2008 Cal. App. LEXIS 292,*;160 Cal. App. 4th 624
In re RACHEL L. et al., Persons Coming Under the Juvenile Court Law. JONATHAN L. et al, Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
B192878
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE
160 Cal. App. 4th 624; 2008 Cal. App. LEXIS 292
February 28, 2008, Filed
NOTICE:
As modified Mar. 7, 2008.
SUBSEQUENT HISTORY: Corrected by In re Rachel L., 2008 Cal. App. LEXIS 345 (Cal. App. 2d Dist., Mar. 7, 2008)
PRIOR HISTORY: [*1]
ORIGINAL PROCEEDINGS in mandate, Los Angeles County Superior Court No. JD00773,
Stephen Marpet, Temporary Judge (Pursuant to Cal. Const., art. VI, § 21).
DISPOSITION:
Writ granted.
COUNSEL: Children's Law Center of Los Angeles, Cameryn Schmidt,
Christine Caldwell; and Lori A. Fields, under appointment by the Court of
Appeals for Petitioners.
Christopher Blake, under appointment by the Court of Appeals for Petitioner
Philip L.
Aida Aslanian, under appointment by the Court of Appeal, for Petitioner Mary L.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel,
Larry Cory, Assistant County Counsel and Judith A. Luby, for Real Party
in Interest.
JUDGES: Opinion by Croskey, J., with Klein, P. J., and Kitching, J., concurring.
OPINION BY: Croskey
OPINION
CROSKEY, J.—In this dependency case (Welf.
& Inst. Code, § 300), we consider the question whether parents can
legally “home school” their children. The attorney for two of the three minor
children in the case has petitioned this court for extraordinary writ relief,
asking us to direct the juvenile court to order that the children be enrolled in
a public or private school, and actually attend such a school.
(1) The trial court's reason for declining to order public or private
schooling for the children was its belief that parents have a constitutional
right to school their children in their own home. However, California courts
have held that under provisions in the Education Code, parents do not have a
[*2] constitutional right to home school their children. Thus, while the
petition for extraordinary writ asserts that the trial court's refusal to order
attendance in a public or private school was an abuse of discretion, we find the
refusal was actually an error of law. It is clear to us that enrollment and
attendance in a public full-time day school is required by California law for
minor children unless (1) the child is enrolled in a private full-time day
school and actually attends that private school, (2) the child is tutored by a
person holding a valid state teaching credential for the grade being taught, or
(3) one of the other few statutory exemptions to compulsory public school
attendance (Ed.
Code, § 48220 et seq.) applies to the child. Because the parents in this
case have not demonstrated that any of these exemptions apply to their children,
we will grant the petition for extraordinary writ.
BACKGROUND OF THE CASE
A Welfare
and Institutions Code section 300 petition was filed on behalf of three
minor children after the eldest of them reported physical and emotional
mistreatment by the children's father. The Los Angeles County Department of
Children and Family Services investigated [*3] the situation and discovered,
among other things, that all eight of the children in the family had been home
schooled by the mother rather than educated in a public or private school. n1
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Over the years, the parents of the children have given various reasons for not
sending the children to school. Although previously they stated they do not
believe in the policies of the public school system, more recently they have
asserted that they home school because of their religious beliefs. The father
also recently opined that educating children outside the home exposes them to
“snitches.”
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The attorney representing the younger two children asked the juvenile court to
order that the children be enrolled in a public or private school. The
dependency court declined to make such an order despite the court's opinion that
the home schooling the children were receiving was “lousy,” “meager,” and “bad,”
and despite the court's opinion that keeping the children at home deprived them
of situations where (1) they could interact with people outside the family, (2)
there are people who could provide help if something is amiss in the children's
lives, and (3) they could develop emotionally in a broader world [*4] than the
parents' “cloistered” setting. As noted above, the court ruled that the parents
have a constitutional right to home school the children. From that ruling the
attorney for the younger children seeks extraordinary writ relief.
