13 Years Ago, This Case Made Homeschooling Legal in California

On August 8, 2008, California’s Fourth District Court of Appeals declared homeschooling legal in the case of In Re Jonathan L. 

For the first time in the Golden State’s history, the court ruled that homeschooling was part of the private school exemption from public school attendance. (Homeschooling was not then, and still is not, mentioned specifically in California law.)

A quick history: how homeschooling grew despite uncertain laws

Despite the legal uncertainty prior to the Jonathan L decision, homeschooling grew as a grassroots movement embraced by thousands of families across the state, strengthened by the legal representation of HSLDA, the advocacy of Family Protection Ministries in the legislature, and the grace of God.

Many families in California operate their homeschools as private schools, in order to comply with compulsory attendance laws. There has always been another way to homeschool—the tutorial option—but it requires the teacher to be licensed by the state of California. And most parents who homeschool are not certified teachers.

So, for the vast majority of homeschoolers, the only realistic option for satisfying compulsory school attendance laws has been the private school option.

Against all odds

But this option wasn’t available until the In Re Jonathan L victory, so for all the homeschool families who homeschool as private schools, this case was truly miraculous.

In Re Jonathan L was also important for the rest of the country. As I noted in my book The battle for homeschool freedom in California, with this state’s reputation as a trendsetter, any homeschool restrictions imposed there could quickly catch on in other states.

The family in Jonathan L were not members of HSLDA, nor did we know about the case until the court’s initial decision was announced in the media on February 28, 2008. We were shocked and very concerned to learn that the Fourth District Court of Appeals sitting in Los Angeles had ruled that homeschooling was illegal except under the tutorial method.

Then the attorney hired by the family to overturn the decision contacted us. Having worked with us before, this attorney asked us to participate in the case.

So we prepared a motion to have the court reconsider its opinion based upon some facts and law that were not presented on behalf of the family at their trial or upon appeal. Realistically, the odds of getting a court to vacate their previous decision and start all over was slim to none—and slim was riding out of town.

Where the miracle began

But on March 25, the court vacated its bad decision and scheduled a date for oral argument and a deadline by which all legal briefs, both supporting and opposing, must be submitted.

Recognizing that Jonathan L would determine the legal fate of homeschooling in California, the court also invited any organization that had any interest in the matter to file a friend-of-the-court brief. They wanted to hear from as many sides of the issue as possible.

Immediately, homeschool organizations across the state—including Family Protection Ministries (FPM) and Christian Home Educators Association of California (CHEA)—got busy and filed briefs asserting the legality of homeschooling. FPM’s and CHEA’s briefs specifically highlighted the perspective of religious freedom.

In total, over 15 briefs were filed in support of homeschooling as an option under the private school exemption. Only two briefs were filed against.

Some of the briefs supporting homeschooling came from unexpected sources: Governor Arnold Schwarzenegger’s office, attorney general Jerry Brown’s, and the California Department of Education. Even the brief from the Los Angeles Unified School District—historically an opponent of homeschooling freedom—was helpful because it didn’t argue against private homeschooling.

A surprising turnaround

On August 8, after taking 90 days to deliberate following oral arguments, the court issued its definitive ruling that homeschooling is legal under the private school statute.

Because the term “private full-time day school” in § 48222 of the California Education Code was so vague that it could refer to a traditional private school or a homeschool, the appellate judges needed to look to the legislature and previous cases to try to glean the intent behind the language.

On the one hand, in two previous cases—People v Turner and In Re Shinn—courts had ruled that homeschooling was not legal via the private school exemption. Since these decisions, the California legislature had not passed any legislation regarding homeschooling, leaving a legal presumption that the legislature had acquiesced to the rulings in Turner and Shinn—not good.

Fortunately, the court did not stop there. The judges looked at other ways the legislature had addressed homeschooling, and they determined that lawmakers had acted as though homeschooling was permitted in California. And the court observed that the Department of Education was not only aware that homeschoolers were filing private school affidavits, but it even accommodated them by providing for different treatment of private schools with fewer than six students—presumed to be homeschoolers.

Silver bullet

Looking back, the court recognized several ways the legislature had quietly recognized homeschoolers operating under the private school statute. This one in particular was the silver bullet: 10 years before In Re Jonathan L was filed, the legislature specifically exempted “a parent or legal guardian working exclusively with his or her children” from having to be fingerprinted, which was required of all other private school personnel. Family Protection Ministries had provided this language and convinced the author of the legislation to exempt homeschoolers.

In a yet another law—this one related to hazardous emissions within 1,000 feet of a school—the legislature again exempted from the definition of a school “any private school in which education is primarily conducted in private homes.”

The court found it extremely significant that both California’s superintendent of public instruction and Department of Education agreed that it was legal for parents to qualify as private schools and teach their children in their homes. The fact that both the governor and attorney general also agreed was the icing on the cake.

In the end, the Fourth District Court of Appeals determined that the legislature, by its actions and inactions, had tacitly adopted the right of parents to homeschool as private schools in California. This miraculous decision settled the issue, confirming that homeschooling is a legal form of private schooling in California.

Because private schools are relatively lightly regulated in California, it is one of the best states in which to homeschool from a regulation perspective. However, because homeschools are considered private schools, any legislation addressing private schools will impact homeschoolers. So together, FPM, CHEA, and HSLDA remain focused on monitoring and responding to the California legislature, ready to act if and when lawmakers introduce private school legislation.

HSLDA stands in this same kind of partnership with state homeschool organizations across the United States. We encourage you to join your state organization: homeschooling in community and keeping homeschool freedom strong is key to making homeschooling possible for today’s kids—and tomorrow’s.