A Look back at the Great California Homeschool Case of 2008

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The following article was adapted from a speech given at the Christian Home Educators Association of California's Capitol Day in Sacramento on January 30, 2020.

I have been asked to tell a tale of long ago; a tale from a strange, faraway land; a land that time forgot; a land not-so-affectionately known around the world as “La-La Land.” I tell you this tale so you and your children will remember and pass on to future generations that liberty is precious, fragile, and always in need of champions and plain, honest folk.

In those misty days of yester-year, way back in 2008, in that gaudy-glitzy land filled with Holly and Wood, a great injustice befell the people; that rare breed of self-reliant we-the-people; independent-minded, loving people; people with families of unusual sizes where all the women are strong, the men are good-looking, and the children generally score well above average in nationally normed standardized achievement tests. Those grand people whom the history books refer to as homeschoolers.

Yes, in those dark days, without word or warning, the LA King’s Court—a real court, not the hockey team—the LA King’s Court unexpectedly issued a proclamation.

“Thou shalt not homeschool.”

Astride fire-breathing black chargers, the King’s Court couriers posted this dark proclamation in town squares across the land. From Yreka to San Ysidro, denim-clad mothers gathered their ducklings and instructed them not to say they were “homeschooled” but instead to tell inquisitive strangers, “I attend a small private school, really, I do.”

After a few seconds of eerie silence, a great hue and cry went out across the land. “Who will save us from this deplorable decree?”

Meanwhile . . .

Far away from this ill-fated California kingdom, high atop a sun-dappled blue ridge mountain, a band of humble knights-errant, noble paladins—manly middle-aged men, who were pure of heart and generous in girth—reclined on full caseloads around their campfire, eating torts and filing their legal briefs to razor sharpness.

When suddenly, out of the western sky, an out-of-breath California carrier pigeon alighted on the shoulder of Big Chief Knight, Mike the Farris (also called Mike the Fearless, and known to some as Mike the Facebook Man).

“Mike,” the pigeon exclaimed, “We’we habbin’ a weawwy big pwobwem.”  (California carrier pigeons are notorious for lisping—or else that is what my three-year-old granddaughter Lucy says when Herbie the Boston Terrier gets off his leash).

But no matter . . . The Golden State was habbin a weawwy big pwobwem.

Mike the Fearless Farris FaceBook Man scornfully cast his half-eaten vanilla tort (he hates chocolate) into the smoldering campfire. He thrust his finely honed legal brief skyward, drawing crashing thunder and flashing lightning, and shouted in his best stentorian Braveheart voice, “Hizelda-MEN” (that’s what he calls us, get it? H-S-L-D-A, HSLDA-MEN. Anyway . . .)

“HSLDA-MEN, make haste! We away after evensong!” (He talks like that, all Cecil B. DeMille/Charlton Heston dramatic.) “On the morrow we shall be in the Land of the LA LA!”

And that, boys and girls, is how I imagine the beginnings of the Great California Homeschooling Case of 2008.

And in truth, it is not very far off.

Back Story

How, you may rightly ask, did a published opinion of the California Court of Appeals that outlawed homeschooling come to pass, without anyone in homeschool-land knowing it was about to happen?

I learned about the case on Friday, the day after it came out. I was on vacation in Oregon when my colleague sent me the case by email with these understated words, “Is this as bad as I think it is?”

Reading the opinion and its unpublished companion opinion that came out the same day, here is what I learned.

A teenage girl in LA County ran away from home, alleging mistreatment. There had been a trial, and the juvenile court agreed with and took jurisdiction of the teenage girl. There were two younger children in the home, and even though there were no allegations regarding them, the juvenile court took jurisdiction of them, too, but left them in the home of the parents under Child Protective Services (CPS) supervision.

The parents homeschooled the two younger children, and the quality of the education was not an issue. But the children’s court-appointed attorneys from the LA Children’s Law Center asked the juvenile court to make the parents send the younger kids to a traditional school—for their safety.

The juvenile court denied the Law Center’s motion, saying the parents had a constitutional right to homeschool. And here’s where the trouble begins.

The parents appealed the finding about the teenage girl, and the Children’s Law Center appealed the homeschool ruling. And because this was all in juvenile court, it was not publicly known that the case even existed.