DISCUSSION
1. California's Provisions for Compulsory Education of Minor Children
Article IX, section 1
of California's Constitution states: “A general diffusion of knowledge
and intelligence being essential to the preservation of the rights and liberties
of the people, the Legislature shall encourage by all suitable means the
promotion of intellectual, scientific, moral, and agricultural improvement.”
(2) “In obedience to the constitutional mandate to bring about a general
diffusion of knowledge and intelligence, the Legislature, over the years,
enacted a series of laws. A primary purpose of the educational system is to
train school children in good citizenship, patriotism and loyalty to the state
and the nation as a means of protecting the public welfare. [Citation.] The
Supreme Court of the United States, in the case of
Pierce v. Society of
Sisters, 268 U.S. 510 [45 S. Ct. 571, 69 L. Ed. 1070, 39 A.L.R. 468],
held that: [¶] ‘No question is raised concerning the [*5] power of the state
reasonably to regulate all schools, to inspect, supervise and examine them,
their teachers and pupils; to require that all children of proper age attend
some school, that teachers shall be of good moral character and patriotic
disposition, that certain studies plainly essential to good citizenship must be
taught, and that nothing be taught which is manifestly inimical to the public
welfare.’ [¶] Included in the laws governing the educational program were those
regulating the attendance of children at school and the power of the state to
enforce compulsory education of children within the state at some school is
beyond question. (Meyer
v. Nebraska, 262 U.S. 390 [43 S. Ct. 625, 628, 67 L. Ed. 1042, 29 A.L.R. 1446];
Ex parte Liddell, 93
Cal. 633, 640 [29 P. 251].)” (In
re Shinn (1961) 195 Cal. App. 2d 683, 686–687 [16 Cal. Rptr. 165].)
(3) Full-time public school education for persons between the ages of six
and 18 is compulsory under California's compulsory education law (Ed.
Code, § 48200 et seq.), n2 “and each parent, guardian, or other person
having control or charge of the pupil shall send the pupil to the public
full-time day school … and for the full time designated as the length [*6] of
the schoolday by the governing board of the school district” (§
48200). Exemptions to compulsory public school education are made for,
among others, children who (1) attend a private full-time day school (§
48222) or (2) are instructed by a tutor who holds a valid state teaching
credential for the grade being taught (§
48224). These provisions of the Education Code (in their predecessor
section numbers) were held to be constitutional in
People v.
Turner (1953) 121 Cal. App. 2d Supp. 861, 865 et seq. [263 P.2d 685] (Turner),
and an appeal to the United States Supreme Court from that decision was
dismissed for want of a substantial federal question in
Turner v. California (1954)
347 U.S. 972 [98 L. Ed. 1112, 74 S. Ct. 785]. Turner was cited
with approval in
In re Shinn,
supra, 195 Cal. App. 2d at page 694 (Shinn).
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Unless otherwise indicated, all references herein to statutes are to the
Education Code.
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In Shinn, children were found to be habitually truant and were made wards
of the juvenile court because their parents violated the compulsory education
laws in effect at that time. The laws were former sections 12101, 12154, and
12155, which were predecessors to current
sections 48200,
[*7] 48222,
and 48224,
respectively. (Shinn,
supra, 195 Cal. App. 2d at pp. 687, 693–694.)
In Turner, the court affirmed a judgment of conviction of parents who
refused to send their children to public school and instead provided them with
instruction that did not come within the exemptions to the compulsory public
school education law. The appellant parents were convicted of violating former
section 16601, a predecessor to current
section 48200.
Former sections 16624 and 16625 provided exemptions for children attending
private full-time day school and children being educated by a person holding a
valid teaching credential, but the parents did not make use of the exemptions. (Turner,
supra, 121 Cal. App. 2d at pp. Supp. 863–864.)
