January 14, 2004
Victory For Homeschool Family In San Diego

On January 13, 2004, a San Diego Superior Court judge granted HSLDA's motion to dismiss the daytime curfew citation filed against the thirteen year old son of a member family. The citation was issued on December 16, 2003, when a San Diego police officer was conducting "truancy sweeps."

At 12:30 p.m. on December 16, the thirteen year old was riding his bicycle on his way to do some Christmas shopping. A plain-clothes police officer stopped the child and asked why he wasn't in school. The child told the officer that he was homeschooled and that he was on Christmas vacation. The officer replied that it didn't matter, he was required to abide by the public school's schedule.

The San Diego daytime curfew ordinance 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 for that juvenile."

Mike Smith, President of HSLDA and the attorney assigned to represent member families in California, spoke with the officer the day after he issued the citation in an attempt to persuade the officer not to file the citation with the court. Mike explained that under the plain terms of the ordinance the boy was not in violation of the curfew because his school was not in session.

The officer disagreed with HSLDA's interpretation of the ordinance and said, "Tell it to the judge."

The citation required the boy and his parents to appear in court on January 13, 2004, to enter a plea. Under California law, however, there is a procedure called a "demurrer" that allows a motion to be filed to dismiss the charge before entering a plea.

HSLDA litigation counsel, Jim Mason, filed a demurrer, which raised two related arguments.

First, the officer had actually cited the boy under the wrong subsection of the ordinance, the one that applied to children enrolled in "alternative education programs." Under California law, an "alternative education program" has a precise meaning. It does not include private schools. It refers only to public schools that are created especially to deal with children who are not otherwise succeeding in the regular public school, often for disciplinary problems.

Alternative schools frequently follow schedules that are different from the regular public schools. A child attending a public alternative education program may be required to be at the school building only two or three days a week. But under the San Diego ordinance they are nevertheless required to abide by the curfew whenever the regular public school is in session.

Because private school independent-study programs are not "alternative education programs," the officer had cited the boy under the wrong subsection of the ordinance, one that simply didn't apply to him.

Our second argument asserted that even if the officer had cited the boy under the correct subsection, the one that applied to students enrolled in private schools, the citation was still invalid. The San Diego ordinance only applies to private school children (and those in the regular public schools) when "school is in session for that juvenile." Because the boy's private school independent-study program was not in session on December 16, by definition there was no violation.

California court rules require a judge to rule on a demurrer before requiring the entry of a plea. Before opening court to the crowded docket normally associated with such juvenile court arraignments, the judge called the member family into his courtroom. He advised them that he'd read the demurrer and had decided to dismiss the citation.

While he expressed disagreement with HSLDA's argument about "alternative education programs," he agreed that because the private school was on vacation, the curfew did not apply to the thirteen year old boy. He dismissed the case without further discussion or argument.

This case demonstrates the importance of having an attorney familiar with the issues surrounding homeschooling involved in a case from the very beginning. If this family had simply gone to court and entered a "not-guilty" plea, the opportunity to file a demurrer would have been lost.

Further, the matter would have been set for trial, at which time the police officer, who was not present at the arraignment, would have appeared to testify against the family and explain his interpretation and application of the ordinance to the judge. It is also possible that an attorney from the city attorney's office would have been present to prosecute the case.

Because HSLDA was involved from the outset, the case was dismissed before it even began.

Please contact HSLDA immediately if your child is stopped or cited for violation of a daytime curfew.