamental Rights: Can Johnny's Parents Teach Johnny? (1991) 18 Western St.U. L.Rev. 731, 767. See similar interpretations in Part 4-A, paragraph 5, below.

44 Marbury v. Madison (1803) 1 Cranch 137 [2 L.Ed. 60].

45 People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509.

46 That was not always so. See "Historical Analysis" in Part 4, below.

47 Let me give credit where it's due. To a great extent, my analysis of federal constitutional law as it applies to homeschooling relies on Branton G. Lachman's law review article, Home Education and Fundamental Rights: Can Johnny's Parents Teach Johnny? 18 Western State University Law Review (1991), at pp. 731-770. If the publication is not in your county law library, you can try writing to the Law Review at 1111 N. State College Blvd., Fullerton, CA 92631, or calling them at (714) 871-1820. You may also want to review an even more detailed analysis of homeschooling and the United States Constitution in Whitehead and Crow, Home Education: Rights and Reasons

48 Betts v. Brady (1942) 316 U.S. 455, 462.

49 Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 913.

50 Ibid.

51 Gideon v. Wainwright (1963) 372 U.S. 335, 341-342.

52 E.g., Griswold v. Connecticut (1965) 381 U.S. 479, 481-486. (Crossway Books, 1993), at pp. 225-325. (Caution: While providing a very thorough analysis of federal constitutional issues, this book does not offer an adequate analysis of California law.)

53 Roe v. Wade (1973) 410 U.S. 113, 153.

54 Meyer v. Nebraska (1923) 262 U.S. 390, 399-400.

55 Employment Div., Oregon Dept. of Human Res. v. Smith (1990) 494 U.S. 872, 881.

56 Ibid.

57 Pierce v. Society of Sisters (1925) 268 U.S. 510.

58 Id. at p. 535.

59 Wisconsin v. Yoder (1972) 406 U.S. 205.

60 Id. at p. 232: "[T]his case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." See also Employment Div., Oregon Dept. of Human Res. v. Smith (1990) 494 U.S. 872, 881 [describing Yoder as a case which involved "the Free Exercise Clause in conjunction with [an]other constitutional protection[], . . .the right of parents . . . to direct the education of their children . . . ."

61 Calhoun County Dept. of Education v. Page No. 83DR966 (S.C. Fam. Ct., Calhoun County, June 28, 1983), appeal dismissed, No. 83-CP-40-0830 (S.C. Sup. Ct. Feb. 3, 1984).

62 Wisconsin v. Yoder (1972) 406 U.S. 205.

63 Ibid.

64 United States v. Eichman (1990) 496 U.S. 310.

65 West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 642.

66 Griswold v. Connecticut (1965) 381 U.S. 479, 484-485.

67 Id. at p. 486.

68 California Constitution, article I, section 1.

69 American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 326-327.

70 Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 16.

71 United States Constitution, Fourteenth Amendment; California Constitution, article I, section 7, subdivision (a).

72 Connally v. General Construction Co. (1926) 269 U.S. 385, 391.

73 People v. Darrah, et al. (March 10, 1986) Santa Barbara County, Santa Maria District, Municipal Court Nos. 853104, 853105. See Appendix item 1.

74 See, e.g., Nebbia v. New York (1934) 291 U.S. 502, 525.

75 It's hard for me to read that wonderful-sounding phrase without thinking of my favorite quotation about law in an unequal society such as ours: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." (Anatole France, Crainquebille (1915).)

76 California Constitution, article I, section 7, subdivision (a).

77 Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 913.

78 Plyler v. Doe (1982) 457 U.S. 202, 216-217.

79 Id. at p. 217; Butt v. California (1992) 4 Cal.4th 668, 685-686 [treating education as fundamental interest for purposes of equal protection analysis under California Constitution].

