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Homeschooling Is Legal, and Here’s Why

by Mike Smith • December 5, 2017

In 1983, two very important events occurred that ultimately led to homeschool freedom in California and across the nation.

First, we began asserting there was another legal way to homeschool in California other than the private tutor exemption.

Next, Home School Legal Defense Association was founded.

Both events took time to bear fruit.

Another Look at the Law

Homeschooling via the private school exemption was developed because of a major problem with the private tutor provision, which the public school establishment and many prosecutors argued was the only legal way to homeschool. The tutor had to be certified to teach in California—for every grade that was being taught! This eliminated at least 95% of potential homeschooling families.

We looked closely at the private school option, and decided we could fit a homeschool within that exception.

It seemed straightforward. The parents had to be capable of teaching; the instruction had to be in the daytime and in English; the courses had to be ones commonly taught in the public schools; attendance had to be kept in a journal. In addition, the administrator of the private school had to file an affidavit each year recording certain information such as the school’s address, the identities of the persons in charge, and the number of students.

We argued that any family desiring to homeschool could fulfill all these requirements; therefore, homeschools could qualify as private schools and would be legal.

There were two immediate problems.

In a pair of California cases, parents had made this argument and lost. I performed some legal sophistry in arguing why these cases were good law for homeschooling. But at this time a majority of school districts and the civil servants within the California Department of Education (CDE) did not agree with our position.

Robert Ponce of the CDE sent a letter to every school district in California telling the truant officers that this thing called homeschooling, which some parents were claiming to do, was not legal unless the teacher was certified. He also urged attendance officers to go after non-certified homeschooling parents using all the power of the state to prosecute and stop them.

A Question of Intent

This caused quite a bit of alarm in the homeschooling community. Assemblyman Bill Jones, a friend of homeschooling, contacted Superintendent of Public Instruction Bill Honig, asking him what the official position of the CDE was. Honig replied, “I have no intention with interfering with the homeschool preferences.”

This was good news, though it really meant the CDE didn’t want any part of this brewing conflict.

And the fight was still mostly on the local level because truancy is enforced by individual school districts, not the CDE. Also, at this time, private school affidavits were being filed with county offices of education when they were supposed to be sent to the CDE.

Later that same year, we received even more confusing information from the state level, when the CDE’s Jerry Smith issued a policy stating homeschools could operate as private schools only if they did so as a business. The implication was that parents couldn’t establish a private school in their home, but a “real” private school could operate a satellite homeschool program.

Advocacy Goes Nationwide

On a more positive note for the national movement that year, Michael P. Farris—a homeschooling dad, attorney and religious freedom advocate—founded Home School Legal Defense Association in March of 1983.

Mike lived in Washington state, and the legal climate for homeschooling there was very similar to what we were experiencing in California. Mike asked me to become a board member and help get the organization going. I agreed, and in 1987 I started working full-time at HSLDA.

HSLDA’s mission was (and still is) to establish and protect the fundamental, God-given right of parents to direct the education of their children by homeschooling. By forming an organization with homeschooling families as members, we hoped to have the resources to provide quality legal representation in all 50 states and be a voice for homeschooling in Congress and the state legislatures.

That mission has been partially fulfilled in that homeschooling is legal in every state and oversight is generally not oppressive. However, the battle still rages today to maintain the freedom that homeschoolers have won in years past.

History matters: From the beginning, we’ve argued that homeschooling is a fundamental right protected by the Constitution. The trick is getting states to recognize that right in a way that is fair and free of excessive red tape. The method we latched onto in California is to have parents officially establish a private school in their homes. It’s still the No. 1 way to homeschool in the Golden State.

For many years homeschooling has been free—and has stayed free—in California because of sacrifices by families like yours. You can protect liberty for the next generation by giving to the Homeschool Freedom Fund.

Mike Smith

HSLDA President

Mike Smith is an attorney, speaker, and homeschool movement leader with over 30 years of passionate advocacy for homeschooling families. Read more.