The parents had a court-appointed attorney who specialized in juvenile court appellate cases. He did a credible job arguing the constitutional issues, but he obviously did not understand the ins and outs of California homeschooling law.

So, on that fateful day—February 28, 2008—the court of appeals issued two opinions. In the unpublished opinion, the court of appeals upheld the juvenile court’s decision to take jurisdiction. Even though it was “unpublished,” it was publicly available; in this context, “unpublished” only means that it had little or no legal application beyond this one family.

The published opinion, on the other hand, had broad legal application to every homeschooler in California—in it, the court said that homeschooling in California was illegal and had ever been thus.

Turner

Which takes me all the way back to 1953. In California, there is no “homeschooling” statute per se. Homeschooling is lawfully conducted under the auspices of the private school statute here, as it is in several other states.

Way back in 1953, the Turners were prosecuted for truancy. They defended the charge by saying they were actually a little private school. They lost their case, but their name became a burr under the saddle of later homeschooling generations because their case was published. It said that single families could not create little private schools for their own children.

The California Court of Appeals in 2008 relied heavily on the Turner case from 1953 and was apparently oblivious that tens of thousands of California kids were being homeschooled in 2008—and had been since the late 1970s.

The main thing I knew when I finished reading the 2008 homeschooling case in my mother-in-law’s home office in Oregon was that the court did not know what I knew about Golden State homeschooling law. There were two reasons for that:

1. The family’s court-appointed appellate lawyer didn’t include in his brief the legal golden nuggets I knew were tucked away in the California statute books; and,
2. It wasn’t really his fault, because the California statute books had been sprinkled with pro-homeschooling nuggets in unexpected places; if you didn’t know they were there, you wouldn’t look for them—and anyway, you needed a map to find them.

And I had the map.

Better yet, I knew the guys who salted the statute books with those golden nuggets in the first place. More about Family Protection Ministries in a minute.

A Movement Begins

So what happened between 1953 and 2008? First and foremost, a small-but-growing number of parents all over the country began leaving the public schools to teach their own children. Some did it for religious reasons. Others did it for educational reasons. Some were evangelical Christians, and some were hippies. And a few were both!

This growing movement was ignited in 1979, when James Dobson interviewed the late Dr. Raymond Moore on his Focus on the Family radio broadcast. Dr. Dobson later said, “I consider Dr. Raymond Moore to be the father of the modern homeschool movement.” Among those listening were two dads: Mike Smith, who lived here in California, and Mike Farris, who lived in Washington State.

As a result of hearing that radio broadcast, they and their wives both began homeschooling their own children. And because they were lawyers, they soon found themselves helping others who were facing legal challenges because of homeschooling. The two Mikes later founded HSLDA in 1983 as the homeschooling movement exploded, which, in turn, led to an explosion of legal challenges all around the country.

The private-school statute in California, by its plain terms, does not prevent parents from forming a private school for their own children. But that pesky Turner case was still on the books, and unless you squinted real hard, it still seemed to say homeschooling as a private school wasn’t legal.

As was happening all around the country, more and more people in California began to homeschool in the face of legal ambiguity and often-hostile public authorities.

Pioneering California homeschoolers simply followed the private-school statute by filing an annual affidavit. And because prosecuting truancy in California was difficult and time intensive for school officials, especially those that had to deal with a lawyer like Mike Smith, over time, homeschooling as a practice became grudgingly accepted—although legally, it was still disfavored by the bureaucracy.

Which brings me to Family Protection Ministries.

Family Protection Ministries

We stand here in Sacramento, the state’s capital. As you all know all too well, there are legislators here, and they are thinking up new laws all the time—year in and year out. It never ends. Someday, you might think we’d have enough laws.

Some of the laws they think up have little to do with homeschoolers. But some of the laws they’ve thunk up over the years do affect private schools. And because homeschools are technically small private schools, those thinked-up laws could have had bad consequences for homeschoolers.

When I first came to work at HSLDA in 2001, I soon met Roy Hanson, and Jim Davis of Family Protection Ministries. In those years, the legality of homeschooling was still ambiguous, and Superintendent of Public Instruction Delaine Eastin and her general counsel Carolyn Pirillo rattled their chains periodically, telling everyone who would listen that Turner was the law of the land.

