Results tagged “California” from Learn at Every Turn - Creative, Enriched Homeschooling
In a past life, I was a lawyer with significant appellate experience. As the California case challenging the right of parents to homeschool has unfolded, I've followed Debbie Schwarzer's commentary and found her analysis to be excellent.
Here are her latest comments, reprinted with permission:
Right now, CA law on homeschooling is exactly the same as it was in January of
this year before any of us had ever heard of the Long family and this case.
When the appellate court issued its opinion in February, it did say that the
only legal exemption from public school attendance for some (that's SOME)
families was the tutoring exemption under Section 48224 of the Ed Code. But
lots of us either form our own private schools or enroll in private schools
formed by others in reliance on the exemption under Section 48222 of the Ed
Code. The court really didn't like the school (Sunland Christian) that the
children in this family were enrolled in, and they said a lot about brick and
mortar schools and made a big deal of children being IN a school (since Sunland
was virtual and didn't have a building, no children were IN its school). But
the reason I said SOME above was that we think that even under that original
opinion, families who formed their own private schools and taught their children
IN them were probably OK. It was the families enrolled in other people's
private schools who were most directly affected by the decision.
But then the court agreed at the end of March to rehear the case. What that
means is that they were basically going to have a "do-over" of the whole thing.
By court rules, their February opinion was vacated, meaning that it was as if it
had never existed. Lots and lots of groups filed friend-of-the-court briefs
(amicus briefs) in May, including a joint brief filed by the three large
CA-based groups (HSC, CHN and CHEA), and the court had the new hearing on June
23.
They have not yet issued a new opinion, but will probably do so before the end
of September. So, in light of the vacation of the original opinion, the prior
understanding of the law hasn't changed.
So what if the court issues an opinion tomorrow and it seems to somehow say that
parents need to be credentialed to teach their own, as their February opinion
did, or has some other restriction on homeschooling? Well, we have been told by
people who have reason to know that for certain that decision will be appealed
by the family in this case. And the CA groups would petition the appellate
court and, if they don't act, the CA Supreme Court to "stay" enforcement of the
decision pending the appeal. What that means is we would tell them not to start
enforcing the new interpretation of the law until the entire appeal process had
run its course. Given the huge burden on parents to try to get credentialed, we
think there's a good chance one of those two courts would agree. If they grant
a stay, then the law goes back to being interpreted the way it is being
interpreted now until the whole appeals process is done, which could take months
or even years.
What if both courts refuse to grant a stay? The effect would depend on whether
the Supreme Court either agrees to hear the appeal OR agrees to "depublish" the
opinion (we were all set to ask them to depublish the February opinion, which
means that the opinion would still be binding on the family involved in the case
but would not be binding on anyone else in the state who wasn't a party to that
case. In addition, in any future litigation, no one would be entitled to quote
(or "cite") that case as authority.
If the Supreme Court agrees to hear the appeal but won't stay the decision, then
believe me, the three big CA groups and HSLDA (we work together closely on all
matters involving these issues to make sure we give consistent advice) would be
thinking about what to tell people. But that's probably some months from now,
so see a little further below for the advice we'll probably be giving people for
this school year.
If the Supreme Court neither stays enforcement nor takes review of the case (and
historically, the state Supreme Court, just like the U.S. Supreme Court, only
agrees to review a tiny percentage of cases), then the groups will work like mad
to figure out if we can live with the situation OR if we need to seek a
legislative solution. We have all been doing a lot of work with the legislature
since February trying to convince them that we don't need legislation until all
other avenues have failed AND the situation is intolerable, so hopefully they'll
continue to hold off until we tell them that we have no other choice. For
example, if the court were basically to reissue its February decision, we might
think that families who were in private schools would be OK if they were in
their own private school, just not someone else's, and also try to get the law
clarified that homeschooling through a parent's own school or through a school
formed by others where capable parents did the teaching was fine. But this
wouldn't happen for a while, since the current legislative session adjourns at
the end of August, and they're not supposed to act on any bills other than ones
that were introduced by early summer. There were no bills involving
homeschooling pending, so probably none would be introduced until early next
year when the new session starts after the elections.
There has been one other interesting development in the case, but it really
doesn't affect us as much as we wish it would. The children in this family were
"under the jurisdiction" of the juvenile court. That meant that the court had
found that the parents weren't doing a good job, and that the court had the
power to make some types of decisions that usually only parents can make (such
as where to educate a child). In these cases, the juvenile court is supposed to
look at the facts every six months to make sure that the children still needed
to be under its jurisdiction. Obviously, with help, some parents get better and
no longer need the court looking over their shoulders. Here, it had been two
years since the juvenile court had reviewed this jurisdiction issue. Finally,
after the rehearing took place, it did, and it found that things had changed
enough that the children didn't need to be under its jurisdiction. We thought
that was great, and that maybe the appellate court would drop the whole issue
since it couldn't make any orders that would affect these children, but it turns
out the attorneys who were appointed to represent the children are appealing the
termination of jurisdiction. So while we think
the appellate court really shouldn't issue any opinion about homeschooling in
this case, it still might. There are two other appeals pending in the same
matter, so it's obviously been a very complicated set of proceedings.
As you can see, there are a number of different ways this can all play out, and
it's premature to make too many plans until we know what happens. But I believe
that all of the major CA groups and HSLDA will, for the start of this school
year, be telling people to do what they have always done (in other words, if
they have filed their own affidavit before, do that, if they used someone else's
private school, do that, if they were in a public school ISP or charter, do
that, but
don't change what you're doing out of any fear of what the legal issues are). We
DON'T think that families need to not homeschool, or enroll in a charter if they
otherwise wouldn't have, because of this case.
The best advice you can give new homeschoolers is to join one of the major
California-based groups. People from each of these groups are working hard on
this matter and staying in close touch with people who know what's happening in
the case, and these groups will be giving out new information as necessary.
There is no better way to stay informed than to join a group and either check
its home page frequently or join its e-list (all the groups have them) for
announcements. Of course, we'd prefer if everyone would join the HomeSchool
Association of California. We do not think it is necessary for people to join
HSLDA unless that's consistent with their personal values and philosophy (HSLDA
is a conservative Christian organization, and while they accept memberships from
all homeschoolers, their goals and desires may not be the same as any given
family's). We think it a little unlikely that truancy officers will start
fanning out across the state to hassle homeschoolers until it's a
bsolutely clear that the court and the legislature refuse to help us.
The Attorney General, the Governor and the Superintendent of Public Instruction
all believe that homeschooling privately, not through a public ISP or charter,
is legal. They did not agree with the appellate court's interpretation.
Homeschoolers are not without friends in high places, and families who wish to
teach their own children should do so with confidence. They should take steps
to stay informed, but they shouldn't be fearful.
I hope that explains the situation for you. Please let me know if there's
anything you don't understand.
Debbie Schwarzer
HSC Legal Team co-chair
Here are her latest comments, reprinted with permission:
Right now, CA law on homeschooling is exactly the same as it was in January of
this year before any of us had ever heard of the Long family and this case.
When the appellate court issued its opinion in February, it did say that the
only legal exemption from public school attendance for some (that's SOME)
families was the tutoring exemption under Section 48224 of the Ed Code. But
lots of us either form our own private schools or enroll in private schools
formed by others in reliance on the exemption under Section 48222 of the Ed
Code. The court really didn't like the school (Sunland Christian) that the
children in this family were enrolled in, and they said a lot about brick and
mortar schools and made a big deal of children being IN a school (since Sunland
was virtual and didn't have a building, no children were IN its school). But
the reason I said SOME above was that we think that even under that original
opinion, families who formed their own private schools and taught their children
IN them were probably OK. It was the families enrolled in other people's
private schools who were most directly affected by the decision.
But then the court agreed at the end of March to rehear the case. What that
means is that they were basically going to have a "do-over" of the whole thing.
By court rules, their February opinion was vacated, meaning that it was as if it
had never existed. Lots and lots of groups filed friend-of-the-court briefs
(amicus briefs) in May, including a joint brief filed by the three large
CA-based groups (HSC, CHN and CHEA), and the court had the new hearing on June
23.
They have not yet issued a new opinion, but will probably do so before the end
of September. So, in light of the vacation of the original opinion, the prior
understanding of the law hasn't changed.
So what if the court issues an opinion tomorrow and it seems to somehow say that
parents need to be credentialed to teach their own, as their February opinion
did, or has some other restriction on homeschooling? Well, we have been told by
people who have reason to know that for certain that decision will be appealed
by the family in this case. And the CA groups would petition the appellate
court and, if they don't act, the CA Supreme Court to "stay" enforcement of the
decision pending the appeal. What that means is we would tell them not to start
enforcing the new interpretation of the law until the entire appeal process had
run its course. Given the huge burden on parents to try to get credentialed, we
think there's a good chance one of those two courts would agree. If they grant
a stay, then the law goes back to being interpreted the way it is being
interpreted now until the whole appeals process is done, which could take months
or even years.
