The California Homeschooling Situation

Okay so most everyone has heard of the recent California Appellate Court ruling in In re Rachel L. that has seemingly outlawed homeschooling in California. I have been asked to write an 1800 word article about it for Liberty magazine.

To those ends, I have been doing a lot of reading, mostly of the original decision, but I have been reading opinions by the Home School Legal Defense Association, the CA Superintendent of Public Instruction, etc.

One intelligent blogger, Mr Timothy Power at Sometimes I'm Actually Coherent, has commented on the situation in several posts, That Court Case, Homeschooling & Constitutional Rights, A Trio of Powerful Allies, and I'm Not So Sure I Like Where This Is Heading...

In A Trio of Powerful Allies Mr. Power commented:

After some initial shock on my part, I took the time to familiarize myself with the ruling and the facts of the case, and I've become a bit more sanguine about the situation. The ruling still appears to be pretty sour on homeschooling in general. However, I didn't actually see anything in the ruling that changed the system homeschoolers operate under. Under state law, private schools are not required to have their teachers credentialed. So if parents follow the laws to establish private schools--with themselves as teachers and administrators, and their kids as the students, they're fine. The ruling said this arrangement probably wasn't what the legislature intended; but it didn't explicitly go on to ban the practice.

Later, in I'm Not Sure I Like Where This Is Going... Mr. Power continues in the same line of reasoning:

Through this all I've been much more sanguine about the meaning of the In Re: Rachel L. ruling than many. To this day I read in newspapers and on the sites of other bloggers that the ruling "outlawed the practice of Homeschooling by parents not possessing Teachers' credentials", which is absolutely not the case. This misconception is very widespread, by people on both sides of the issue.

[...]

Now, after reading the decision myself, I'll say it's certainly possible that this is what the court intended to say; but that's not what the actual text comes out saying, when taken in context with the applicable laws. And as I mentioned above, the State Superintendent had a legal review done and concluded that the ruling did not outlaw homeschooling by uncredentialed parents.

Now, I want Mr. Power to be correct. He is certainly a smarter guy than I am, IMO. (I console myself with the fact that I am much better looking.) Even though I teach both in the K12 public school system and the Community College system, I plan on homeschooling my children.

However, I believe Mr. Power, and others have misunderstood what the CA Appellate Court said. For example, I believe the California Department of Education got the intention of the Appellate Court wrong.

In a careful reading of the Rachel L. case, the Court appears clear that it understood the intent of Legislature was not to allow homeschooling via registering the home as a private school. In dealing with case under review, the Appellate Court cites and applies the Turner case in rejecting the notion of parents registering their home school under the private school option in the CA Ed Code. The Rachel L. Court decision states:

Additionally, the Turner court rejected, and noted that courts in other states had also rejected, the notion that parents instructing their children at home come within the private full-time day school exemption in then section 16624 (now section 48222). The court stated that a simple reading of the statutes governing private schools and home instruction by private tutors shows the Legislature intended to distinguish the two, for if a private school includes a parent or private tutor instructing a child at home, there would be no purpose in writing separate legislation for private instruction at home. (Turner, supra, 121 Cal.App.2d Supp. at p. 868; accord Shinn, supra, 195 Cal.App.2d at p. 693.) (Bold supplied.)

After rejected the notion parents utilizing the private school option in order to homeschool, the Court continued to say the parents in Rachel L. didn't even meet this option anyhow. The enrolled their children in Sunland Christian School's independent study program, which is only permitted for public schools by the California Ed. Code.

The Rachel L. Court continued:

Moreover, even if being taught at a parent’s home could be construed as attendance at a private day school, the parents in Turner had not demonstrated that their home already qualified as a private school under the requirements of the Education Code. (Turner, at p. 869.) (Bold supplied.)

Earlier in the Rachel L. Court's discussion of the Turner case, it became obvious it considered a private full-time day school to be in contrast to a "private school" home school option. The Court rejected the parents attempt to homeschool via enrolling in Sunland Christian School's independent study program, which the Court strongly negatively referred to as a "ruse."

Such representation does not constitute a statement that the Los Angeles Unified School District and the Los Angeles County Office of Education knowingly gave their stamp of approval to children being deprived of an education in a public or private full-time day school setting, or by a credentialed tutor, through the ruse of enrolling them in a private school and then letting them stay home and be taught by a non-credentialed parent. (Bold supplied.)

Throughout the Court's decision, it kept comparing and contrasting children going to a full-time day school that was either public or private where the child actually attends vs. parents keep the child at home at tutor them themselves.Where the Court goes after this is hard to say. The Court's discussion was a bit hard to follow, but its intent in its published opinion becomes clear with a careful reading.

Mr. Power also commented that:

The court issues a broad decision whose language goes far beyond the needs of the immediate litigants--making sweeping statements about the intent of the legislature and appearing, at first glance, to outlaw homeschooling by uncredentialed parents.

While I am sure Mr. Power knew this (but didn't say it for space considerations), the Appellate Court in Rachel L. did not itself make sweeping statements about the intent of the CA Legislature, but cited the statements of the court in the Turner case, as well as in other cases referenced in Turner.

The Court regarded itself as not making a new decision in this instance, but agree with prior courts' decisions Pierce, Turner, Shinn, Yoder, etc (many of which are cases decided by the U.S. Supreme Court) about compulsory education and homeschooling. The Rachel L. Court did not believe that it was outlawing homeschooling under the CA Constitution, but that homeschooling was not within the intent of CA Legislature in the CA Ed. Code, other Court cases clarified that homeschooling was unconstitutional, and the Rachel L. Court applied these prior decisions to the case at hand.

While I respect Mr. Power and want him to be right, it does not appear that is the case.