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December 19, 2003
California member caught in truancy sweep

The thirteen year old son of a member family in San Diego has been ordered to appear in juvenile court to face charges of violating the city's day time curfew. The police officer who issued the citation to appear in court, indicated that he was conducting truancy sweeps.

At 12:30 p.m. on December 16 our member's child was riding his bicycle on his way to do some Christmas shopping. The officer was in plain clothes, driving an unmarked vehicle and stopped his vehicle after spotting the child. The officer inquired why he wasn't in school. The child informed the officer he was homeschooled and he was on vacation as the school was not in session. The officer informed him that it didn't matter, the child had to abide by the public school's schedule and since the public school was in session, the child was in violation of the daytime curfew.

The San Diego City daytime curfew provides that it is unlawful for a juvenile who is subject to compulsory education to be in public between the hours of 8:30 a.m. and 1:30 p.m. on any day when school is in session. Several defenses are set out in the ordinance. One is when the minor is in the company of his or her parent, or other adult, having the care or custody of the minor. Another defense is if the minor has permission to leave the school campus for lunch or a school-sponsored activity or has in their possession a valid school issued off-campus permit. There is no specific defense for enrollment in a private school or "homeschool."

Mike Smith, President of HSLDA and the attorney assigned to represent member families in California, spoke with the officer the day after the citation was issued in an attempt to persuade the officer to dismiss the citation. Mike informed the officer that the minor is enrolled in a private school independent study program and the private school is on Christmas vacation until the first of the year. Because his school was not in session, the minor was not in violation of the curfew. However, the officer's position was that the "school" referred to in the ordinance meant public school. Therefore, all children, even those enrolled in a private school are bound by the public school schedule.

At the trial, we will argue among other things, that the minor did not violate the curfew because his school was not in session. To read the curfew any other way would blur the distinction between private and public education and would render the law unconstitutional. Further, even if the court were to adopt the officer's position, the child had permission to leave the campus (his home) at the time of the stop.

This scenario demonstrates why HSLDA sued the city of Monrovia over its daytime curfew. In that case, homeschooled children were stopped dozens of times, but were not ever actually cited. Monrovia amended its daytime curfew ordinance to exclude homeschoolers after the trial court ruled that it was contrary to California law. After the city amended the ordinance, HSLDA renewed the suit on behalf of all children, not just those who are homeschooled. Both the trial and appellate court ruled that daytime curfews could apply to students in public school. The California Supreme Court declined to review the case.

We have taken the position that these curfews are in actuality truancy ordinances and therefore violate the preemption doctrine in California. This means that in California the State Constitution gives jurisdiction to the state legislature only to regulate truancy. It has done so through an intricate series of laws. San Diego has unconstitutionally created a new law for enforcement of truancy by linking its daytime curfew to school attendance.

The practical problem for homeschooling families living in an area with daytime curfews is that they have the chilling effect of restricting the flexibility of scheduling that homeschooling affords because we don't have to follow a strict schedule. One of the geniuses of homeschooling is flexibility. The ability to structure an education program around the individual needs of a child rather than around the needs of a group of students is a great contributing factor to the success of homeschooling. Daytime curfews thwart this flexibility.

We are continuing to examine cities with daytime curfews with the desire to successfully challenge the Constitutionality of these laws. If you live in an area that has a daytime curfew, it's likely that the curfew will be enforced as it is in San Diego. If your children are going to be out during the curfew hours and the public school is in session, they could be stopped. It would be wise to provide your child with something in writing indicating that the child is enrolled in (the name of your private school) and that he has permission to be in public. This may prevent an officer from issuing a citation to appear in court. If your child is detained or cited, please contact HSLDA immediately so we can take the appropriate action.