Jim and Roy, and now Nathan Pierce, epitomize for me the value of the quiet warriors who keep homeschooling free—often behind the scenes—without fanfare or public acclaim. As Family Protection Ministries, they monitor legislation, have relationships with legislators, and work with HSLDA and all the homeschooling groups in California—especially CHEA—to keep a unified front against unneeded regulation.

But the greatest gifts Jim and Roy left to future generations of homeschooling families—and to lawyers like me—were the many golden nuggets they deposited in the statute books through quiet diligence, consummate professionalism, and prayerful passion for the cause they so loved.

But the greatest of these golden nuggets involved—fingerprints.

Delaine Eastin’s Goodbye Gift

In 2002, due to term limits, Delaine Eastin could not run for a third term as superintendent of public instruction. As a parting gift to homeschoolers, though, she wrote a letter to every Assemblyperson and Senator, urging them to do something about the horrible crisis in California of thousands of parents teaching their own children at home, especially because the vast majority of them were not—GASP—certified teachers!

Oh, the humanity!!!

Delaine Eastin included with her letter a tedious legal brief written by her general counsel, Carolyn Pirillo. It recounted the history of the private-school statute from inception through 2002. It featured heavy doses of Turner and concluded homeschooling under the private-school statute had never been legal.

I call her legal brief “tedious” because I thought it was really well done. (I hate it when they do that!) It appeared to leave no stone unturned. But I was new to the California wars and was playing catch-up. When Mike Smith asked me to help him write a response, I said a quick prayer asking the Lord to send me a lifeline because, as I told the Lord, “I got nothing.”

Oh, I could make the standard arguments, and they might work, but I also felt that they might not work.

The Lord answered my prayer, and, as my lifeline, he sent me Roy Hanson, Jim Davis, and Family Protection Ministries.

Mount Rushmore

After I had read the letter and the memo, Mike Smith convened a phone conference pow-wow with Roy and Jim. I sat in the chair across from Mike’s desk, listening to the discussion on speaker phone. I remember what happened during that call as if it were yesterday. That moment goes on my Mount Rushmore of great legal “ah-hah!” moments in the history of legal beagle Jim Mason.

As the rookie on the call, I mostly listened. They talked tactics, they talked relationships, they talked allies. Back and forth they went, weaving a tapestry of the rich history of homeschool advocacy in California since the early eighties.

Then Jim Davis said something like, “And back in 1998 we amended the fingerprint statute to exclude parents who were teaching their own children.”

As the conversation rolled on, I hit the replay button in my brain, then interrupted, “What was that about a fingerprint statute?” I asked, “What’s the citation for that statute?”

While they continued talking, I walked over to Mike Smith’s bookshelf, which is still in exactly the same place today as it was in 2002, and pulled the correct volume of Deering’s California Code from the same shelf it sits on today. I discovered that people who have contact with children in private schools must have a Department of Justice background check, beginning with fingerprints, except that “this section does not apply to . . . a parent or legal guardian working exclusively with his or her own children.”

Oh, Those Golden Nuggets

“Eureka!” I shouted in my head.

Carolyn Pirillo’s watertight memo had just sprung a leak. She had not discussed this statute at all. The pow-wow had rolled on to new topics when I asked Jim Davis to tell me more about the fingerprint statute and the exclusion for parents working with their own children.

He explained that a janitor at a public school had killed a student. The employee had a criminal history, but at the time, only public school teachers were required to get fingerprint-based background checks. In 1997, the legislature extended the fingerprint requirement to public school employees beyond teachers, and for the first time included private schools.

Believing that it did not make sense for homeschooling parents to get criminal background checks to operate a private school for their own children, and because—if the statute was not changed—it could potentially present a legal threat to homeschooling parents, Family Protection Ministries went to work.

Quietly, behind the scenes, without drama or publicity, they got the statute amended in 1998 to exempt homeschooling parents from the fingerprint requirement. They told me of other places over the years where they had made sure that laws affecting private schools would not apply to homeschool private schools.

Golden nuggets abounded.

And none of them were in the increasingly less-and-less tedious Carolyn Pirillo memo.

