In Re: Rachel L.
March 5, 2008:
Recent court action in California affecting the legality of homeschooling and distance learning of any kind (for families subject to CA education code) began as a dependency case with a family who were not, perhaps, what we would want as a homeschool test case... but when the attorneys for the youngest children insisted that they be sent to public school, the parents claimed both a constitutional right to homeschool on religious grounds and that the private school independent study program (ISP) in which the children were enrolled provided a legal exemption from public school attendance. The trial court judge accepted the constitutional argument, even though it's not a very strong one. The appeals court did not. It reversed on the constitutional argument and remanded the case back to the trial court for a hearing on whether the private independent study program in which the family's children were enrolled met the requirements for an exemption from the compulsory attendance laws. The court, however, made it pretty clear that they did not think the ISP would or could qualify for the exemption. Whether what they said is binding on the lower court or whether it is dicta (extra legal stuff) that was beyond the scope of the case, we don't know, but we do know that the appellate court badly misinterpreted the California educational code.
The interpretation essentially said that the only types of schooling that were legal in CA were full-time attendance in a brick & mortar institution or being taught full time somewhere (home, wherever) by a full-time credentialed tutor. This means that ALL educational alternatives could be construed as illegal, from homeschooling to distance learning to ISPs and possibly even public charter home study programs.
As you can imagine, this has not gone over well with the homeschooling community. The major state advocacy groups -- HomeSchool Association of CA (HSC), California Homeschool Network (CHN), Christian Home Educators Association of CA (CHEA), and Family Protection Ministries (FPM, PO Box 730 Lincoln, CA 95648-0730) -- together with Home School Legal Defense Association (HSLDA), have been working on strategies to address this matter. On our side, we have attorney Debbie Schwarzer representing HSC (and Gifted Homeschoolers Forum (GHF), as she sits on the board), with assistance from GHF, Homefires, A to Z Home's Cool, and others, We have also been in contact with folks from Stanford University's Online High School, California Virtual Academies (CAVA) (a large online public charter home study program), and others, to let them know that this could impact them.
At the present time, it is recommended that California homeschoolers not change anything they are doing, just remain informed, support the groups who are handling this for you, and don't panic. When and if the time comes that public support needs to be rallied, we'll let you know.
We appreciate your patience and support.
Corin Barsily Goodwin, Director, and Debbie Schwarzer, Legal Chair
Gifted Homeschoolers Forum
http://giftedhomeschoolers.org
From Debbie Schwarzer to HSC & GHF email lists:
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.
We have never known conscientious parents ever to be prosecuted under truancy laws to the point of contempt charges. It's highly unlikely.
The media also appear to be saying that no one can teach their children without a credential. I am not certain that the holding is that broad, and I also doubt it would survive legal challenge.
The holding really applied to private ISPs (there are persistent mistatements, that began with fact statements in the case, that the family was enrolled in a charter. Obviously a school with the name "Christian" in it wouldn't be a public charter. It was a private ISP). It could be read by someone reading broadly as applying to any situation where the child is not continuously in the presence of a credentialed teacher.
The court started on a very slippery path of appearing to think that some situations were OK and others weren't, effectively trying to enact an entire code of regulations for governing this situation from the bench. He hasn't been given the constitutional authority, of course, to do this.
How do we get rid of this case?
There are a number of paths. One is seeking actual review by the Supreme Court. HSC and at least several of the other major groups' legal teams aren't in favor of that. Even if you could get the court to accept your petition (they only take 3-5% of cases), the chances that it will be decided the way you want aren't real good. It's a very dangerous road to take, because if the Supreme Court were to affirm the appellate court ruling on either of the main points (constitutional or statutory), there aren't many options left. The constitutional argument, of course, could be appealed to the US Supreme Court, but the statutory case about the proper interpretation of the California Education Code could not. California Supreme Court is the last stop on that road. If that happens, then you have two bad choices that I'll discuss below.