The parents in Turner contended that former section 16601 was
unconstitutional because it deprived them of a right to determine how and where
their children should be educated. Citing
Pierce v. Society of Sisters
(1925) 268 U.S. 510 [69 L. Ed. 1070, 45 S. Ct. 571], the Turner
court stated the statute would be unconstitutional if it required parents to
place their children in public schools and had no alternative means of
education, but the court noted that former [*8] section 16601 permitted such
alternative means and therefore was not unconstitutional. The court specifically
rejected the argument that it is unconstitutional to require that parents
possess the qualifications prescribed by statute if the parents seek to act as
their children's teachers, saying that nothing in the Pierce opinion
declared or intimated such a finding of unconstitutionality. (Turner,
supra, 121 Cal. App. 2d at p. Supp. 865.)
The Turner court observed that there are “many cases dealing with
statutes of this character,” and specifically referred to
State v. Hoyt (1929) 84 N.H.
38 [146 A. 170], where the Supreme Court of New Hampshire held
constitutional a statute requiring children to be educated in either a public
school or an approved private school, and rejected the argument that the federal
guarantee of liberty permits parents to resist such state statutes by having
their children educated in their own home by the parents themselves or a private
tutor. (State v. Hoyt,
supra, 146 A. at p. 171;
Turner,
supra, 121 Cal. App. 2d at pp. Supp. 865–867.) The Turner court
observed that the court in Hoyt stated it would be an unreasonable burden
on the state to have to supervise [*9] each and every home in which a child
was being educated. (Turner,
at pp. Supp. 866–867.) The Turner court further observed it could
find no cases in which a court has held that a state's failure to permit home
instruction as an alternative to public school education is unconstitutional. (Id.
at p. Supp. 867.)
Turner also held that the subject former statutes were neither arbitrary
nor unreasonable when they required that teachers in private full-time day
schools need only be “persons capable of teaching” and did not have to hold a
valid teaching credential for the grade being taught, but did require that a
home tutor hold such a credential. The court observed that whereas it is
unreasonably difficult and expensive for a state to supervise parents who
instruct children in their homes, supervising teachers in organized private
schools is less difficult and expensive. (Turner,
supra, 121 Cal. App. 2d at p. Supp. 867.) Moreover, it would not be
unreasonable for the Legislature to conclude that teachers in private schools
would be directly supervised by the persons who run the schools, and such
persons would have an interest in maintaining the required standard of
instruction by competent teachers so that [*10] the schools would continue to
qualify for the private full-time day school exemption. (Id.
at pp. Supp. 867–868.)
Additionally, the Turner court rejected, and noted that courts in other
states had also rejected, the notion that parents instructing their children at
home come within the private full-time day school exemption in then-section
16624 (now §
48222). The court stated that a simple reading of the statutes governing
private schools and home instruction by private tutors shows the Legislature
intended to distinguish the two, for if a private school includes a parent or
private tutor instructing a child at home, there would be no purpose in writing
separate legislation for private instruction at home. (Turner,
supra, 121 Cal. App. 2d at p. Supp. 868; accord,
Shinn, supra,
195 Cal. App. 2d at p. 693.) Moreover, even if being taught at a
parent's home could be construed as attendance at a private day school, the
parents in Turner had not demonstrated that their home already qualified
as a private school under the requirements of the Education Code. (Turner,
at p. Supp. 869.)
(4) Nor was the Turner court persuaded by the parents' contention
that the education being provided to their children [*11] in their home was as
good or better than the children would have obtained in a public or private
school or through a credentialed tutor, and therefore the purpose of the
statutes was satisfied. The court stated California's legislative scheme makes
no such exemption to attendance in a public school. (Turner,
supra, 121 Cal. App. 2d at pp. Supp. 868–869; accord,
Shinn, supra,
195 Cal.App.2d at p. 694, where the court stated that “[h]ome education,
regardless of its worth, is not the legal equivalent of attendance in school in
the absence of instruction by qualified private tutors.”)
(5) Turner was cited with approval in
Board of Education v. Allen
(1968) 392 U.S. 236 [20 L. Ed. 2d 1060, 88 S. Ct. 1923] (Allen).
