Avoiding Referralsby Linda J. Conrad Jansen, Esq.
All of these cases started as a result of a referral to a governmental agency. Although some government employees oppose homeschooling, most notably in the Department of Education's Legal Counsel's office, there is no indication that there is a systematic effort by the government to prevent homeschooling. First, compliance with one of the legal ways to homeschool is crucial. Second, the following factors may result in a referral: Pulling children out of public or private school after a dispute with the school (i.e.: ongoing truancy problems); custody battles; welfare referrals; or neighborhood disputes. As long as children are healthy, happy, involved with the community, and appear to be learning and thriving, the likelihood of a referral is reduced.
What can you do if you are in one of the "high-risk" groups for referral? The most important thing to do is know your legal rights. Read Empowering Families: Starting the Homeschool Journey carefully, giving special attention to "Getting Legal," read Stephen Greenberg's article "The Legality of Private-School Homeschooling in California (May 2000), read the HSC letter "Legal Brief: The Legality of Homeschooling Using the Private School Option (Ca. Ed. Code section 48222) and read the recent case of Troxel et vir. v. Granville U.S. (No. 99-138, Argued January 12, 2000 - Decided June 5, 2000). In Troxel the Supreme Court confirmed the fundamental right of parents to the care, custody, and control of their children. The Court included a parent's fundamental right to educate his or her child in those fundamental rights, which encompasses the right to choose private or home schooling. Any regulation of that fundamental right is subject to the strict scrutiny test. After you read these articles, contact HSC Legal if you have any questions. Following are some general guidelines.
If a child is removed from public school mid-year or after continuing problems with the school, the options must be carefully considered. Although a family has the legal right to start a home-based private school, it may be in the family's best interest to consider an option that will not subject them to scrutiny, such as a public independent study program, a charter school offering homeschooling, or a private school satellite program. When choosing a private school be sure to obtain as much information about the school to determine whether it is an option likely to be accepted by your school district and what the private school will do to help you if a truancy action is threatened. If the decision is made to start a home-based private school, carefully follow all of the requirements for starting the school before removing the child from school, and immediately advise the school of the enrollment in private school on private school letterhead.
Homeschooling families involved in custody issues should be aware that under the best of circumstances, custody, control and care of children is a volatile situation. A parent must consider the wishes of the other parent before deciding to homeschool. Parents involved in acrimonious custody battles are hurting themselves and their children, and need to find a way to reach an agreement with the other parent on all issues affecting their children. Obtaining professional help early in the proceedings in the form of legal advise, mediation and/or evaluation by a family counselor can be invaluable if there is any possibility of a disagreement. As an attorney handling family law cases and juvenile dependency cases, I saw children suffer because both parents put their own needs for control ahead of their children's welfare.
Under a new California law, welfare parents can be denied benefits if children are truant. Therefore, homeschooling parents in this situation may also with to consider alternatives to starting a home-based private school, such as a charter school or independent study programs. The advantage of public programs for a parent with limited financial resources is that money or materials may be available to assist the family's educational needs. The disadvantage is that the parent may lose some control over the educational process. Again, parents receiving public assistance are absolutely entitled to start a home-based private school, but must be extremely careful to follow the law when setting up the school because it is likely that the school will be subject to scrutiny.
Referrals made by neighbors, family members or community members are difficult to anticipate. Homeschooling families are subject to the scrutiny of their community and can best avoid referrals by educating their family, friends and neighbors about the benefits of homeschooling and the educational progress homeschooled children are making. A homeschooling child's example to the community is one of the greatest strengths of homeschooling. At the same time, homeschoolers are encouraged to support all of the educational opportunities available, including the progress and opportunities available in the public schools, the private school options, tutoring, charter schools and the various homeschooling programs, keeping in mind that homeschooling is not for everyone. With actions and words homeschoolers can show the larger educational community that while our methods are different, our goals are the sameñthe education of children to be happy, healthy and successful members of our communities.Know Your Legal Options and Rights
In certain situations, an investigation cannot be avoided, and the commencement of an action against a homeschooler cannot be construed as an indication that the homeschooling family did not comply with the law, had a problem that caused the investigation, or that the government is "against" homeschooling. When the government challenges independent homeschoolers it generally relies on two California cases that are not good precedent. Since the cases were decided, the United States Supreme Court ruled that parents have a fundamental right to educate their children and any governmental regulation is subject to strict scrutiny. That means that there must be a compelling state interest for the regulation. The legal authorities for independent homeschooling using an R-4 are overwhelming.