80 Wisconsin v. Yoder (1972) 406 U.S. 205, 213. See also fn. 21, above.

81 See Whitehead and Crow, Home Education: Rights and Reasons (Crossway Books, 1993), at pp. 140-159.

Discussing 21 studies, the authors conclude that "home schooled children seem to be doing quite well academically. The studies consistently show home schooled children to be performing equal to or better than their conventionally schooled peers, and this finding seems to hold regardless of the parent-teacher's educational background or certification status." (Id. at p. 159.) See also Kantrowitz and Wingert, Learning at Home: Does It Pass the Test? (Oct. 5, 1998) Newsweek at p. 66: "23 (of 36) was the average ACT score for a home schooler in 1998. Traditionally schooled kids averaged a 21. A 23 could qualify students for a 'selective' college."

82 John Holt, Teach Your Own (Dell Publishing, 1981).

83 Grace Llewellyn, The Teenage Liberation Handbook: How to Quit School and Get a Real Life and Education (Lowry House Publishers, 1998); Real Lives: Eleven Teenagers Who Don't Go to School (Lowry House Publishers, 1993).

84 John Taylor Gatto, Dumbing Us Down: The Hidden Curriculum of Compulsory Schooling (New Society Publishers, 1991).

85 David Guterson, Family Matters: Why Homeschooling Makes Sense (Harvest Books, 1993).

86 David and Micki Colfax, Homeschooling for Excellence (Warner Books, 1988).

87 CSBA BP 1621 (1987), p. (b). See Appendix item 2.

88 CDE Letter from L.P. Hartzler, Ph.D., Consultant, Alternative Education Unit, to Elizabeth C. Hamill, News Editor, Northern California Homeschool Association (July 28, 1988), p. 1. See Appendix item 3.

89 U.S. Department of Education Office of Research, State Statutory Requirements on Home Schooling (July 1988) listed three "Statutory options describing non-school setting." The third option: "Submit documents as a private school." See Appendix item 4.

90 As of Fall 1988 and Fall 1989, the "Instructions for Completion of Selected Items" at item I, "School Information," of the R-4 Private School Affidavit included the following advice with respect to the selection of "Residential Boarding" or "Day" school: "SCHOOL ACCOMMODATIONS - If yours is a home school, do not mark "Residential Boarding" unless your school furnishes residential boarding facilities for children other than your own." (Emphases in original.) See Appendix item 5.

91 EDCAL (Dec. 16, 1991), at p. 2. See Appendix item 6.

92 ICR v. Honig, et al. (S.D. Cal., January 29, 1992) Civil No. 90-0483-B-(M). See Appendix item 7.

93 Orsi, Homeschooling in California: Our Rights, Our Laws, Our Children (California Homeschool Network, 1996), at p. 6; Jones, The Private School Option, in From Chaos to Confidence 2000: Starting the HomeSchool Journey (HomeSchool Association of California, 1999), at p. 8.

94 People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 309.

95 Ibid.

96 City of Los Angeles v. Superior Court (1995) 40 Cal.App.4th 593, 603-604, fn. 12: Judicial deference is proper "only where there has been a consistent administrative construction of a statute over many years. [Citation.]" For a more detailed history and analysis of the shifting CDE policies toward homeschooling, see Orsi, "Homeschooling in California: Our Rights, Our Laws, Our Children" (California Homeschool Network, 1996), at pp. 10-14.

97 People v. Turner (1953) 121 Cal.App.2d Supp. 861; In re Shinn (1961) 195 Cal.App.2d 683.

98 121 Cal.App.2d Supp. at p. 865.

99 Id. at pp. 865-868.

100 See Shapiro v. Thompson (1969) 394 U.S. 618, 634 [strict scrutiny of state classification penalizing right to travel; id. at pp. 660-662 [dissenting opinion of Harlan, J., criticizing application of strict scrutiny to rights not explicitly stated in Constitution]; Wisconsin v. Yoder (1972) 406 U.S. 205, 233 ["when the interests of parenthood are combined with" a freedom of religion claim, state restriction can't be justified as "reasonable"].

101 121 Cal.App.2d Supp. at pp. 865-867, relying on Pierce v. Society of Sisters (1925) 268 U.S. 510, 534, and State v. Hoyt (1929) 34 N.H. 38 [146 A. 170].