There, the Supreme Court stated: “Since Pierce [v. Society of Sisters
was decided], a substantial body of case law has confirmed the power of the
States to insist that attendance at private schools, if it is to satisfy state
compulsory-attendance laws, be at institutions which provide minimum hours of
instruction, employ teachers of specified training, and cover prescribed
subjects of instruction. Indeed, the State's interest in assuring that these
standards are being met has been [*12] considered a sufficient reason for
refusing to accept instruction at home as compliance with compulsory education
statutes. These cases were a sensible corollary of Pierce v. Society
of Sisters: if the State must satisfy its interest in secular education
through the instrument of private schools, it has a proper interest in the
manner in which those schools perform their secular educational function.” (Id.
at pp. 245–247, fns. omitted.) The Allen court cited Turner
as a case in which home instruction was rejected as a means of complying with a
state's compulsory education laws. (Id.
at p. 247, fn. 8.) Moreover, as noted above, the appeal to the United
States Supreme Court by the parents in Turner was dismissed for want of a
substantial federal question. n3
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In the instant case, the parents' citation to
Cassady v. Signorelli
(1996) 49 Cal.App.4th 55 [56 Cal. Rptr. 2d 545] provides them with no
support for their assertion of a right to home school their children with the
mother providing the educational instruction. Cassady is a family law
case involving the question whether the trial court abused its discretion when
it ordered that a minor child must attend a public or private school rather than
[*13] be home schooled. Although the reviewing court stated that “a parent
might normally have the right to provide home schooling, private schooling, or
government schooling to a child” (id.
at p. 62), the court did not address the requirements of the Education
Code, nor the excellent treatment of California's public compulsory education
law found in Shinn and Turner. The court simply ruled that based
on the facts of the case, it was not an abuse of its discretion to order that
the child not be home schooled.
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The Legislature has not amended the substantive aspects of the compulsory
education statutes that were analyzed in
Turner and
Shinn.
Like those courts, we find no reason to strike down the Legislature's evaluation
of what constitutes an adequate education scheme sufficient to promote the
“general diffusion of knowledge and intelligence,” which
article IX, section 1
of our Constitution states is “essential to the preservation of the rights and
liberties of the people.” We agree with the Shinn court's statement that
“the educational program of the State of California was designed to promote the
general welfare of all the people and was not designed to accommodate the
personal ideas of any individual in [*14] the field of education.” (Shinn,
supra, 195 Cal. App. 2d at p. 697.)
2. Consequences of Parental Denial of a Legal Education
(6) Because parents have a legal duty to see to their children's
schooling within the provisions of these laws, parents who fail to do so may be
subject to a criminal complaint against them, found guilty of an infraction, and
subject to imposition of fines or an order to complete a parent education and
counseling program. (§§
48291,
48293.) Additionally, the parents are subject to being ordered to enroll
their children in an appropriate school or education program and provide proof
of enrollment to the court, and willful failure to comply with such an order may
be punished by a fine for civil contempt. (§
48293.)
(7) Jurisdiction over such parental infractions may be assigned to
juvenile court judges. (§
48295;
Welf. & Inst.
Code, § 601.4.) Further, under
section 361,
subdivision (a) of the Welfare and Institutions Code, the juvenile court
has authority to limit a parent's control over a dependent child, including a
parent's right to make educational decisions for a child, so long as the
limitations do not exceed what is necessary to protect the child; and under
section 362,
subdivision (d) [*15] of that code, the juvenile court may make
reasonable orders directed at the parents to ensure that the child regularly
attends school. An order directing a child's regular attendance at school in
compliance with the Education Code's provisions for compulsory education is a
protection against the child being adjudged a habitual truant, while it also
recognizes the child's rights under California's compulsory public education
law.
3. Analysis of the Education Issues in the Instant Case
(8) The parents in this case assert that when the mother gives the
children educational instruction at home, the parents are acting within the law
because mother operates through Sunland Christian School where the children are
“enrolled.” n4 However, the parents have not demonstrated that mother has a
teaching credential such that the children can be said to be receiving an
education from a credentialed tutor. It is clear that the education of the
children at their home, whatever the quality of that education, does not qualify
for the private full-time day school or credentialed tutor exemptions from
compulsory education in a public full-time day school.
