Back to Rel #08-68
May 19, 2008
Mr. Joseph A. Lane
Clerk of the Court/Administrator
Court of Appeal
Second Appellate District of California
300 South Spring Street, 2nd Floor, North Tower
Los Angeles, California 90013
Re: In re Rachel L. et al., Persons Coming Under the Juvenile Court Law; Jonathan L. and Mary Grace L., Los Angeles County Department of Children and Family Services et al., 2d Civil No. B192878; L.A.S.C. No. JC00773
Dear Mr. Lane and Justices of the Court of Appeal:
In response to your request, dated March 25, 2008, we hereby submit this letter brief on behalf of Superintendent of Public Instruction (SPI) Jack O'Connell and the California Department of Education (CDE or Department). This letter brief responds to the questions posed in your letter in the context of the February 28, 2008 decision of the Second Appellate District in the above-referenced case involving juvenile dependency proceedings and the compulsory school attendance laws discussed therein.
(1) Do California statutes permit home-schooling1 by the means used by Sunland; that is, by enrolling the children in a private school which apparently exists only to enable parents to home-school their children via independent study?
In our opinion, a private school may not offer instruction through "independent study" and a child enrolled in a private school, such as the Sunland Christian School, would not qualify for the exemption from public school attendance. No state law expressly authorizes private school-supervised independent study. The statutes and regulations that allow students to enter into specific contracts to receive instruction independent of classroom attendance all refer expressly to only public school districts. (Ed. Code, §51745, et seq. and Cal. Code of Regs., tit. 5 § 11700, et seq.) The statutes that set forth the content and accountability measures that must be included in every public independent study contract, and the requirement of general supervision by a credentialed teacher, guarantee the quality and adequacy of that mode of instruction.
We see no legal reason to extend the exemption allowed by Section 482222 to include supervision of independent study by a school like Sunland, absent an act of the Legislature to that effect.
(2) Do California statutes otherwise permit home-schooling, by means of parents creating their own home-based private schools and, if so, upon what conditions?
Education Code section 48200 requires "compulsory full-time education" in the California public school system for all children residing in the state who are between the ages of 6 and 18. The only exceptions to this requirement are those allowed by statute in Education Code Sections 48220-48231.3 The plenary power of a state legislature to provide for the education and welfare of children through compulsory attendance laws has been affirmed repeatedly since the U.S. Supreme Court's decision in Pierce v. Society of Sisters (1925) 268 U.S. 510. Section 48200 and its exceptions are a valid exercise of that state legislative power.
The SPI and CDE believe that compulsory public education is a necessary and appropriate act of State legislative authority that has only limited exceptions under current statutes. Those exceptions must be narrowly construed to assure that every child in California has an adequate educational opportunity and that those opportunities are actively protected by the public education and child welfare systems throughout the state. We further believe that, when quality educational opportunities have been so assured, it is legally permissible for a parent to qualify as a private school and teach their children in their own home.
The question is whether the exceptions to compulsory public school attendance allow "home schooling" by parents without teaching credentials who declare their homes to be private schools. Education Code Section 48222, which exempts a child from public school if he or she attends a private school, does not expressly allow or prohibit parents from establishing private schools in their homes. No state law directly addresses "home schooling" by parents. This uncertainty has existed for many years and the Legislature has chosen not to directly address the issue. However, we submit that Section 48222 may be interpreted to allow parents to declare their homes private schools, subject to responsible regulation by local education and law enforcement officials.
Education Code section 48222, in its entirety, states as follows:
Children who are being instructed in a private full-time day school by persons capable of teaching shall be exempted. Such school shall, except under the circumstances described in Section 30, be taught in the English language and shall offer instruction in the several branches of study required to be taught in the public schools of the state. The attendance of the pupils shall be kept by private school authorities in a register, and the record of attendance shall indicate clearly every absence of the pupil from school for a half day or more during each day that school is maintained during the year.
Exemptions under this section shall be valid only after verification by the attendance supervisor of the district, or other person designated by the board of education, that the private school has complied with the provisions of Section 33190 requiring the annual filing by the owner or other head of a private school of an affidavit or statement of prescribed information with the Superintendent of Public Instruction. The verification required by this section shall not be construed as an evaluation, recognition, approval, or endorsement of any private school or course. (Emphasis added.)
Section 48222, then, creates several substantive requirements regarding teacher capability and curriculum content, and several procedural requirements regarding the verification of private school quality by local education officials and filing of a private school affidavit with the SPI. Local attendance supervisors are also required to verify that a private school affidavit is on file before allowing a child an attendance exemption. Cal. Ed. Code Section 33190 requires the Department of Education to accept and file a private school affidavit that describes the courses of instruction and the capabilities of each faculty member.4 This program also states that acceptance and filing of a complete affidavit does not constitute, and may be not be represented by the private school as constituting, any "evaluation, recognition, approval, or endorsement of the school…" Section 33190 does not require disclosure of whether the "person" filing the affidavit is a parent seeking to home school his or her own students, or whether the person has a teaching credential.
