Note: The following does not constitute nor is it intended to be legal advice. HSLDA members should contact HSLDA regarding specific legal questions or contacts by public school officials.
To defend our liberties, we need to know the law better than our detractors. To do this effectively, we must stay informed and strategically take action when necessary.
Over the years, many counties and school districts in the state have incorrectly claimed that private home education is under the control of public-school officials. This is not the case! No private school laws have changed. We thank God that we still retain our freedom to privately educate our children at home under the private school exemption [EC §§ 48222 & 33190]. In addition, a few unelected bureaucrats with no (constitutional or statutory) law-making authority over private schools have either mistakenly or deliberately misstated the law as it pertains to private home educators.
No precedent-setting court cases have been decided against homeschooling in California. In fact, in 2008, a California Court of Appeal stated in their unanimous opinion that “California statutes permit home schooling as a species of private school education.”[1]
The following are examples of incorrect statements concerning private home education in California which have been sent out by various counties and school districts:
Government Approval
“You can’t teach your children at home without our approval, and we may consider taking legal action against you (i.e. a charge of truancy) if you attempt to. On the other hand—if you will join our public charter school or public-school ISP program, you will be legal and will receive many wonderful, free benefits.”
The Facts: This sounds a lot like something close to extortion and bribery. The public school will benefit financially if you enroll in their public charter school or public-school ISP program. The administrators and teachers of these programs personally benefit through their salaries and sometimes incentives for recruitment programs.
Many of the public-school charter schools and ISPs are run by professional, well-intentioned people who support home education and parents’ inalienable right to choose and direct the education of their child(ren). Some are very flexible and supportive of each family.
However, in a number of school districts and counties here in California, certain school officials are trying to make public charter schools and public-school ISPs the only legal means of home education.
Filing PSA ≠ Create Private School
“Simply filing an affidavit does not create a private school…” or “Filing an affidavit has no effect on the status of a person or institution; it does not transform a parent into a private school.”
The Facts: We agree that filing the affidavit does not create a private school. It simply attests to the information listed as required in E.C. §33190. Compliance with E.C. §§ 48222 and 33190 is all that is required of a private school, which is already made up of a teacher, students, and a course of study. The public school’s authority is specifically limited to verifying that a private school affidavit (a “paper”) has been filed. The public school does not have authority, without a court order, to inspect anything about the actual private school, including teacher(s), student(s), course of study, or any other item. The affidavit is simply a notification of operation, not an application for permission (or a license) to operate.
We file an affidavit not to “create a private school” but to attest in a written statement that we have already created a school previous to filing the affidavit. Filing the affidavit is a good faith effort on the part of the administrator of the private school which already exists to comply with state law [E.C. §33190]. No fee or in-person meeting is ever required to file.
You can read our article “Filing the Private School Affidavit” at www.fpmca.org/psa.
Compulsory Education Requirements
Private homeschooling does not fulfill the compulsory education laws of California, and private home instruction by persons who do not hold a valid state teaching credential is not an authorized exemption to the compulsory education laws of this state.”
The Facts: There are no legal terms in the Education Code such as “home school,” “home education,” or “private home instruction.” In legal terms, we lawfully operate a private school which happens to be based in the home. The Education Code requirements of a K-12 private school make no requirement of a particular kind of campus or size of student body, etc. There is also no requirement that a private school teacher must have a credential—only that the teacher be “capable of teaching” [E.C. §48222].
Teacher Qualifications
“Private school teachers should meet standards comparable to those required for public school teachers in similar positions, excepting only the credentials (California Attorney General Opinions, Volume 3, at page 193).”
The Facts: This approach gives up on the idea you need to have a teacher’s credential. However, the above could be misconstrued to mean that the private school teacher’s qualifications must be determined by a school official to be equivalent to a credentialed public-school teacher. This is incorrect for several reasons:
(a) The actual law [E.C. §48222] states that the teacher needs only to be “capable of teaching”—this does not mean a teacher needs teacher credentials or an equivalent.
(b) The determination of “capable of teaching” is made by the private school administrator, not by any public school official.
(c) An Attorney General’s Opinion is still just an opinion. An opinion does not have the force of law.
(d) Even for those who incorrectly believe it does have the weight of law—this cited Attorney General Opinion is immaterial because it was formulated in 1941 and 1943, more than 30 years prior to the current version of the private school law [E.C. § 48222: 1976, and E.C. §333190: 1976]. The Legislature has had ample opportunity to amend the requirement to read “equivalent” if that was their desire. They have chosen not to. According to our State Constitution, it is the Legislature that makes the laws, not the Attorney General or public-school bureaucrats.
School District Oversight
“Local school districts maintain the jurisdiction to verify the contents of the affidavit. They have the authority to determine whether the private school:
1. Provides adequate instruction in the several branches of study required to be taught in California.
2. Maintains records of the daily attendance of pupils,
3. Maintains a record of the educational qualifications of its faculty.”
The Facts: E.C. §48222 requires that a private school meets the above three conditions. But the private school is not under the authority of any public school official or entity for inspection, evaluation, approval or monitoring of any aspect of its records or operation. “Verification of the affidavit” means literally what the law states it is: to verify that the private school has filed an affidavit as required in E.C. §§ 48222 & 33190 – not to examine any information to which the affidavit attests or even to see any blank form that the private school may use to maintain the required records. No public school official at any level has the lawful jurisdiction, constitutionally or statutorily, to determine if a private school which operates in a home can be considered a “bona fide” private school. Neither do they have authority to monitor any (K-12) private school. The Legislature has created and maintained a clear separation between the public-school system and the K-12 private schools in California.
