Homeschoolers Win!
On August 8, the California Court of Appeal for the Second Appellate
District ruled that homeschooling is indeed a legal option in
California. This was a reversal of a ruling in February of this year
that parents must hold a teaching credential to homeschool their
children, and confirms HSC’s long held interpretation of private
school laws.
California’s three largest homeschool organizations, Homeschool
Association of California, California Homeschool Network, and
Christian Home Education Association, joined together in filing an
amicus brief with the court to support our homeschooling rights.
According to HSC’s legal co-chair, Debbie Schwarzer, "They did the
right thing. They did their job. They carefully read everything (they
don't cite the HSC/CHN/CHEA brief, but believe me, much of what they
write is based on our arguments), and reached the legally correct
conclusions."
This outcome is truly a victory for all homeschoolers in the state.
HSC wants to extend it’s appreciation not only to our wonderful legal
team, but also to the law firm of Wilson, Sonsini, Goodrich & Rosati
who donated their expertise, and to each and every one of our members.
Your membership dollars go to help in situations just like this. Many
of you also sent additional fund, wrote, called, and visited your
lawmakers. Each and every one of those actions helped us to reach this
wonderful outcome. Thank you so much for your support during this
difficult time.
Rehearing in homeschooling case
On Monday, June 23, the Court of Appeal in Los Angeles held oral arguments for the rehearing in the In re Rachel L homeschooling/abuse case in California. I flew down for it along with HSC's lawyers from Wilson, Sonsini, Goodrich & Rosati. Elizabeth Bryant, HSC's legal co-chair, did all the driving in crazy LA traffic, and Leslie Buchanan, HSC's president, came to listen. Karen Taylor of CHN was there, as was CHN's counsel (who's really an HSC legal volunteer, Jerry Salcido). CHEA's representative couldn't come, but their counsel was there. HSLDA came as did the man who worked with me on the brief about the history and efficacy of homeschooling that was filed on behalf of several schools, advocacy groups and businesses such as AtoZHomescool and Diane Flynn Keith. There was a reporter there from the LA Times, but very few people who looked like regular members of the public (security was VERY tight). The court did not permit any TV cameras to show up.
The arguments were long (two and a half hours in a hot courtroom) and thorough. The judges asked lots of questions, with some consistent themes. As soon as you thought you had one judge pegged as to how he or she was thinking, he or she would ask another question that made you wonder about your prior conclusion. They were reasonably generous about letting people finish their presentations or points even if they ran over a little on time.
Some of the attorneys presenting made wonderful arguments that we loved. Others were potentially damaging. Most of the folks on our side did a really good job. One woman from Munger Tolles, who represented CHEA in our joint brief, made a presentation on behalf of all three groups and did very well.
It is absolutely impossible to predict how the court will rule on this -- whether it will be narrow, sweeping, or something entirely different, and we don't want to feed any rumor mill. It's just too hard to read those tea leaves, although I am sure some people will try.
They have 90 days to do something, which means we should expect a ruling by late September. All three of the big groups will, of course, coordinate to make sure we give consistent advice about how to homeschool come fall, and will work together after the ruling comes out should any change in advice be necessary. If the ruling goes against us, our pro bono firms have assured us that they're in it for the long haul and will be with us every step of the way.
As before, we encourage everyone to keep on doing what they've been doing, to keep showing the world a positive image of homeschooling, to educate their friends and neighbors about homeschooling, and to stay informed.
If you have any questions, please don't hesitate to write me.
Debbie Schwarzer
HSC Legal Co-Chair
Briefs Are Filed for the In re Rachel Court Case
Hear Details in Audio Interview with Debbie Schwarzer
All of the briefs in the In re Rachel L case have been filed, and now the court is reading through everything. Amicus briefs were filed by a number of different groups, and the court appeared to accept most or all of them. HSC filed a joint brief with CHN and CHEA talking about a number of legal points, including statutory interpretation and constitutional arguments about the rights of parents.
Briefs were filed by other groups, ranging from private schools serving homeschoolers and entities providing information and services to homeschoolers to professors of constitutional law to various members of the House of Representatives to religious organizations and conservative groups. Their briefs mostly talked about religious and other parental constitutional rights and about the factual background of homeschooling (showing that homeschooled children succeed in college and life). The Governor filed a brief supporting homeschooling and the CDE filed one supporting home-based private schools. The California Teachers Association and LA Unified also filed briefs mostly telling the court they agreed with the original opinion.
