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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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