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In support of the parents' home schooling, Terry Neven, [*16] Sunland
Christian School's administrator, submitted a letter in which he stated the
school is a private school and the two younger children are enrolled there. The
letter fails to mention that the children do not actually receive education
instruction at the school.
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The parents are not aided by a letter from the Lynwood Unified School District
stating that Sunland Christian School “appeared to be a valid charter school.”
Aside from the fact that Sunland Christian School cannot be a charter school
unless it is, among other things, part of California's public school system and
nonsectarian, n5 the parents present no authority to the effect that a charter
school can excuse the statutory requirement that tutors be credentialed if their
students are to come within the tutor exemption to compulsory public school
education.
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Charter schools are part of, and are under the jurisdiction of, California's
public school system. (§
47615;
Wilson v.
State Bd. of Education (1999) 75 Cal.App.4th 1125, 1137 et seq. [89 Cal. Rptr.
2d 745].) They must be nonsectarian in their programs and all other
operations, they cannot charge tuition, and they cannot be conversions from
private schools. (§§
47605, subd. (d)(1),
47602, subd. (b);
[*17]
Wilson, at p. 1131.) Their teachers must be credentialed as teachers in
other public schools would be required to be credentialed. (§
47605, subd. (l);
Wilson, at p.
1137.)
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(9) Likewise, an affidavit of Sunland Christian School administrator
Terry Neven provides no authority for the parents' home schooling. In the
affidavit, Neven talks at length about “independent study” programs, including
his school's independent study program. He does not mention any Education Code
section that provides for parents teaching their children by “independent study”
through private schools.
Section 51745 et
seq. provide for independent study for students, through a school
district or a county office of education; however, its purpose is to provide
students with certain educational opportunities, such as education during
travel, or individualized study in an area of interest or subject not currently
available in the regular school curriculum. Clearly,
section 51745
does not apply to mother's home schooling of the children.
Nor is there importance to Mr. Neven's statement, in a letter to the Lynwood
Unified School District, that Sunland Christian School “has been evaluated by
both Los Angeles Unified School [*18] District and the Los Angeles County
Office of Education to be in compliance with state laws.” n6 Such representation
does not constitute a statement that the Los Angeles Unified School District and
the Los Angeles County Office of Education knowingly gave their stamp of
approval to children being deprived of an education in a public or private
full-time day school setting, or by a credentialed tutor, through the ruse of
enrolling them in a private school and then letting them stay home and be taught
by a noncredentialed parent.
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Both the Lynwood and the Los Angeles school districts are mentioned in Mr.
Neven's letter because the children live in one school district, and the Sunland
Christian School is in the other school district.
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Although Mr. Neven reported to the Lynwood Unified School District that he makes
visits to the parents' home about four times a year, and although some of the
children in the family reported to the Los Angeles County Department of Children
and Family Services social worker that they were given tests at the end of some
school years and they took the tests at the Sunland Christian School, the fact
remains that the children are taught at home by a noncredentialed person.
Moreover, [*19] the very language of
section 48222
is an implicit rejection of the parents' position that having someone from
Sunland Christian School monitor mother's instruction of the children is
sufficient.
Section 48222 provides an exemption from compulsory public school
education for “[c]hildren who are being instructed in a private full-time
day school.” (Italics added.) It is the language of the statutes that
constitutes California's plan for education of its children. Thus, under
California's compulsory public school education law, Mr. Neven's occasional
observation of mother's instruction of the children and their occasional taking
of tests at the private school is without legal significance.
(10) Lastly, we address the parents' claim that they home school their
children because of religious beliefs. We recognize that “a State's interest in
universal education … is not totally free from a balancing process when it
impinges on fundamental rights and interests, such as those specifically
protected by the
Free Exercise Clause of the First Amendment, and the traditional
interest of parents with respect to the religious upbringing of their children
so long as they … ‘prepare [them] for additional [*20] obligations.’ ” (Wisconsin
v. Yoder (1972) 406 U.S. 205, 214 [32 L. Ed. 2d 15, 92 S. Ct. 1526] (Yoder).)
