Home School Court Report
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No. 6

In This Issue

The Last Word Previous Page Next Page
by J. Michael Smith
The History Behind the California Victory

Since I get the last word on the homeschool victory in California, I want to give you some inside information on events that took place 10 years prior to the August 8th Jonathan L. ruling by the Second District Court of Appeals—events that had a dramatic effect on the judges’ decision.

HSLDA / Art Cox
J. Michael Smith, President, Home School Legal Defense Association

The story actually began on May 16, 1997, when Alex Dale Thomas, a substitute janitor, on parole for manslaughter from Folsom Prison, raped and killed 18-year-old Michelle Montoya in the woodshop at Rio Linda High School near Sacramento. His prior convictions included involuntary manslaughter and robbery. He had been on the school district’s payroll as a substitute custodian for about three weeks, including two days at the Rio Linda campus.

There was a tremendous public outcry, and the California legislature responded within just four days of the tragic murder. On May 20, 1997, the legislature suspended the rule that prohibits the introduction of any new bills after the end of February, and Assembly Members Deborah Ortiz and Barbara Alby introduced Assembly Bill 1610 to amend Education Code 45125 to address public schools and “… prohibit the governing board of a school district from employing a person in a position not requiring certification until the Department of Justice completes its obligation regarding the arrest and conviction information.”

Initially, this amendment did not affect private schools. But on September 8, 1997, AB 1610 was amended in the Senate to address Education Code §44237, which deals exclusively with private schools. AB 1610 amended §44237 to “… prohibit a person, firm, association, partnership, or corporation offering or conducting private school instruction on the elementary or high school level from employing a person who has been convicted of a violent or serious felony, as defined.”

This was significant because many homeschoolers in California operate as private schools. Any amendment to a code section that deals with private schools affects homeschoolers. Although at that time the California Department of Education (CDE) had not yet officially recognized homeschooling via the private school exemption, most school districts were reluctant to prosecute homeschoolers because of what they called “vagueness” or a “loophole” of the statute.

In 1997, at the time §44237 was being amended, it contained a provision that required applicants who did not possess a valid state teaching credential, but were seeking employment in positions requiring contact with minor pupils, to submit two sets of fingerprints to the Department of Justice for the purpose of obtaining a Criminal Records Summary.

We, along with Family Protection Ministries and Christian Home Educators Association of California, had advised our members and constituents that we interpreted the statute to mean that only paid employees would have to submit to fingerprinting. However, this was a troubling section, containing language that could potentially be used to force parents to undergo background checks.

The bill sped through the legislature so fast that Roy Hanson and Jim Davis of Family Protection Ministries were unable to get any amended language to clarify that parents teaching their own children should be excluded from the fingerprint requirement. However, because of the bill’s rapid progress, it passed with a number of non-homeschool-related problems as well. During the remainder of 1997, Roy and Jim worked on convincing the authors of the bill that they needed to relieve homeschooling parents of the fingerprint obligation. In 1998, AB 2102 was introduced to clean up problems with the previous legislation. Authors of that bill agreed to fix the problem, and HSLDA worked with Roy and Jim to draft language that exempted parents who worked exclusively with their own children from the background check and fingerprint requirement.

This amendment placed in California law the legislature’s acknowledgment that homeschoolers were operating as private schools.

When the Rachel L. decision came down in February, HSLDA recognized by the nature of this decision that the appeals court judges were not aware of this or any other statutory provisions recognizing homeschooling as legal through the private school exemption. Our recommendation that the father petition the court for a rehearing was primarily based upon this realization. We hoped that consideration of these statutory enactments would persuade the court to vacate their decision.

Our briefs to the court pointed out these provisions, along with other legislative and administrative acts that supported our position that homeschooling should be recognized as legal via the private school exemption.

Almost 10 years to the day of AB 2102’s enactment, the appellate court reversed itself with the Jonathan L. ruling. It found that the legislative history of California Education Code §44237 confirms that the exemption was intended for homeschooling parents and reflects the legislature’s apparent intent to accommodate homeschooling parents through the private school exemption. God used the AB 2102 amendment in 1998 to prepare the way for His victory for homeschoolers in 2008. Truly, this was a miracle. Let’s give all glory to God!