The fingerprint exemption became our legal proof that the 1998 California legislature did not agree with the 1953 Turner case. If parents could not lawfully teach their own kids in little private schools, why would the legislature exempt them from the fingerprint requirement? The fingerprint exemption became the centerpiece to the letter Mike Smith sent to every legislator in response to Delaine Eastin’s parting shot.

After much Sturm und Drang, Delaine Eastin left office on January 5, 2003, without achieving her goal of bringing homeschoolers to heel. She was replaced by Jack O’Connell, who publicly stated that he supported the right of parents to homeschool.

And peace returned to the valley.

DENIED . . . I Mean . . . APPROVED

But the Eastin-Pirillo legacy lived on, in an obscure kind of case that I never anticipated; and the fingerprint exemption kept paying dividends.

When a family received Temporary Assistance for Needy Families, or TANF, they received a certain amount of money for every child under the age of 16. The aid could continue after the age of 16 if the child remained in school. TANF was administered in California, county by county, under the auspices of CalWorks in the Department of Social Services.

 So guess what? When homeschoolers who were receiving TANF turned 16, county CalWORKS offices pointed to the Eastin/Pirillo leaky memo of 2002 and stamped the applications: DENIED.

For the next few years, my colleagues and I trotted out the fingerprint exemption argument in CalWORKS offices all around the state. I personally attended administrative hearings in a bleak Social Services office in Modesto and a cramped little office on Mission Street in San Francisco.

We never lost one of these cases—sometimes the administrative hearing officer relied expressly on our fingerprint exemption argument—and the head of the Department of Social Services stamped all those decisions: APPROVED.

Exercise

Each time we made this argument, we could bolster it in the next case with a copy of the previous judgment stamped: APPROVED. These little obscure cases were like exercising. The more we did them, the stronger and more muscular our argument became. And each win added to the pile of quasi-judicial officers who agreed with us that homeschooling was legal.

It may seem odd to you that HSLDA would devote so much attention to these little obscure cases in out-of-the-way places to secure TANF payments for homeschooling families.

Part of the genius of Mike Farris and Mike Smith, in the creation of a non-profit, public-interest law firm devoted exclusively to protecting and advancing homeschool freedom, is that it allows us to devote big-firm resources to what may seem to be small-time cases—at no expense to the families in need.

This allows us to pursue a “broken-windows” approach to homeschool cases. Broken-windows policing says that devoting attention to small crimes helps to create an atmosphere of order and lawfulness, thereby preventing more serious crimes.

So too with small homeschool cases. Zealous defense in the small homeschooling cases helps prevent them from becoming big homeschooling cases.

Which brings me back to February 2008.

Back in the Office

The homeschooling case known as Rachel L caused HSLDA to go to the nonprofit equivalent of DEFCON 1. Back in the office on Monday, we tried to get a handle on what had just happened, how it happened, and most importantly, what could we do about it.

A more careful reading of the opinion revealed that to achieve its goal of having the court order the kids into school for their safety, the Children’s Law Center also trotted out the old Eastin-Pirillo leaky memorandum. In other words, they argued that even if you did not agree that the home was unsafe, they shouldn’t be allowed to be homeschooled because it was simply illegal—not just for this family, but for everyone.

Delaine Eastin’s parting shot never seemed to run out of ammo.

As the word made its way around California and the rest of the country, we were inundated with calls and emails, all of them saying essentially the same thing, “Houston, we’we habbin’ a weawy big pwobwem!” Homeschoolers were worried that as goes California, so goes the country.

Here’s what we learned.

The court-appointed appellate lawyer who represented the dad in the Court of Appeals did not want HSLDA’s help. My impression was that he may have thought we were glory seekers from DC, trying to horn in on his gig. In as nonthreatening a manner as I could muster, I suggested he could submit a petition for rehearing that was based on my golden-nuggets arguments. Clearly the court of appeals had not been presented with those arguments, I gingerly pointed out, and we only had 15 days to submit the petition.

When I offered to write it for him to sign, he replied, as if I were an ignorant little schoolboy, that petitions for rehearing are never granted. Mostly true, I thought, but this case could be the exception that proved the rule. And, I thought, you have not because you ask not.

