The State of California is warning parents that they cannot educate their children at home without acquiring a professional teaching credential.

Home-schooling illegal in the Golden State?

Activists say that if your information comes only from the state's Department of Education, that is the obvious conclusion.

But legal defenders of home-based education argue that "home-schooling" is not even mentioned in California law and is legal under a statute that allows any parent to operate a "private school," even if the student body amounts to one. California is one of 12 states where home-schooling is accomplished under a private school exemption.

Nevertheless, on July 16, the California education department issued a memo that stated:

"In California, home-schooling – a situation where non-credentialed parents teach their own children, exclusively, at home whether using correspondence courses or other types of courses – is not an authorized exemption from mandatory public school attendance."

This is pure deception, contends home-school legal advocate Roy Hanson, director of the Lincoln, Calif.-based Private and Home Educators of California.

"One of the things the school district obviously is trying to do is use this to frighten people into joining the public school program," he said.

The memo, printed on the stationery of state Superintendent of Public Instruction Delaine Eastin, informed local educators of a new procedure that private schools must use to excuse their students from public school attendance. Private schools are required to file an affidavit for that purpose between Oct. 1 and Oct. 15 each year. The new method allows them to file via the Internet, directly with the state office.

The July 16 memo's reference to home-schooling continues:

"Furthermore, a parent's filing of the affidavit required of a private school does not transform that parent into a private school. Therefore, those parents who home-school their children are operating outside the law, and there is no reason for them to file an affidavit."

Michael Smith, president of the Home School Legal Defense Association in Virginia, is amazed by the state's position.

"It's really absurd when you think about it," he said, "because California, supposedly this forward state, would be the only state in the union that would require home-schoolers to be certified teachers."

The state's interpretation of the law has been communicated in various ways for about 10 years and is designed "to intimidate people not to home-school," said Karen Taylor, president of the California Homeschool Network

In spite of the July memo, according to Taylor, home-schooling families will continue this year as usual.

"They can say anything they want to, but the law has not changed," she said. "That is the important thing."

"Your child will be considered truant"

But the memo is being taken seriously by local education administrators.

The San Diego County Office of Education sent a letter Aug. 2 to "private school administrators" – which includes home-schooling families – informing them of "recent and urgent information" regarding the filing of private school affidavits. The fourth paragraph directs their attention to the July 16 memo's warning about home-school instruction.

The San Diego County letter concludes that, "As a result, non-credentialed parents who have home-schooled their children in the past can no longer file affidavits."

Without an affidavit, the letter warns, "your child will be considered truant."

Enclosed with the letter was a list of area programs with "credentialed home-school teachers that can assist you with your home schooling efforts." These are home-school programs conducted with oversight from the local public school district, said Smith, including charter schools and independent study cooperatives.

The San Diego letter concludes with, "Our sincere apology and regrets regarding this matter. Unfortunately this situation is not in our control."

Hanson said, however, that on Thursday he and other home-school defenders received assurances from a new attorney with the Department of Education, Roger Wolfertz, that the state must accept an affidavit from any parent who desires to teach at home. Wolfertz made that clarification at a meeting of the California State School Attendance Review Board, an advisory body to the superintendent of public instruction.

Will home-schooling families in California be informed that despite the July 16 memo and other communiqués, they can file their affidavits as usual and continue homeschooling?

"We don't expect that," said Jim Davis, legislative liaison for Hanson's group.

Have California parents been deliberately misinformed by the state regarding the legality of home-schooling?

"I would go so far as to say this, they probably have been deceived in the past, and they're being even more deceived now," said Hanson.

The California Homeschool Network's Taylor agrees that the state has been putting out false information "to intimidate people not to home-school." She speculates that the motivation is money.

"That's all I can think of," she said. "Home-school children are doing well – there doesn't seem to be any argument academically or socially. When our children are not in the school system the districts lose funding."

Hanson explained that funds are allotted according to how many students are enrolled. Each school-age child that does not enroll in the local public school represents lost potential income of $4,000 to $6,000.

The state's increasing pressure on home-schooling families comes at a time when family advocates such as James Dobson are saying "it's time to get our kids out" of California's public school system.

In a speech at the National Religious Broadcasters convention in February, he noted that the California legislature has mandated the teaching of "homosexual propaganda" in the state's public schools.

California home-school legal defender Gary Kreep, president of the U.S. Justice Foundation in Escondido, near San Diego, agrees that funding is a motivation for rejecting home-schooling, but also believes that some officials don't like home-schoolers because they are independent thinkers.