The court will hold oral arguments on Monday, June 23. The court has told amicus parties and their lawyers that they are welcome to attend the hearing, so Leslie Buchanan, Debbie Schwarzer and their lawyers from Wilson, Sonsini, Goodrich & Rosati are planning on being there.
Debbie recently did a phone interview with Mary Nix about the current status of the case. It's long, about 30 minutes, but if you're really interested about the positions that various parties are taking, you might want to listen to it. You can find it at http://www.tiprr.com/blog/?p=90
Joint Brief by Organizations Accepted for
Consideration by California Court of Appeal
A joint brief flied by California's three statewide homeschool organiztions has been accepted for consideration by the California Court of Appeal in the case known as In re Rachel L. The court's original decision specifie, amoung other things, that parents need a teaching credential to homeschool. The decision was criticized by homeschoolers, teachers and government officials. Governor Arnold Schwarzenegger and Superintendent of Public Instruction Jack O'connell both issued press releases in support of homeschooling, and Assemblyman Joel Anderson introduced a resolution supporting homeschooling to the California Assembly in response to the case. The court granted rehearing and vacated it's original decision in March 2008. California's three statewide homeschool member organizations -- Homeschool Association of California, California Homeschool Network, and Christian Home Educators Association of California -- have been working together for several months in a united effort to preserve independent homeschooling in California. These three organizations represent homeschoolers across the state. Their amicus brief was a cooperative undertaing of the law firms Wilson Sonsini Goodrich & Rosati, representing HSC, Baker & Mckenzin, representing CHN, and Munger Tolles & Olson LLP, representing CHEA.
Summary of the Case, "In re Rachel L. et al"
In February 2008, an appellate court in Los Angeles issued a decision
that interpreted California's education laws in a way that was very
unfavorable to homeschoolers.
Unlike many states, California does not have any laws specifically
authorizing or regulating homeschooling. Like several other states
whose laws do not mention homeschooling, California does have laws
that say that children can meet the state's compulsory attendance laws
by going to private schools. Homeschoolers in California, like
homeschoolers in those other states, complied with the compulsory
attendance laws by enrolling their children in private schools that
permitted teaching at home, and these schools could be ones operated
by third parties or ones established by the parents themselves for
their own children.
This manner of homeschooling was not, as many in the press have
portrayed it, a "loophole". California law does not have many
regulations pertaining to private schools, and the ones that it does
have can be met by parents forming their own schools and by schools
that support homeschooling. The state's Superintendent of Public
Instruction, Jack O'Connell, was aware of this interpretation of law,
and agreed that it was permissible.
The appellate court, however, stated in its February opinion that it
did not believe that private schools could permit homeschooling. The
judges seemed to think that the state legislature had clearly thought
about homeschooling when it passed the private school laws and had
decided that the only way to teach children at home was under a
separate statute about tutoring, which requires a state teaching
credential. The court, of course, could not change a law or pass a
new law; only the legislature could do that. But it was interpreting
the law in an unfavorable way.
The Governor, the Superintendent of Public Instruction and all of the
statewide homeschool support groups have gone on record as stating
that the court's interpretation was incorrect. The statewide groups
were preparing to appeal to the state Supreme Court for help in
rectifying the situation, but in late March, the appellate court
decided to rehear the case itself.
By court rules, whenever a court agrees to rehear a case, the opinion
that it wrote the first time around is vacated, and of no further
force or effect. What that means is that the original decision with
its unfavorable interpretation of law has gone away, and no judge or
government official will be able to take action using that opinion as
authority. State law about homeschooling is now exactly the same as
it was prior to the issuance of the February opinion. The Governor,
the Superintendent of Public Instruction and the various statewide
homeschool groups believe that the interpretation prior to that
decision was legally correct, and homeschoolers can continue to teach
their children at home in reliance on the law as previously understood.
The appellate court will hold a new hearing on the matter this summer.
All of the statewide groups are, with the assistance of pro bono
counsel, filing amicus briefs in support of the prior interpretation
of law. A new decision is expected this fall.