What if both courts refuse to grant a stay? The effect would depend on whether
the Supreme Court either agrees to hear the appeal OR agrees to "depublish" the
opinion (we were all set to ask them to depublish the February opinion, which
means that the opinion would still be binding on the family involved in the case
but would not be binding on anyone else in the state who wasn't a party to that
case. In addition, in any future litigation, no one would be entitled to quote
(or "cite") that case as authority.
If the Supreme Court agrees to hear the appeal but won't stay the decision, then
believe me, the three big CA groups and HSLDA (we work together closely on all
matters involving these issues to make sure we give consistent advice) would be
thinking about what to tell people. But that's probably some months from now,
so see a little further below for the advice we'll probably be giving people for
this school year.
If the Supreme Court neither stays enforcement nor takes review of the case (and
historically, the state Supreme Court, just like the U.S. Supreme Court, only
agrees to review a tiny percentage of cases), then the groups will work like mad
to figure out if we can live with the situation OR if we need to seek a
legislative solution. We have all been doing a lot of work with the legislature
since February trying to convince them that we don't need legislation until all
other avenues have failed AND the situation is intolerable, so hopefully they'll
continue to hold off until we tell them that we have no other choice. For
example, if the court were basically to reissue its February decision, we might
think that families who were in private schools would be OK if they were in
their own private school, just not someone else's, and also try to get the law
clarified that homeschooling through a parent's own school or through a school
formed by others where capable parents did the teaching was fine. But this
wouldn't happen for a while, since the current legislative session adjourns at
the end of August, and they're not supposed to act on any bills other than ones
that were introduced by early summer. There were no bills involving
homeschooling pending, so probably none would be introduced until early next
year when the new session starts after the elections.
There has been one other interesting development in the case, but it really
doesn't affect us as much as we wish it would. The children in this family were
"under the jurisdiction" of the juvenile court. That meant that the court had
found that the parents weren't doing a good job, and that the court had the
power to make some types of decisions that usually only parents can make (such
as where to educate a child). In these cases, the juvenile court is supposed to
look at the facts every six months to make sure that the children still needed
to be under its jurisdiction. Obviously, with help, some parents get better and
no longer need the court looking over their shoulders. Here, it had been two
years since the juvenile court had reviewed this jurisdiction issue. Finally,
after the rehearing took place, it did, and it found that things had changed
enough that the children didn't need to be under its jurisdiction. We thought
that was great, and that maybe the appellate court would drop the whole issue
since it couldn't make any orders that would affect these children, but it turns
out the attorneys who were appointed to represent the children are appealing the
termination of jurisdiction. So while we think
the appellate court really shouldn't issue any opinion about homeschooling in
this case, it still might. There are two other appeals pending in the same
matter, so it's obviously been a very complicated set of proceedings.
As you can see, there are a number of different ways this can all play out, and
it's premature to make too many plans until we know what happens. But I believe
that all of the major CA groups and HSLDA will, for the start of this school
year, be telling people to do what they have always done (in other words, if
they have filed their own affidavit before, do that, if they used someone else's
private school, do that, if they were in a public school ISP or charter, do
that, but
don't change what you're doing out of any fear of what the legal issues are). We
DON'T think that families need to not homeschool, or enroll in a charter if they
otherwise wouldn't have, because of this case.
The best advice you can give new homeschoolers is to join one of the major
California-based groups. People from each of these groups are working hard on
this matter and staying in close touch with people who know what's happening in
the case, and these groups will be giving out new information as necessary.
There is no better way to stay informed than to join a group and either check
its home page frequently or join its e-list (all the groups have them) for
announcements. Of course, we'd prefer if everyone would join the HomeSchool
Association of California. We do not think it is necessary for people to join
HSLDA unless that's consistent with their personal values and philosophy (HSLDA
is a conservative Christian organization, and while they accept memberships from
all homeschoolers, their goals and desires may not be the same as any given
family's). We think it a little unlikely that truancy officers will start
fanning out across the state to hassle homeschoolers until it's a
bsolutely clear that the court and the legislature refuse to help us.
The Attorney General, the Governor and the Superintendent of Public Instruction
all believe that homeschooling privately, not through a public ISP or charter,
is legal. They did not agree with the appellate court's interpretation.
Homeschoolers are not without friends in high places, and families who wish to
teach their own children should do so with confidence. They should take steps
to stay informed, but they shouldn't be fearful.
I hope that explains the situation for you. Please let me know if there's
anything you don't understand.
Debbie Schwarzer
HSC Legal Team co-chair