"If you're not in public school you can't be indoctrinated to think that homosexuality is fine," he said. "You can't be indoctrinated with the teacher's union or the educrats who want the children to think (a certain way)."

On its website, the Homeschool Association of California conjectures that the state's "motives range from the greedy to the noble," but believes it should be given the benefit of the doubt: "It is possible that well-meaning employees of the state have looked at the question and concluded that state law does not permit families to do this."

Vigorous opposition

Home-school watchers in California say recently retired Department of Education attorney Carolyn Pirillo, deputy counsel to the superintendent, was the primary influence behind the state's insistence that home-schooling by parents without a teaching certificate is illegal.

Hanson said opposition to home-schooling at the Department of Education has become more vigorous in the last year, a development that has corresponded with a major change in the staff that handles private school affidavits. Home-schoolers who call the department often are harassed, he said.

The Homeschool Association of California says it has been informed that officials in some counties and at the Department of Education are denying parents access to the private school affidavits, advising them that the private school option is not legal for home-schoolers.

Department of Education communications coordinator Nicole Winger told WorldNetDaily she was not prepared to comment on the state's position on home-schooling but believes the July 16 memo stating that it is not legal without certified teachers "speaks for itself."

The education department was unable to respond late last week to WND's repeated attempts to reach personnel who can comment on home-schooling, Winger said. She explained that because the department's legal section is in the process of moving its offices, attorneys were not available Thursday and Friday. Also, Teresa Cantrell, program analyst for the department and the contact person regarding private school affidavits, did not return phone calls.

In a May 10 letter citing provisions of the federal No Child Left Behind Act of 2001, Superintendent Eastin cited two California court cases to back her argument that a parent must be certified in the grade level he or she wishes to teach.

In the 1953 case of People vs. Turner, the Los Angeles Superior Court Appellate Department concluded, using the "reasonableness" test, that it was not reasonable for the state to be required to supervise the many small private schools across California.

The Home School Legal Defense Association's Smith insists that there are three problems with this decision. He says, first of all, the court was wrong in making the assumption that the state actually supervises private schools. The state has no such authority, Smith contends. Second, the current private school affidavit requirement was not in existence in 1953. Third, he cites the 1963 U.S. Supreme Court case, Sherbert v. Verner, "which established that whenever there is a violation of an individual's fundamental right (such as parents' right to educate their children, or the right to free exercise of religion), the compelling state interest-least restrictive balancing test must be applied, rather than the reasonable relationship test."

Eastin also cited the 1961 case of re Shinn, in which a California court determined that the Shinn family's claim to have established a private school in their home did not comply with the state's private school law.

Smith argues that the court determined the family was not in compliance because the Shinns were not teaching their children the required subjects. The court assumed the legality of private home-schooling, Smith contends, then sought to determine whether the Shinn family met private school requirements.

Legal action?

The U.S. Justice Foundation's Kreep said his group and others, including the Homeschool Legal Defense Association, are discussing what to do about California's threat to home-schooling.

Kreep said he is concerned that the state will crack down on home-schoolers en masse unless pre-emptive action is taken.

"If we wait for an attack where they are going after homeschoolers in 15 or 16 different counties at the same time, there are not going to be enough resources to fight that," he said.

Kreep noted that he has been involved in the legal defense of some home-schooling families against school districts. But so far, according to Smith, California generally has not enforced its stated position on home-schooling.

The Homeschool Association of California said it hears of a handful of truancy cases related to home-schooling each year.

"Most school districts don’t have the time or stomach to do it," Smith said. "They kind of figure well, if these kids are being educated we've got bigger fish to fry. And district attorneys, city attorneys don't see this as a high priority."

But Smith emphasized, "It's not because the state hasn't tried. They have, they've tried to get impetus in prosecutions. They just haven't gotten it."

The Homeschool Association of California – which calls the state's interpretation of the education law "fatally flawed" – is convinced that any court hearing a case against a home-schooling family would have to rule in the family's favor.

But the association advises home-schooling families and their friends to not wage a campaign of phoning, letter-writing and e-mailing, believing "these actions can have a very serious negative effect."

"In all likelihood," the group's statement said, "these officials sincerely believe they are correct ... . We think it unlikely that they will revisit their interpretation of the law because hundreds of citizens who aren't lawyers tell them they’re bad and wrong. To the contrary, it will only make them mad. We have seen several instances where this public pressure has, in fact, made things turn out worse for the families involved."

Taylor said her California Homeschool Network has no plans at the moment to challenge the state.

"I think it might be premature to have legal action now," she said. "Those of us in California plan on continuing to home-school, so we will be filing as we always have. We will not back down."

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