We believe that the legislature is waiting to see what happens in the
court system before taking any action. It is quite probable that if
the court's new decision does not change the interpretation of law
that was in place prior to its original decision, the legislature will
not take any action, as the Governor and the Superintendent of Public
Instruction are both accepting and even supportive of that interpretation.
Debbie Schwarzer
Co-chair Legal Team
Legislative Chair
HomeSchool Association of California
Update 4/20/08
You haven't heard a lot from the Board or legal team recently about the case in Southern California since the court agreed to rehear the case. Since their original decision was automatically vacated by court rule, we no longer had to worry about all the statements in that opinion. While it's theoretically possible that the court will read all the new briefs and listen to the new arguments and issue the same opinion again, we sort of doubt that will happen here. What the court will decide, no one knows, but at least this time we have a chance to be heard.
We can't talk a lot about our strategy, but all of the big statewide groups are busy working on amicus briefs. These are due by mid-May. After we file ours, we get to read all of the ones that others have filed, and we will have an opportunity to file reply briefs that argue against points in those other briefs. The court had said that the hearing would be put on the June calendar, so we're expecting that. We don't know if the hearing will be open to the public, but if it is, those who are interested in the legal process and who can get to LA might find it interesting. Courts can take several months to reach a decision and write a new opinion after the hearing, so it will probably be fall before we hear more.
ACR 115, Joel Anderson's resolution in support of homeschooling, is still alive. It has been assigned to the Assembly Education Committee. Right now, the committee is busy dealing with all of the bills that have a fiscal impact, as there is a firm deadline for either sending those to the full floor or killing them. The author's office thinks that a hearing on ACR 115 will be scheduled some time in the weeks after that April 18 deadline. We have asked if the author would like for homeschoolers to attend the committee hearing, and have not yet heard back. But if the author does want people to attend, we will be asking those who can come to Sacramento to do so (with their reasonably well-scrubbed and well-behaved children, of course). Some people in Sacramento seem to think that we don't need ACR 115 any more given the rehearing, but we have been working hard to tell folks there that we still do, that it is still a good thing for the legislature to go on record supporting homeschooling!
The mood in the capitol has changed a lot since the rehearing was granted. Debbie Schwarzer and Karen Taylor of CHN spent a day lobbying the Assembly Education Committee members right before it was granted, and everyone was very, very tense. On April 14, Debbie and Leslie Buchanan, HSC's President, spent the day lobbying the Senate Education Committee members, and the mood was palpably different. We mostly got words of support, everyone was calm, no one was talking about rushing legislation through. Thanks to all of you who have helped get the word to your representatives that no legislation was needed, other than supporting ACR 115.
California Based Homeschool Groups Stand Together to Defend Rights After Recent California Appellate Court Decision
Sacramento, California, March 26, 2008- A far reaching court ruling that could effect as many as 200,000 homeschooled children in California has families concerned that continuing to educate their children at home is now illegal. State and local support groups have been busy answering calls from the media and reassuring parents. The ruling filed on February 28th by the 2nd District Court of Appeal essentially said that the only types of schooling that were legal in California were full-time attendance in a brick & mortar institution or being taught full time by a credentialed tutor.
JOINT STATEMENT REGARDING HOMESCHOOLING IN CALIFORNIA
Update RE Appellate Court Ruling - 3/27/08
HSC has received word that the 2nd appellate court will be re-hearing the case that would have made it illegal to homeschool without a teaching credential.
We understand a new hearing will be held in June. HSC's pro bono counsel, as well as pro bono counsel for several other inclusive California homeschooling groups, will be seeking approval to file amicus briefs in this matter. This is standard court procedure to ensure that the court only has to deal with briefs from counse representing groups with a large enough interest in the case. Since the court's prior opinion was vacated when the court granted the rehearing, meaning it has no legal effect, you should keep homeschooling as you have been. It will be months before we will see another ruling in this case, but we will keep you updated.
We understand a new hearing will be held in June. HSC's pro bono counsel, as well as pro bono counsel for several other inclusive California homeschooling groups, will be seeking approval to file amicus briefs in this matter. This is standard court procedure to ensure that the court only has to deal with briefs from counse representing groups with a large enough interest in the case. Since the court's prior opinion was vacated when the court granted the rehearing, meaning it has no legal effect, you should keep homeschooling as you have been. It will be months before we will see another ruling in this case, but we will keep you updated.