There is another much easier choice, and it's the one we want, as well as the one being trumpeted in the HSLDA petition. You ask the California Supreme Court to depublish the opinion, or, in other words, have them say that while this might have been the right result in this particular case involving this particular set of facts, the court finds that the reach of the opinion is overbroad and should not become law for the entire state. That is the choice we all (meaning HSC and, I believe, the other groups) want.
You get this by filing a letter with the Supreme Court in compliance with the applicable rules of court. While anyone can file one by stating their interest, we DO NOT think it is an appropriate use of grassroots activism. We DO NOT want every HSC member or HSLDA member or grandmother or irate citizen dashing off their letters to the Supreme Court. There are sober, measured, legal arguments to make about why depublication is appropriate, and those arguments are made after researching the applicable standards, etc. The Supreme Court will not be swayed positively by public outcry. In fact, it could backfire, and backfire badly.
If the Supreme Court affirms on the statutory points, then the two bad choices are to either seek legislation or to do nothing and hope that a further case is brought that can involve a better set of facts and better explanation of the issues (and reaching a better result). Both are very dangerous. Legislation isn't the answer because of the extraordinary strength of the teachers' union. It is unlikely we will see any legislation ultimately pass that gives us the freedom we have today. And the second choice is dangerous. I know lots of families that would make terrific test case defendants -- they're conscientious, they actually get their kids educated, they follow the laws. But we don't get to pick who the family is. As a friend of mine said, we couldn't have gotten a worse set of facts for this case if we had a contest.
We are trying to get one or more of the fanciest law firms in the state to help us on taking the fangs out of this case. We know what we're doing. Please let us do our jobs.
I would be personally, professionally, and, as a representative of HSC, globally grateful if everyone on this list would calm down and ask others to calm down. Specifically, I would ask people:
a. Not to write to the Supreme Court or any court.
b. Not to talk to their legislators or make any public statements about a need for legislation.
c. Tell their neighbors, friends, lists, groups both of the above and to educate them about the choices available and about how panic isn't necessary, marches on Sacramento aren't necessary, etc.
I wish this were the type of situation where we could put the fury, passion and energy of the members of this list to good use. Trust me, if we end up having to go the legislative route, we will have that situation at some points. But this isn't that type of situation, and too many folks stirring things up hurts instead of helps.
Thanks for listening.
March 8, 2008:
Regarding the petition going around online, Debbie Schwarzer has been in contact with HSLDA. She knows the story behind the petition. She says it's pretty funny, but she can't share it. But she says that the only reason to sign it is if it makes you feel better (emotional safety valve), and the only reason not to sign it is if you don't want to be on HSLDA's mailing list until you're a great-grandparent. Hopefully, that puts this debate to rest.
Here's the latest update, and it's very good news:
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Debbie says:
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.
Wilson, Sonsini, Goodrich & Rosati, which is headquartered in Palo Alto, CA, will be representing HSC. They had helped HSC back in some of the dark days of Delaine Eastin's time, and their thorough research helped us feel more comfortable that the advice we were giving the world about private homeschooling was correct. In the spirit of full disclosure, you should know that I worked there for many years, but they made the decision to go forward because they think the case presents interesting legal issues and they'd like to be on our side.
They will be working very closely with another firm, Baker & McKenzie, which has 150 offices around the world and, conveniently, one across the street from WSGR in Palo Alto. Jerry Salcido, who has been a member of the HSC legal team for several years, is an attorney at that office, and his firm has graciously agreed to donate their services as well. Because we couldn't have two firms working for HSC, Baker and CHN have agreed that CHN will be their named client.
We believe that HSC and CHN's interests in this case are very similar. We have similar membership profiles, we want the same results, we both think that help from professionals in dealing with the Supreme Court will be invaluable. The firms will consult with each other to make sure they are not duplicating efforts, but that they also aren't leaving any important arguments out. They will also try to coordinate their efforts with the other groups with which HSC and CHN have been working, HSLDA, CHEA and Family Protection Ministries.