The parents cite Yoder as a basis for their contention that their
religious beliefs entitle them to refuse to send their children to school.
Yoder involved
children whose parents' religion (Amish) accepted education given outside of the
home for grades one through eight but mandated that children not continue their
education in a public or private school past the eighth grade. The Yoder
court rejected the notion that parents have a universal right to refuse
to obey a state's compulsory education law. The court recognized that “allowing
every person to make his own standards on matters of conduct in which society as
a whole has important interests” is precluded by “the very concept of ordered
liberty,” and thus, “if the Amish asserted their claims because of their
subjective evaluation and rejection of the contemporary secular values accepted
by the majority, … their claims would not rest on a religious basis” but rather
would be philosophical and personal. (Yoder,
supra, 406 U.S. at pp. 215–216.) However, from the testimonial evidence
of scholars on the subjects of religion and [*21] education, the court found
that the Amish traditional way of life does not rest on personal preferences but
rather on “deep religious conviction, shared by an organized group, and
intimately related to daily living” (id.
at p. 216), and the Amish religious beliefs and style of living are
centuries old (id.
at p. 217). “Old Order Amish communities today are characterized by a
fundamental belief that salvation requires life in a church community separate
and apart from the world and worldly influence. This concept of life aloof from
the world and its values is central to their faith.” (Id.
at p. 210.) Testimony showed that not only were the values taught in
high schools contrary to those of the Amish religion, but attendance at high
school takes Amish children away from their community during the period of their
lives when they are to acquire Amish attitudes and integrate into the Amish
religious community. The Yoder court observed that Amish children receive
an informal vocational education in their own communities after graduation from
eighth grade that prepares them to be productive members of the Amish community.
(Id. at pp. 211–212,
222.) Moreover, one of the witnesses testified [*22] that compulsory
high school education for Amish children would “ultimately result in the
destruction of the Old Order Amish church community as it exists in the United
States today.” (Id.
at p. 212.)
The parents in the instant case have asserted in a declaration that it is
because of their “sincerely held religious beliefs” that they home school their
children and those religious beliefs “are based on Biblical teachings and
principles.” Even if the parents' declaration had been signed under penalty of
perjury, which it was not, those assertions are not the quality of evidence that
permits us to say that application of California's compulsory public school
education law to them violates their
First Amendment
rights. Their statements are conclusional, not factually specific. Moreover,
such sparse representations are too easily asserted by any parent who wishes to
home school his or her child.
4. Remand for Further Proceedings
Because the trial court in this case simply ruled that the parents have a
constitutional right to home school their children, the court made no explicit
factual findings concerning the parents' compliance with California's compulsory
public education law. So that findings [*23] and legal conclusions can be made
on the record by the trial court, we will remand the case for a hearing on the
issue whether the parents have been in compliance with that law.
The dependency court should exercise the authority, granted to it by
Welfare and
Institutions Code sections 361, subdivision (a), and
362,
subdivision (d), to order the parents to comply with the Education Code.
Upon remand, absent any legal ground for not doing so, the court must order the
parents to (1) enroll their children in a public full-time day school, or a
legally qualified private full-time day school and (2) see to it that the
children receive their education in such school. Given the history of this
family, which we need not discuss here, n7 permitting the parents to educate the
children at home by means of a credentialed tutor would likely pose too many
difficulties for the tutor. Further, the court should not permit the children to
be enrolled in the Sunland Christian School because that school was willing to
participate in the deprivation of the children's right to a legal education.
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On November 20, 2007, we filed a separate, unpublished opinion for this case
that decides consolidated appeals (Nos. [*24] B192601 & B195484) filed by the
parents and two of the minor children. Those appeals address matters other than
the home schooling issue and our opinion sets out a history of the family
vis-à-vis the dependency court.
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DISPOSITION
The petition for extraordinary writ is granted. