An appeals court in California has ruled that state law does permit homeschooling “as a species of private school education” but that statutory permission for parents to teach their own children could be “overridden in order to protect the safety of a child who has been declared dependent.”

The long-awaited case resolves many of the questions that had developed in homeschooling circles across the nation when the same court earlier found that parents had no such rights – statutorily or constitutionally – in California.

The ruling released this morning by the 2nd Appellate District in Los Angeles said the dispute came out of juvenile court proceedings in which court-appointed lawyers for two children demanded “an order that they be sent to private or public school, rather than educated at home by their mother.”

The dependency court did not agree, “primarily based on its view that parents have an absolute constitutional right to homeschool their children,” the appeals court said. The lawyers then advanced their case to the appeals level, which earlier granted the order.

“We filed our original opinion on Feb. 28, 2008, granting the petition on the bases that: (1) California statutory law does not permit homeschooling; and (2) this prohibition does not violate the U.S. Constitution,” the opinion said.

WND broke the story then when the judges literally ordered the homeschoolers into a government-approved education program.

But the judges granted a request for rehearing “in order to provide an opportunity for further argument on the multiple complex issues involved in this case, including, but not limited to: (1) additional California statutes that might bear upon the issue; and (2) potentially applicable provisions of the California Constitution.”

“This is a great victory for homeschool freedom,” said Micheal Farris, who is chairman of the Home School Legal Defense Association and was one of the attorneys who had argued the case. “I have never seen such an impressive array of people and organizations coming to the defense of homeschooling.”

“Tens of thousands of California parents teaching over 166,000 homeschooled children are now breathing easier,” he said.

The opinion said the judges were not deciding whether homeschool should be allowed. “That job is for the Legislature,” they said.

“Homeschooling was initially expressly permitted in California, when the compulsory education law was enacted in 1903,” the court said. “In 1929, however, homeschool was amended out of the law, and children who were not educated in public or private schools could be taught privately only by a credentialed tutor.”

However, since then, “subsequent developments in the law call this conclusion into question. Although the Legislature did not amend the statutory scheme so as to expressly permit homeschooling, more recent enactments demonstrate an apparent acceptance by the Legislature of the proposition that homeschooling is taking place in California, with homeschools allowed as private schools,” the court ruling said.

“Recent statutes indicate that the Legislature is aware that some parents in California homeschool their children by declaring their homes to be private schools. Moreover, several statutory enactments indicate a legislative approval of homeschooling, by exempting homeschools from requirements otherwise applicable to private schools.”

The court said, “it is our view that the proper course of action is to interpret the earlier statutes in light of the later ones, and to recognize, as controlling, the Legislature’s apparent acceptance of the proposition that homeschools are permissible in California when conducted as a private school.”

The opinion was authored by H. Walter Croskey, who had written the earlier opinion as well. He was joined by Joan Klein and Patti Kitching.

The case had been brought to the appeals court by the Children’s Law Center of Los Angeles, and the father’s request for rehearing had been handled by Gary Kreep of the United States Justice Foundation, lawyers with the Alliance Defense Fund and others.

Participating on behalf of Sunland Christian School, which oversaw the children’s home education, were officials with the Pacific Justice Institute.

Others participating in the briefs included the Pacific Legal Foundation, the American Center for Law and Justice and the Western Center for Law and Policy.

The case also attracted comments from the American Civil Liberties Union, Jewish Homeschoolers of Napa and Sonoma counties, the California Homeschool Network, the Homeschool Association of California, the Christian Home Educators Association of California, the Gifted Homeschoolers Forum, Grace Christian Academy, the Northern California African American Homeschoolers Association, the Home School Legal Defense Association, Focus on the Family and Liberty Counsel.

Also commenting were the California Teachers Association, Attorney General Edmund G. Brown Jr., the state superintendent of public instruction and the California Department of Education

The court found multiple specific provisions in state law, including one that exempts “a parent or guardian working exclusively with his or her children” from fingerprinting requirements, that support the legitimacy of homeschooling.

“We therefore conclude that home schools may constitute private schools,” the opinion said.

In the specific case that prompted the questions, however, the court said state law permits a dependency court “to issue any reasonable orders for the care of a dependent child, including orders limiting the right of the parents to make educational decisions for the child.”

“Because the United States Supreme Court has held that parents possess a constitutional right to direct the education of their children, it is argued that any restriction on homeschooling is a violation of this constitutional right. We disagree. We conclude that an order requiring a dependent child to attend school outside the home in order to protect that child’s safety is not an unconstitutional violation of the parents’ right to direct the education of their children,” the judges wrote.

“Parents possess a constitutional liberty interest in directing the education of their children, but the right must yield to state interests in certain circumstances,” the court said.

“In this case, the restriction on homeschooling would arise in a proceeding in which the children have already been found dependent due to abuse and neglect of a sibling,” the court said. “Should a dependency court conclude, in the proper exercise of its discretion, that due to the history of abuse and neglect in the family, requiring a dependent child to have regular contact with mandated reporters is necessary to guarantee the child’s safety, that order would satisfy strict scrutiny. There can be no dispute that the child’s safety is a compelling governmental interest. Restricting homeschooling also appears to be narrowly tailored to achieving that goal. Without contact with mandated reporters, it may well be that the child’s safety cannot be guaranteed without removing the child from the parents’ custody. As such, the restriction on homeschooling would be the least restrictive means of achieving the goal of protecting the children; they would be permitted to continue to live at home with their parents, but their educators would change in order to provide them an extra layer of protection.”

The judges’ earlier opinion had ruled in the case the family failed to demonstrate “that mother has a teaching credential such that the children can be said to be receiving an education from a credentialed tutor,” and that their involvement and supervision by Sunland Christian School’s independent study programs was of no value.

Nor did the family’s religious beliefs matter to the court.

Their “sincerely held religious beliefs” are “not the quality of evidence that permits us to say that application of California’s compulsory public school education law to them violates their First Amendment rights.”

“Such sparse representations are too easily asserted by any parent who wishes to homeschool his or her child,” the court concluded.

The parents of the children talked with WND as the case developed about the situation over the education being provided to two of their eight children.

The father said the family objects to public school because of the pro-homosexual, pro-bisexual, pro-transgender agenda of California’s public schools, on which WND previously has reported. Just yesterday, California lawmakers decided to mandate a day of celebration and honor for Harvey Milk, the late San Francisco supervisor who was an activist for homosexuality.

“We just don’t want them teaching our children,” he told WND. “They teach things that are totally contrary to what we believe. They put questions in our children’s minds we don’t feel they’re ready for.

“When they are much more mature, they can deal with these issues, alternative lifestyles, and such, or whether they came from primordial slop. At the present time it’s my job to teach them the correct way of thinking,” he said.

That was the court opinion, however, that was vacated by the appeals court prior to the newest ruling. And while today’s decision was pending, a judge ended the juvenile court case that had established jurisdiction over the two children, opening the door for the demand for public school enrollment.

The Home School Legal Defense Association said, “the juvenile court judge terminated jurisdiction over the two young L. children in a hearing held on July 10, 2008.”

An estimated 166,000 children are being homeschooled in California, and their parents and advocates had expressed concern that the court’s original ruling would leave parents who educate their children at home open to criminal truancy charges and civil charges for child neglect.

A number of groups already have assembled in California under the Rescue Your Child slogan to encourage parents to withdraw their children from the state’s public school system.

The Discover Christian Schools website reports getting thousands of hits daily from parents and others seeking information about alternatives to California’s public schools.

WND reported leaders of the campaign called California Exodus say they hope to encourage parents of 600,000 children to withdraw them from the public districts.


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