He said the only thing to do was to ask the Supreme Court of California to take the case, and he would welcome a friend-of-the-court brief from HDLAS (or whatever the heck we were) when the time came. He was not alone. Every non-HSLDA, homeschool-savvy lawyer we talked to that week suggested we give it up and start preparing for the Supreme Court.

In the meantime, the news about the Rachel L case continued to grow. We received many suggestions on what to do next, ranging from novel to interesting all the way to the unprintable. To relieve some of the anxiety and to give people something constructive to do, we set up an online petition, which quickly acquired hundreds of thousands of signatures.

Tick-tock!

And the legal clock just kept ticking. We prayed a lot during that first week.

On Saturday, Mike Smith and I sat in his office, knocking our heads together, trying to figure out some way to do something positive, NOW. But we did not have a client, and the only client worth having had a lawyer, and it would be unethical for us to try to go around the lawyer directly to the client.

As we complained about how frustrating this was—knowing what to do but having no way to do it—Mike Smith’s phone rang. The voice of Mike Farris excitedly said, “Gary Kreep is at this conference with me and he just told me that the dad had asked Gary to take over the case.”

Gary Kreep is a conservative-cause-oriented lawyer in the San Diego area. I had worked with him in my previous job with the general counsel of National Right to Life Committee. Gary explained to Mike Farris that he knew we were the experts on homeschooling law and welcomed our help behind the scenes.

By Tuesday night, we had written the petition for rehearing. I did the golden-nuggets section and Mike Farris focused on the constitutional-law section. My goal in every legal brief is to win the case in a well-crafted introduction. This is part of what we wrote in the introduction:

Before we left for the night, Mike Farris received a call from a California reporter, who asked for a comment about Governor Schwarzenegger’s pro-homeschooling statement. A quick google search revealed that then-Attorney General Jerry Brown had also made a pro-homeschooling statement.

Not bad having the Terminator and the Moonbeam both on your side.

But we were not out of woods yet. Technically, Gary Kreep had to do some paperwork to substitute himself for the court-appointed appellate attorney, who was not making it easy. Gary surfed up and down I-5 several times that week, obtaining wet signatures from the client and the attorney and filing them in the court.

While he did that, I sent our brief to an old-timey appellate lawyer in LA. He mostly focused on death-penalty cases at this stage of his career, but he had a sterling reputation, and he knew the three judges who had made the homeschooling ruling, having appeared before them many times. I asked him carefully to review the petition for tone, because it is a delicate matter to ask three experienced appellate-court judges to give you a second crack at a case, especially when your main argument is that they completely whiffed on the applicable statutes.

He said he would not change a word and offered to take care of all the details of filing the petition, which he did.

Then we waited.

A few days later, Gary Kreep called me on my cell phone as I was driving my kids to soccer practice. “They granted the petition,” he shouted, “I just got word, they granted the petition.”

As I relayed the news by phone to Mike Farris and Mike Smith, I lamented the fact that while everyone else was jumping and shouting in celebration, there I was, stuck in traffic, held firmly down by a three-point restraint.

But I got over it.

Take a Vacation

When a petition for rehearing is granted in California, the earlier opinion is vacated. That means it is as if it never happened. The court ordered new legal briefs from all parties, and because of Gary Kreep, HSLDA could play a major role in writing the main brief—as in, we could write the main brief. Alliance Defending Freedom (ADF) also joined the team and worked tirelessly reviewing and improving our work. With the extra time and the extra pages that allowed far more than what is permitted in a petition for rehearing, we could mine those golden nuggets for all they were worth.

From the moment the petition for rehearing was granted, the case took on a life of its own. Because we had beaten back the initial attack, there was time for reinforcements to join us at the front. As we and ADF worked on the main brief, we also began coordinating friend-of-the-court briefs from members of Congress, other legal advocacy groups, the Seventh Day Adventists, ideologically diverse California constitutional-law professors, and many others.

And without even asking us if it was okay, Attorney General Moonbeam, on behalf of Governor Terminator, wrote a nice brief supporting the legal right to homeschool in California.

But one of the most important friend-of-the-court briefs to be written was styled as the “Homeschool Group amici.” It consisted of Christian Home Educators Association of California, Christian Homeschool Network, and HomeSchool Association of California. Each of these groups had their own big-name law firm representing them pro bono, because those firms had lawyers who homeschooled, and the firms got credit for the pro-bono work. Together, these three groups spanned the ideological and religious diversity of the homeschool movement in California. While they disagreed about the whys and wherefore of homeschooling, they were united in their commitment to homeschool freedom.