The school district may investigate truancy. However, a court of law following due process must make the determination of truancy. The school district (or any other part of the public school system) does not have any authority to determine or make a distinction between private schools operated in a home and those conducted on a campus site. Again, no such distinctions or terms exist in our state’s Education Code. Don’t be intimidated when you receive incorrect information like this, regardless of the official letterhead. Visit the FPM website at www.fpmca.org/LFS and familiarize yourself with the legalities of homeschooling in California.
Private Schools are a Business
“The characteristic of a private school is that it is a business. As such, it solicits enrollment from the public at large and must comply with all state and local laws applicable to the operation of a business.”
The Facts: This has no basis in law or court cases. If this were true, many campus-based private schools run by churches as nonprofit ministries would be illegal.
School Set-Up Requirements
“Private schools enrolling ten or fewer students shall file the following with their local school’s District Office:
a. Course of study offered by the institution
b. Daily schedule of subjects/classes
c. Record of attendance for every student
d. Standardized test results from Spring testing
The Private School Affidavit form must be signed by the Superintendent or designee to signify final approval of the request.
The County Superintendent of Schools reserves the right to revoke any Private School Affidavit. The owner of the private school, or its chief administrative officer, may appeal the decision of the Superintendent to the Board.”
The Facts: Neither the Board of a public-school system nor a public-school official has any authority over a private school. According to our state laws, items a., b., and c. are to be kept on file at the location of the private school offices (possibly your home) but these records are private and should not to be shared with any public official (public-school or otherwise) without a court order. There are no testing requirements (item “d.”) for private schools in California. There is no statutory legal provision for either approving or revoking a private school affidavit. Compliance with these unlawful alleged requirements could help establish a precedent which could endanger our freedoms.
The school district can verify the attendance of any particular student enrolled in a private school by contacting you as the administrator of the private school, or by contacting the administrator of the private school umbrella program (PSPs in which your child is enrolled. PSPs should keep the names of the students and parents confidential, not offering any information beyond what public school officials have a statutory right to. The school district can also contact you as the parent of your child to see if your child is enrolled and in regular attendance at a private school which has filed the Private School Affidavit as required by E.C. §48222 and E.C. §33190. You do not have to reveal the names of your children or the children in your school. If they already have the name(s), you can confirm their enrollment and regular attendance and the fact that you, as a principal, have properly filed the Private School Affidavit. Enrollment and regular attendance at a private (home-based) school of any particular student whose name they already have can be verified verbally or in writing by the principal of the private school.
Public School Exemption Approval
“If your program meets the above requirements [those listed in E.C. §48222: course of study, taught by person capable of teaching, taught in English, attendance records] and is approved by the District School Board, the students listed on your private school affidavit will be approved for exemption of attendance in the public school for the current school year. ”
In some school districts, questionnaires for home educators to complete have been sent to help satisfy the above and similar requests.
The Facts: A school board has no more authority over a private school than a public-school official has—which is none. Also, student’s names are not to be listed on your affidavit nor given to public school officials. You do not have to respond to their questionnaire, nor allow them into your house, nor answer their same questions over the phone or through email.
If you are a private home educator, you do not need to fill out questionnaires, return calls or emails, or attend appointments or meetings related to public school ISPs or public charter schools. You can politely ignore this type of demand, threat, or request.
If you are visited by a child welfare and attendance officer (a public-school truant officer) or other public school official, you are not required by law to let them come into your house, look at your materials, or question your child. It is always wise to be courteous and not to argue or be confrontational. Whether a home visit or phone call or other contact, ask them to send their questions, statements, and references to the Education Code in writing to you and that you will be happy to look at their questions or requests after receiving their letter. (Note: you are not promising to comply, but making a positive statement of “willing to consider.’’)
HSLDA members should immediately contact HSLDA if they receive the above kinds of contacts.
Sharing Teacher Qualifications
If requested, a private school satellite program’s administrator must send in a list of all teachers and their qualifications.
The Facts: Administrators should wisely, respectfully, and lawfully decline this insupportable request by local public-school officials. The information required to be included in the affidavit is all the law requires in this regard. The qualifications of the teachers are part of the private records of the private school and are to be kept on file at the private school. It is the legal jurisdiction of the principal of the private school to determine if the teacher is qualified.
Fire & Health Inspections
The filer of the affidavit is to provide the names (and dates of contact) of agency contact persons responsible for fire and health department inspections, which are required on an annual basis even for those operating a private school in your home.
The Facts: This information does not have to be provided to any public school official.
(a) Education officials do not have jurisdiction in this area. The space which used to be provided for this information on older versions of the state’s private school affidavit form has been deleted by the California Department of Education (CDE) for this very reason.
(b) There are no state laws requiring a Health Department inspection (confirmed by a summary of private K-12 school laws written by the Legal Office of the CDE).
(c) City and county codes related to any local health department inspections deal with public use buildings, not buildings whose primary use is as a private residence.
(d) Fire Department inspections are under the general authority of the Fire Marshal and appear to apply only to buildings with 50 or more occupancy or with more than one classroom [HSC §§ 13143 and 13146.3 and EC §32001].
Under the private school exemption, private home education is completely legal in California. Take time to study the law and familiarize yourself with the arguments people may use to try to persuade you to the contrary! Join HSLDA to protect your family against any legal challenges that you may face. Then step out in confidence and educate your children at home, knowing that California law absolutely supports your right to do so.
[1] Jonathan L. v. The Superior Court of Los Angeles County, 2008 CA, https://fpmca.org/wp-content/uploads/2018/05/B192878-080808-Final-Ruling-copy.pdf (2008).
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