I am very excited by this development. I know we're all a smart bunch of people, and maybe we could put these papers together ourselves, but experience here can make the difference. These firms have the experience. I hope you'll continue to support what we are doing.
Debbie Schwarzer
Co-chair HSC legal team (& GHF Legal Counsel)
Assemblymember Joel Anderson, a conservative Republican whose children are taught at home, has introduced a concurrent resolution in the California Assembly. If it passes, it will go to the state Senate for their vote.
I'm not copying and pasting the entire resolution because I am not certain that what I was sent was the final version that he submitted to Legislative Counsel. His office tells me that you should be able to find it tonight by going to www.leginfo.ca.gov and doing one of two things. You can click on the blue button called "Bill Information" and then, on the next screen, select "Bill Number" and type in ACR 115. Alternatively, at that same page, you can click on "Author" and enter his name, Anderson.
The resolution basically states as follows: that homeschooled children perform well at college and in life, that there is a rich history of homeschooling, that an estimated 200,000 children in California and 2,000,000 children in the U.S. are taught at home, that the U.S. Constitution recognizes the fundamental right of parents to have their children educated outside of state schools, that the appellate decision is misguided, and that the Supreme Court should reverse the decision.
The call for the Supreme Court to reverse is in the second to last paragraph of the version I have seen. Obviously, this goes against what I have been asking people to do the last week (leave the Supreme Court alone lest we make them mad). However, I believe this resolution is intended to serve much the same function as the HSLDA petition, which is to give a group (here the legislature) the opportunity to do something concrete before the Court completes its review. I believe many in the legislature understand that it is premature to try to introduce legislation until that review is
complete and we know what the Court believes the law in California should be based on the statutes we currently have in place.
Given the purpose of the resolution, and that the Court will ignore anything the legislature says, I think the resolution serves one other very important purpose. It will help identify who in the Assembly and who in the Senate is our friend, and who isn't. We all know that there are members of both houses who are beholden to the CTA and to unions, and we can expect them to vote against the resolution. But if there are members who support the resolution, especially Democrats, it is in our interest to know who they are, as we will need to work with them should legislation be unavoidable.
This is one case where I do encourage members of HSC and all other homeschoolers in the state to contact their representatives (currently, just the Assemblymembers, as it is not pending before the Senate and will just confuse your Senator's office if you call now) and encourage them to vote in favor of ACR 115. You can find your Assemblymember and his or her contact information by going to www.leginfo.ca.gov, clicking on the blue box entitled "Your Legislature", and entering your zip code.
Calls are fine, but letters faxed to the office are even better, as they then retain tangible evidence of their constituents' positions. Emails are often ignored, so please call or fax if possible. It is best to give your name, the city and/or Assembly District you live in and the name of the resolution (ACR 115), to state that you educate your children at home (or support those who do) and wish the right of California families to continue to have that option with minimal government intervention, and to state your desire that Assemblymember ______ vote in favor of ACR 115 by Joel Anderson.
If you have any interesting discussions with staff about this resolution, either a strong indication of probable support or opposition, or any other feedback the legal and legislative folks should know about, please tell me about it at legal@giftedhomeschoolers.org
Thanks.
Debbie Schwarzer
Co-chair Legal Team and Legislative Chair for HSC & GHF
It's easy. Resolutions are essentially meaningless. They allow the legislature to recognize people, events, groups, issues without actually making law. We pass a resolution declaring that next Tuesday is Butterfly Day. We pass a resolution to recognize the contribution of worms to the health of California soil. We pass a resolution honoring the sacrifices of armed service members in this or that conflict (I made all those up). We don't make any laws protecting butterflies, or worms, or providing services to the soldiers, by
passing a resolution; it's just a feel-good measure.
They don't have the force of law. If passed, they certainly tell the public (and the other members of the legislature) which way the wind is blowing (although, since it's quite possible that a lot of members might be absent when the vote is taken, or don't pay a whole lot of attention, you can't rely on what the roll call says).
Bills are how law is made. They have to be written and sponsored by someone, and they then have to pass both houses after full debate and public hearing before they can be sent to the governor for his signature (and governors often veto bills). This resolution isn't a bill. It doesn't mean that there will be a bill. It doesn't signal what any future bill would look like. All it does is help us get a sense of which legislators are friends of homeschooling, and which aren't, and it has great value in that. We especially hope that those of you (Californians) who vote Democrat or live in districts with Democratic Assemblymembers will light up your members' fax machines and phones, since those are the folks whose position on homeschooling we do not currently know, and whose support will be crucial, if legislation is inevitable, in passing the least restrictive bill possible.
Debbie Schwarzer
Co-chair Legal Team and Legislative Chair of HSC & GHF
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Official Statement from GHF's Director, following acceptance of representation from the law firm Bingham McCutchen in the case of In Re Rachel L. (The two state advocacy groups, HSC & CHN, are already being represented by Wilson Sonsini and Baker & McKenzie, respectively -- see above)
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I'm thrilled to be able to work together with these California state advocacy groups. Gifted Homeschoolers Forum, while an international organization, is based in California and many of our members live and homeschool in California. We fully support the work of the statewide coalition, and are especially pleased with the partnership of HSC and CHN, the two major statewide homeschool organizations.
The legal response to In Re Rachel L is being led largely by Debbie Schwarzer in her role as Legal Chair for HSC (and who is board member/legal chair for GHF, as well), and we strongly believe it is in the best interests of California homeschoolers to have the effort led directly by those "on the ground" in California who have years of familiarity and experience working with the state education code and the parties relevant to the state policy process. HSC and CHN are those groups, and their staff is outstanding.
This coalition has GHF's confidence and we hope you all feel the same.
Corin Barsily Goodwin
Director, Gifted Homeschoolers Forum
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 and Legislative Chair of HSC & GHF
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Permission Granted by California Court to File Brief in the case of In Re Rachel L
Arbor Academy, AtoZ Home's Cool, Beach High School, Excellence in Education, Gifted Homeschoolers Forum, Grace Christian Academy, Homefires Journal and Northern California African American Homeschoolers Association (the "Homeschooling Groups") announced today that they have been granted their application to jointly file a brief on an amicus curiae basis with the appellate court in Southern California that will be rehearing the recent case affecting homeschooling.
The Homeschooling Groups consist of several organizations that offer services for homeschoolers, including secular and religious programs; advocacy groups supporting gifted, special needs and African American homeschoolers; and internet portals providing resources for the diverse homeschooling community. Their joint brief focuses on giving the court factual information about homeschooling. The groups believe that the court cannot decide whether its prior position that homeschooling parents must obtain teaching credentials constitutes a permissible regulation without understanding what homeschooling is and whether objective evidence exists that it works. Their brief shows the court that California's interest in educating children is more than adequately met through currently allowed homeschooling methods, and effectively prohibiting it through a credential requirement is neither reasonable nor necessary.
The court has stated that it intends to schedule the rehearing in June.
Pro bono counsel for the Homeschooling Groups included Bingham McCutchen of San Francisco, GCA Law Partners of Mountain View and Morrison & Foerster of Los Angeles. The brief was filed on Monday, May 19, 2008 and approved on May 21, 2008.
Opinion on Rehearing
Yesterday morning, the opinion was released and, in short, it showed that the panel of judges did read what information was set before them and learned from it. The outcome was the best that we could have hoped for. The court recognized legislative history and intent and acknowledged that private-school homeschooling is legal (without teaching credentials) in the state of California.
http://ssrn.com/abstract=
If you go there and see the abstract, there is a button for downloading, and that takes you to the complete paper. You are welcome to cite to the paper in anything you are posting or writing, but you need to give proper mention of where it is being published. They give you a suggested way to cite to the paper at the SSRN website.
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