Lawyers as Far as the Eye Can See

Sensing the bigness of the case, the appellate court did something unusual. Normally, each side in an appeal gets around 15 minutes for oral argument. In this case, the court ordered one hour per side, and left it to the parties to allocate the time among all those who submitted briefs.

On the day of argument, five lawyers for each side split the time. I think it safe to say that it is unlikely I will ever again attend an appellate oral argument where ten lawyers address the court. Our very own Mike Farris batted cleanup for the good guys, because he was best suited to fill any gaps and to correct any gaffes.

From the gallery, I studied the judges as the argument progressed. It’s foolhardy for lawyers like me to try to dope out how judges will vote from the way they behave during oral argument, but we all do it anyway.

It seemed to me that they were more attentive to the bad guys’ arguments and took more copious notes during them. They seemed to be tolerating the good guys by letting them speak for long stretches, uninterrupted. It was almost as if the court had decided to make sure we could not later be critical about any limits being placed on us before swatting us down.

I was not alone in my gloom. But all we could do was wait. For 90 days.

Unlike most state courts, where judges release their opinions when they are good and ready, there is a rule in California. Apparently, California judges of the past did not get good and ready for a very long time. So, in 1974, Californians amended the California constitution to say:

“A judge of a court of record may not receive the salary for the judicial office held by the judge while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision.”

That’s right. If judges wait more than 90 days to release their opinion, California will wait to release their paycheck. Appellate court judges respond well to sticks and carrots, just like everyone else.

High Noon

We had figured out that 9 a.m. Pacific time is when most opinions get posted so we knew to start looking at 12 p.m. eastern time. Ninety days later, August 8, 2008, Mike Farris dreaded the approaching High Noon so much, he drafted a press release expressing disappointment that we lost the rehearing but vowing to fight on. When the clock struck twelve, Mike Smith, Mike Farris, and Jim Mason sat in front of their computers in their own offices, constantly hitting refresh on the appellate court’s decision page.

After a few refreshes, the page changed. Immediately, that uncomfortable warm feeling that starts at the back of your neck and rises up through your face when you’re embarrassed or startled nearly paralyzed my clicker finger.

Species?

Scroll down, scroll down, scroll down—there it was, now called In re Jonathan L after the boy who was still at home. Click the link—scroll down past the legal mumbo jumbo, scan, scan, scan—and then these words, mercifully in the second sentence of the opinion:

We will conclude that California statutes permit home schooling as a species of private school education.

“Wait a minute,” I thought. “We won?” Then, “WE WON!” I raced down the halls of our quiet little law firm, jumping and shouting, “WE WON, WE WON.”

Celebration ensued.

With tears and laughter, and with praises for the Lord, who looks after the homeschool movement, we told and retold all the war stories of the Great California Homeschool Case of 2008.

And Mike Farris rewrote his press release.

The same three judges who, on February 28, said homeschooling is illegal in California completely reversed themselves on August 8. I think it took me a week to read past that glorious second sentence.

As in the days of old, when Delaine Eastin left the department of education in 2003, peace returned to the valley.

Conclusion

I am here today so you will know just how much goes into defending the cause of homeschool freedom. If not for Roy Hanson and Jim Davis and Family Protection Ministries, there would not have been any golden nuggets in the California statutes. If not for HSLDA’s commitment to diligently defend the small cases, we would not have had the training and muscles ready to deploy overnight when the big case came out of the blue. If not for CHEA and other homeschool groups, homeschooling would not have had such a good name that the Governor and Attorney General would join the cause of homeschool freedom.

We do not know when the next threat to homeschool freedom will occur or what form it will take.

But here is what I do know:

HSLDA is still here.

Family Protection Ministries is still here.

CHEA is still here.

And most importantly: Dedicated homeschool families like you are still here!

Together, we will tackle any obstacle; together, we will climb any hill; and together, we will face any challenge to ensure the blessing of homeschool freedom is passed on to our children and grandchildren and to future generations.

God bless you all, and God bless America.