Calling for Volunteers - HSC is looking for volunteers willing to write letters, make phone call, visit state congressmen, etc. If you think you can help even in some small way please email
Call for Letter-to-the-editor Writing Campaign, by Debbie Schwarzer, legal co-chair 3/14/08
As many of you know, the newspapers are starting to publish, probably in response to Jack O'Connell's press release and the Governor's comments, editorials saying that homeschooling might be OK but more oversight is required. Yesterday, editorials in two of California's largest newspapers, the Los Angeles Times and the San Jose Mercury News, have called for increased oversight of the state's homeschoolers:
Why Letters To The Editor Are So Urgent, by HSC Board of Directors 3/14/08
The La Times, and The San Jose Mercury News are obviously major newspapers. And when we listened to callers to the radio show that our president Leslie did we heard the thread of homeschooling is wonderful, BUT... It seems like so much of the non-homeschoolering public feels that we need more regulation and oversight. This is a real danger. We, homeschoolers, all know that we would lose much of the magic of homeschooling if we had to follow someone else's mandates. Even those of us using a charter school or public ISP, know that if ever the school's requirements become such that they are no longer filling our child's needs, we can also opt to start our own private school. Obviously this option to homeschool in California without outside regulation needs to be kept untainted for all homeschoolers. We, on the board of directors, are inspired daily by the way the homeschooling community has pulled together. We homeschoolers, are a tough group, of conscientious people, determined to do right by our children. Let's stand up and let them all know we're here, we're successful, we're not some fringe group, and we are not going to go along quietly with any call to limit our ability to fulfill the particular needs our children. And really that's what it's all about, being able to recognize that our children are individuals, and we know we are best able to fulfill their needs. We're with them everyday, that makes us the "experts".
SCHOOLS CHIEF JACK O'CONNELL ISSUES STATEMENT
REGARDING HOME SCHOOLING IN CALIFORNIA
3/11/08
SACRAMENTO - State Superintendent of Public Instruction Jack
O'Connell announced today that the California Department of Education
has completed a legal review of the February 28 California Court of
Appeal ruling regarding home schooling. O'Connell issued the following
statement:
"I have reviewed this case, and I want to assure parents
that chose to home school that California Department of Education policy
will not change in any way as a result of this ruling. Parents still
have the right to home school in our state.
Assembly Resolution ACR 115, By Debbie Schwarzer, HSC Legal Team Co-Chair 3/10/08
To avoid another firestorm like we had with the HSLDA petition, I
wanted to get this information in front of you, and HSC's position on
it, right away. I have discussed this with Leslie Buchanan, HSC's
President, and she agrees with this message. She and I would like you
to forward this to any groups that might be helpful.
Good News Update, by Debbie Schwarzer 3/8/08
I am thrilled to announce that we have been offered help by two of the best law firms in the state (and country). The firms will be helping us on a pro bono basis. That means they will donate (very expensive) attorney time to help us figure out the best strategies for dealing with the court issues, and they will help us prepare and file the letters and briefs that we need.
What Can You Do?, by Christina Sonas
Some things you could do:
-- Write a letter to the editor to your regional paper (not all local
papers have picked up the story yet, but the LA Times, SJ Mercury News
and SF Chronicle all have; I don't see it at the Sacramento Bee yet)
-- Write an opinion essay on the controversy for publication somewhere.
-- Be proactive in communicating with your friends, family and
colleagues; make sure they hear the pro-homeschooling story FIRST.
-- Make a donation to one or more of the legal teams preparing the
official strategic action.
-- Make a proud, flaunting display of your homeschooler status, like a
bumper sticker, tshirts, etc.
Appellate Court Case, Please Remain Calm, By Debbie Schwarzer HSC legal team co-chair 3/07/08
I have been astonished about the hype about this case. So many have been making sensational claims that parents will be criminally prosecuted, etc.
Please rest assured about a number of things. First, the law, other than this court's interpretation, hasn't changed. Parents involved in a truancy prosecution might face criminal charges, but only after a rather lengthy series of hearings and court orders, and only if the parents failed to comply with the orders. It would be a criminal contempt charge, which isn't nothing but doesn't land you in Pelican Bay.
Recent California Appellate Court Decision
Many of you are aware that an appellate court decision came out on February 28, 2008 that potentially affects homeschooling.