Furthermore, Cal. Ed. Code Section 44237, which requires private school employees to be fingerprinted for safety purposes, also states that any "person" may operate a private school. This section does not exclude home schooling parents without credentials from the class of "persons" entitled to form a school. On the contrary, Section 44237(b)(4) expressly exempts parents or guardians working exclusively with their own children from the finger print requirement. If the Legislature intended to prohibit parents from declaring their homes private schools, it could have done so expressly in these sections. Absent an express prohibition, and in light of the protections for children that are now in place, we see no compelling reason to treat parents differently than other private "persons" who are allowed to form private schools. (Jefferson v. Compton Unified Sch. Dist. (1993) 14 Cal.App.4th 32, 39 [statutes should not be construed to cause a harsh result.].)
State statutes now establish a system to protect children against abuse and neglect because local officials are charged with enforcement of the truancy and child welfare statutes. Education Code Section 48240 requires each school district to appoint a "supervisor of attendance" of all students to oversee compliance with "compulsory full-time education." Such attendance supervisors participate in local school attendance review boards (SARBs) that also include law enforcement and child welfare officials. (Ed. Code, § 48321.) When a parent asserts that their child is enrolled in private school, a public attendance supervisor is required to verify that assertion and determine whether the child is entitled to the attendance exemption under Section 48222. If not, the child may be declared habitually truant and referred to the SARB and to the district attorney for juvenile court proceedings. (Ed. Code, § 48263.5.) After a hearing, a juvenile court judge may order the child placed in a public or proper private school and may make other orders for the welfare of the child. (Ed. Code, §§ 48267 and 48268.)
The SPI and CDE support the principle of parental and student choice where it is responsibly exercised, as it is in district-supervised independent study, charter schools, and alternative schools. (e.g., Cal. Ed. Code § 51745, et seq.; Ed. Code, §. 47600, et seq., and Ed. Code, § 58500, et seq.). In addition, we believe that current California truancy and child welfare laws, many enacted since the People v. Turner (1953) 121 Cal.App.2d Supp. 861 decision, create a reasonable system of private school regulation which, if properly implemented at the local level, will assure that children receive an education.5
(3) In light of the answers to the above questions, does the California legislative scheme violate the U.S. Constitution, with respect to the free exercise of religion and parental control rights of parents who desire to home-school their children?
California's compulsory education statutes do not violate the U.S. Constitution because, unlike the statutes at issue in Pierce v. Society of Sisters (1925) 268 U.S. 510, they do not compel the attendance of all students at public schools. We do not believe that parents have religious or parental rights to allow their children to be truant as defined by the laws described above. The very narrow exception created by the U.S. Supreme Court in Wisconsin v. Yoder (1972) 406 U.S. 205 only applies to families with "deep religious convictions" that home instruction of children after a certain age is vital to the existence of that religious community. In Yoder, the Amish families established through expert testimony that compulsory attendance after 8th grade would destroy the Amish community. Every California child has a fundamental right to an education and the State has a compelling interest in safeguarding that right through compulsory attendance statutes. (Serrano v. Priest (1976) 18 Cal.3d 728; Butt v. State of California (1992) 4 Cal.4th 668.) We believe that the California compulsory education statutes properly balance the rights of parents respecting control of their children's education and religious expression with the right of children to be educated.
Thank you for this opportunity to address the difficult legal and policy questions in this case. Please let us know if there are further questions you would like the Superintendent or Department to address.
Sincerely,
MARSHA A. BEDWELL
General Counsel
AMY BISSON HOLLOWAY
Assistant General Counsel
______________________
Michael Hersher
Deputy General Counsel
Counsel for the Superintendent of Public Instruction and
the California Department of Education
cc: See attached Service List
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1 There is no statutory or commonly understood definition of the phrase "homeschooling."
2 All statutory references are to the California Education Code unless otherwise noted.
3 We will address the religious exception to compulsory attendance below in response to the Court's third question.
4 Since 1991, the annual Budget Act has directed CDE to "expend no funds to prepare a compilation of information on private schools with five or fewer students." (See, e.g., Stats. 1991, c.118, sec. 2.00, Item 6110-001-0001, para. 5; and Stats. 2007, c.171, Item 6110-001-0001, para. 2.) If a home school had less than five students, it would not appear on CDE's list, but a district attendance supervisor would be required to ask CDE if an affidavit was on file with regard to a particular school.
5 The decision in Cassady v. Signorelli (1996) 49 Cal. App.4th 55 supports such deference to the judgment of local educators and law enforcement in affirming a family court's determination that "home schooling" by the parent could be appropriate for a particular child. Deference to local school district discretion is further required by Education Code section 35160 which states that a district may engage in any activity that is not prohibited by law.
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