As soon as a homeschool family receives notice of a truancy referral or is deniedwelfare benefits based on a truancy allegation, a copy of the R-4 and a verification of enrollment and attendance in private school should be provided to the agency. Under most circumstances, no additional school records or information should be given to the agencies. Contact HSC Legal (or 1-888-HSC-4440) immediately for assistance. HSC may contact the investigative agency, write a letter on behalf of the homeschooler, provide a referral to an attorney or give other appropriate assistance. Most of these cases can be handled quickly and easily at the first contact, but become more complicated if not handled effectively at the beginning.
CPS Investigations begin with a referral. Educational neglect cannot be a basis for an investigation and police officers and CPS workers cannot enter your home without awarrant. If an investigation is suspected, an experienced juvenile dependency attorneyand HSC Legal should be contacted immediately. Families can protect themselves by documenting their daily activities and obtaining medical and psychological evaluations of their children. Keep in mind that court cases depend on competent and credible legal evidence. Providing these reports to CPS investigators, with a letter stating that they do not need to see the children since the medical and psychological evaluations show that the children are safe, may alleviate the agency's concerns and prevent further investigations. Do not let any CPS or Police Officer into your home or let them interview your children without a warrant. If they do speak to the children over your objection and without a warrant, they may be subject to civil penalties. The only exception to this rule is if it is alleged that the children are in eminent danger of physical or psychological harm.How Can HSC Help?
Although HSC is not a pre-paid legal service or a guarantor of legal fees for homeschoolers, it can provide substantial legal help in the form of research, referral to attorneys and experts, information to attorneys and experts, and contact with the investigating agencies on behalf of homeschoolers. HSC has a long-standing legal fund and the ability to raise funds as needed for legal issues that might affect the rights of all homeschoolers. HSC maintains a calm and carefully considered rational approach to these cases and uses legal research, argument and negotiation before resorting to more drastic alternatives. Truancy cases may result in a limitation to the right to homeschool if they are not handled correctly. Therefore it is imperative that homeschoolers proceed cautiously.What can our members do?
First and foremost, homeschoolers do not need to be alarmed. Homeschoolers statewide are not having any problems with filing R-4s with their counties or the California Department of Education. CPS contacts with homeschoolers are rare and usually involve allegations not related to homeschooling. CPS cannot legally investigate educational neglect. A thorough investigation of any information received and a calm and rational approach to the existing problems will result in effective action.
Truancy and CPS cases are very distressing for the families involved and several HSC members have asked how they can help. Members can donate to the long-standingHSC legal fund . HSC carefully monitors legal cases and determines to what extent our financial help will be needed and useful.
Homeschooling our children is an effective form of activism. Homeschoolers show byexample what a great option homeschooling is for educating and socializing children. Network and educate non-homeschoolers about the benefits of homeschooling. Show them that we are not the radical fringe, but are their friends, neighbors and co-workers.
Contacting government officials by large numbers of homeschoolers has not been found to be an effective way to deal with pending truancy or juvenile dependency cases, and has in fact been prejudicial and harmful to the families involved. Threats made to government officials can actually backfire and cause media problems when the threats are made public. It is important that homeschoolers recognize that government officials are generally people who care deeply about their work, and are motivated by a desire to help children. The most effective negotiation is to recognize our common ground and reach for solutions that will meet all of our needs.
Some members have asked about Pre-paid Legal Services. The decision to use a pre-paid legal service is an important personal decision and each member should obtain sufficient information to make an informed decision. Factors to consider are the cost, the likelihood that legal help will be needed, other alternatives, the services that are covered, other legal agendas the organization may have, and the attorneys offering the services. Please contact me if you are interested in more information.
This article was originally printed in California HomeSchooler August 2000.
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