102 Id. at p. 868.

103 Ibid.

104 John Holt, Reversing Turner (1983) Growing Without Schooling # 30, at pp. 17-18.

105 121 Cal.App.2d at p. 867.

106 Former section 29009.5 (now § 33190); Statutes 1967, chapter 1637, section 1. Three years later, the private school exemption was declared valid upon verification of the affidavit's filing. (Former § 12154 (now § 48222); Stats. 1970, ch. 822, § 1.) See Part 2-A, paragraph 3, above.

107 Section 48224.

108 9 Witkin, California Procedure (4th ed. 1997) Appeal, section 939, p. 979: "The relatively few opinions ordered published by [superior court] appellate department judges . . . are of debatable strength as precedents." 109 195 Cal.App.2d at p. 694.

110 Ibid., citing former section 7901 (now §§ 51210, 51220). 111 But see footnote 73 above, and accompanying discussion in Part 3-F (lower court decision declaring § 48222 unconstitutionally vague).

112 People v. Serna (1977) 71 Cal.App.3d 229.

113 Id. at p. 232.

114 Wisconsin v. Yoder (1972) 406 U.S. 205; see discussion in Part 3-B, above.

115 71 Cal.App.3d at p. 233.

116 Id. at pp. 232-233.

117 The Court of Appeal did reverse the convictions in Serna, but for another reason. (Id. at p. 233.) 118 Cassady v. Signorelli (1996) 49 Cal.App.4th 55.

119 Id. at p. 61.

120 Id. at p. 62, emphasis added. The decision did not indicate whether the mother had taken any steps to qualify her home school as exempt from the Compulsory Education Law. She apparently did not raise this argument in court, nor did she argue her constitutional right to direct her daughter's education. (The mother represented herself both at trial and on appeal, and she was a "parapsychologist," not a lawyer. (Ibid., fn. 16.)) Of course, the father - with joint custody - had the same constitutional right.

121 Roger D. Wolfertz, letter to editor, EDCAL (Feb. 3, 1992), p. 2. See Appendix item 8. As noted in Part 4- A above, the December 16, 1991 issue of EDCAL included the following statement, to which Wolfertz objected: "California law allows parents to teach their children at home if they file an affidavit with the state declaring their homes to be private schools." See Appendix item 6. See also 1990 memo from Wolfertz, at Appendix item 7 in Orsi, Homeschooling in California: Our Rights, Our Laws, Our Children (California Homeschool Network, 1996).

122 See Appendix item 9.

123 Statutes 1903, chapter 270, section 1; Statutes 1905, chapter 333, section 1. The clause at issue treated home teaching as equivalent to private schooling and tutoring: " . . . or that such child is being taught in a private school, or by a private tutor, or at home by any person capable of teaching, in such branches as are usually taught in the primary and grammar schools of this state . . . ."

124 Statutes 1919, chapter 258, section 1. This version of the law listed five categories of exemptions.

Number 3, the private school exemption, provided in its entirety as follows: "Children who are being instructed in a private full-time day school by persons capable of teaching; provided, that such school shall 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 this state; and provided, further, that the attendance of such pupils shall be kept by private school authorities in a register, such record of attendance to 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." (Italics in original.)

Number 4, the tutor exemption, provided in its entirety as follows: "Children who are being instructed, in study and recitation, for at least three hours a day for one hundred sixty days each calendar year by a private tutor or other person, in the several branches of study required to be taught in the public schools of this state, and in the English language; provided, that such tutor or other person shall be capable of teaching; and provided, further, that such instruction shall be offered between the hours of eight o'clock a.m. and four o'clock p.m." (Italics in original.)

125 Statutes 1931, chapter 1215, section 3.

126 In re Christian S. (1994) 7 Cal.4th 768, 776 [citations and internal quotation marks omitted].

127 As the CDE analysis (at p. 2) correctly notes, "there is a presumption of change when a statute is amended[.]"

 






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