Peter Bronson: Home schooling: It’s in the fingerprints |

Peter Bronson: Home schooling: It’s in the fingerprints

Over the past few months, we have been following a California Court of Appeal case titled In re Rachel L. that threatened the rights of parents to “home school” their children. The court’s initial ruling appeared to criminalize most home schooling of children by non-credentialed parents.

The Court of Appeal’s decision created an uproar, and the Court granted a motion for rehearing of the case. The granting of the motion vacated the prior decision. In connection with the rehearing, the court invited a number of governmental and private parties to submit legal briefs.

In a 44-page ruling following the rehearing, the Court of Appeal has now reversed its prior decision, ruling that parents generally have a right to “home school” their children, but that a child can be ordered to attend school outside the home in order to protect that child’s safetyt. How the court arrived at that decision is a fascinating story.

The case involved a family that had required the repeated intervention of the Department of Children and Family Services over a 20-year period. The father physically abused two of his daughters, and a frequent household visitor sexually abused one of the girls. Dependency proceedings were initiated, but the parents were uncooperative and attempted to hide their children from the authorities. The parents were directed to allow social workers to interview the children, but the parents limited the social workers’ access to the children and coached the children not to talk with the social workers.

Although the mother (who had an 11th grade education) home-schooled the children, one of them, Rachel, believed she should attend public school.

The case initially went to trial before a dependency court, which rejected a request that the children be sent to public or private school as a matter of safety, and instead ruled that the parents had a constitutional right to home-school their children. Counsel for two of the children appealed to the Court of Appeal, which initially ruled that there was no legal right to home-school unless the person conducting the home schooling was a credentialed teacher.

Upon rehearing, the Court of Appeal has changed its decision while, at the same time, seeking a way to protect children who are the victims of abuse or other threats to their safety.

First, the court pointed that the California Education Code requires that every child aged 6 to 18 attend a “public full-time day school”, but makes two exemptions: Children may attend a “private full-time day school” or may be taught by a credentialed “private tutor”. The court ruled that a parent teaching a child in the home can constitute a “private full-time day school”, even if the only student or students are the children of the “instructor”.

In reaching that conclusion, the court acknowledged that the literal language of the Education Code seems to require that a private school consist of something more than a family unit. But the court pointed to several other factors which appeared to show the Legislature’s intent to allow home schooling.

First, the private school exemption requires teaching only by “a person capable of teaching,” whereas the private tutor exemption requires teaching by a credentialed teacher. Second, the Legislature enacted an uncodified law in 1991, providing that “private schools with five or fewer students” were exempt from certain reporting requirements, thereby suggesting that numerous home schools must have been complying with the reporting requirement. And finally, the court pointed to another section of the Education Code that requires all applicants for private school employment to submit fingerprints for criminal record checks except for “a parent or guardian working exclusively with his or her children.” This exemption of home schooling parents from the fingerprinting requirement seemed to reflect the Legislature’s clear intent to protect home schooling. From all of this, the court concluded that the Legislature has made it clear enough that parents have a right to home-school.

In a somewhat unusual discussion, the court acknowledged that it was influenced by the views of the Superintendent of Public Instruction, the State Department of Education, the Governor, the Attorney General and the Los Angeles Unified School District, all of which expressed the opinion that parents can qualify as a private school and teach their children in their own home.

And, even more startlingly, the court overruled earlier cases which had held that a home school cannot constitute a private school, on the ground that “the law’s growth in the intervening years” had left those cases “as a doctrinal anachronism discounted by society.” Noting that home schooling is “a growing practice across the nation” and that there are an estimated 166,000 home-schooled students in California, the court said that following these precedents “would undermine a practice that has been, if not actively encouraged, at least acknowledged and accepted by officials and the public for many years.”

In short, the court overruled legal precedent, and gave deference to legislative intent, the views of educators and the evolution of home schooling, to find a legal right – not necessarily a constitutional right – to home schooling.

The court did carve out an important exception to the right to home-school: If a dependency court concludes that home schooling threatens the safety of a child, it can order the child removed from home schooling. In the Rachel L. case, the contention was that because of the family history of abuse and neglect, it was necessary for the children to have regular contact with “mandated reporters” – i.e., teachers, who have a legal duty to report abuse. The court remanded the case to the trial court to consider whether the safety of these particular children necessitates removing them from home schooling.

The court did its best, given the lack of clear law, to come up with a set of practical rules to protect both home schooling and child safety. But the court acknowledged the need for legislation in the area. At the end of its lengthy decision, the court said: “Given the state’s compelling interest in educating all of its children, and the absence of an express statutory and regulatory framework for home schooling in California, additional clarity in this area of the law would be helpful.”

Peter C. Bronson, of Nevada County, practices in the areas of creditors’ rights, insolvency, business litigation and mediation. Write him at This column is not intended as legal advice in any specific business situation or dispute; specific strategic decisions always depend upon the specific facts.

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