Gov. Schwarzenegger Promises Reprieve to California Homeschoolers


[Editor's note: Updated information can be found in our March 13 article, "California Superintendent: Parents Have Right To Homeschool." --D.N.]

Extra Credit
'Depublishing' the Court's Opinion

Rather than seeking legislative relief, homeschool advocacy group the Home School Legal Defense Association is seeking to "depublish" the California Court of Appeals ruling in in the case of re Rachel L. et al. with a petition. At the time of this writing, the petition had more than 160,000 online signatures.

More Information

--D. Nagel

In late February, California's Second District Court of Appeals issued a ruling that effectively banned every form of homeschooling in the state--whether coordinated through a public school district, combined with online schooling, or otherwise administered in a way that does not include full-time, in-person instruction from a credentialed teacher. It was a ruling with widespread implications for every homeschooling parent in the state, and one that is now being challenged on two fronts: by homeschool advocates and by California Governor Arnold Schwarzenegger himself.

The Feb. 28 ruling came as a surprise to most, as it was part of a confidential child welfare case. (You can read more on the case in the opinion published by the court here. SF Gate, an online publication of the San Francisco Chronicle, also provides background on the case and comments from one of the defendants here.) But the implications are far-reaching for the parents of more than 160,000 kids who are currently homeschooled in the state.

"The court's ruling is a sweeping one that affects all parents in California," said Michael P. Donnelly, staff counsel for the Home School Legal Defense Association (HSLDA), a homeschool advocacy group. "It is unfortunate and not an accurate reflection of California law regarding private education of children." HSLDA was not part of the legal proceedings that resulted in the decision.

HSLDA isn't the alone in condemning the decision. In a recent statement issued by the Office of the Governor late Friday, Gov. Schwarzenegger said, "Every California child deserves a quality education, and parents should have the right to decide what's best for their children. Parents should not be penalized for acting in the best interests of their children's education. This outrageous ruling must be overturned by the courts, and, if the courts don't protect parents' rights, then, as elected officials, we will."

HSLDA is also looking for a judicial solution to the issue. "HSLDA is not looking for a legislative solution at this point," Donnelly told THE Journal this weekend. "We believe that this issue can most properly be addressed in the courts. We expect that the court system will resolve this problem."

In order to accelerate judicial action, HSLDA has launched an online petition drive to "depublish" the opinion issued by the Court of Appeals. As of this writing, more than 160,000 electronic signatures had been collected for that petition.

"We are encouraging all homeschoolers and anyone who wants to support parental rights and educational freedom to sign a petition on our [Web site] that calls for the depublishing of the opinion," Donnelly said. "This is a proper procedure in [California] that would essentially confine the ruling of this case to the factual circumstances and prevent the case from being used as precedent in other courts in the State."

But not everyone thinks the ruling is a bad one. In an article in SF Gate Friday, Lloyd Porter of the California Teachers Association was quoted as saying, "We're happy. We always think students should be taught by credentialed teachers, no matter what the setting."

However, the wording in the Court of Appeals opinion, issued by Judge H. Walter Croskey, suggests that a teaching credential alone isn't enough. Credentialed teachers participate in homeschool programs through public school districts, and virtual schools also use credentialed teachers. The crux of this part of the issue is that homeschooled students participating in these programs are not seeing these credentialed teachers in person on a full-time basis. And therefore they're truant.

Said HSLDA's Donnelly: "This ruling requires that children attend a full-time day school or public school or be instructed by a certified teacher as a private tutor full-time.... [T]he logic of the ruling suggests that children enrolled in virtual or distance learning programs (either public or private) for the purpose of satisfying compulsory attendance laws would be truant."

According to the court's published opinion, "It is clear to us that enrollment and attendance in a public full-time day school is required by California law for minor children unless (1) the child is enrolled in a private full-time day school and actually attends that private school, (2) the child is tutored by a person holding a valid state teaching credential for the grade being taught, or (3) one of the other few statutory exemptions to compulsory public school attendance (Ed. Code, § 48220 et seq.) applies to the child."

According to the court, enrolling students in a school program while a non-credentialed parent teaches them is a "ruse."

Should the ruling stand as written, the consequences could be dire for homeschoolers and attending online or virtual schools.

"Because parents have a legal duty to see to their children’s schooling within the provisions of these laws, parents who fail to do so may be subject to a criminal complaint against them, found guilty of an infraction, and subject to imposition of fines or an order to complete a parent education and counseling program," the court wrote. "Additionally, the parents are subject to being ordered to enroll their children in an appropriate school or education program and provide proof of enrollment to the court, and willful failure to comply with such an order may be punished by a fine for civil contempt."

Continued failure to comply could result in even worse consequences, including parents losing their "control over a dependent child," should a juvenile court deem such an action is "necessary to protect the child."

HSLDA's Donnelly, for his part, said he sees this as a serious situation, but his group is awaiting further developments before altering its advice to its members. "Our advice to our members is that nothing has changed with regard to their homeschools. Because the ruling is not final and is being appealed, any enforcement action will be delayed. Furthermore, given that the governor has come out against this decision, it is likely that, even if the ruling became final, there would be some delay in enforcement until a solution was achieved. However, this is a serious situation and it is difficult to predict what will happen in any given school district. School districts are responsible for prosecuting truancy."

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About the author: David Nagel is the executive editor for 1105 Media's online education technology publications, including THE Journal and Campus Technology. He can be reached at [email protected].

Proposals for articles and tips for news stories, as well as questions and comments about this publication, should be submitted to David Nagel, executive editor, at [email protected].

About the Author

David Nagel is the former editorial director of 1105 Media's Education Group and editor-in-chief of THE Journal, STEAM Universe, and Spaces4Learning. A 30-year publishing veteran, Nagel has led or contributed to dozens of technology, art, marketing, media, and business publications.

He can be reached at [email protected]. You can also connect with him on LinkedIn at .