SACRAMENTO — Earlier this year, California’s 2nd District Court of Appeal shocked parents and lawmakers by effectively banning the homeschooling of children.
In my column “Court Out of Touch with Reality in Homeschool Decision,” I pointed out that the court had ignored a longtime state practice that gave approval to parents to homeschool their children. When the court reversed itself, the judges cited this state practice as a key reason for the reversal.
The case involved eight children who were being taught at home by the children’s mother. The original appellate decision said that children are exempt from compulsory education in a government-run school only if they attend a private school or are instructed by a tutor who holds a state teaching credential. My column noted, however, that “The state’s years-long practice toward homeschoolers has been for individual parents to sign a so-called Private School Affidavit that designates the parents’ home as a private school where they can teach their own children.”
These affidavits are filed with local education agencies such as county offices of education. Under this practice, parents who homeschool avoid the education code requirement that children taught at home need to be instructed by a tutor with a teaching credential. The original decision, however, failed to acknowledge that this procedure has been accepted by government agencies and instead made the absence of a state teaching credential all important for parents who homeschool. In reversing itself, the court now recognizes the importance of these affidavits.
The appeal court admitted that state lawmakers have “acted as though homeschooling is, in fact, permitted in California.” The court observed that the state superintendent of public instruction is required to compile a list of all private schools filing affidavits. It then went on to note that the Legislature enacted a law in 1991 that included a reference to “a compilation of information on private schools with five or fewer students.” The court acknowledged that this reference was likely aimed at homeschooling parents.
According to the new decision: “It is suggested that this reflects the Legislature’s understanding that numerous home schools file private school affidavits in California. This is not an unreasonable interpretation. While it is possible that some private schools with five or fewer students are, in fact, traditional private schools in which the teacher is unrelated to the students, it is much more likely that the private schools referred to by this law are home schools.” In addition, the court observed that in another law the state exempts parents who homeschool their children from submitting fingerprints for criminal background checks, which applicants for employment in regular private schools must submit.
In the end, the court found: “The Legislature is aware that homeschooling parents file affidavits as private schools, and has passed laws based on that awareness. The Department of Education has not challenged the practice, and the LAUSD has not asserted that the children of such parents are truant.” In other words, everyone but the courts was well aware that homeschooling was taking place and that there was nothing legally wrong with this situation.
It is a welcome development that the state judiciary came to a just and sensible conclusion in this case, but the whole hullabaloo ignored the basic question of why 166,000 children in California are being homeschooled in the first place. Many parents have decided to exit the public school system, often at great sacrifice in terms of their finances and time. This is an indication that the government’s education system is failing to meet the needs of many taxpaying parents and their children. Giving parents greater school-choice options should therefore be a top priority for state and federal lawmakers.
Lance T. Izumi, J.D., is the senior director and education director of the Pacific Research Institute.
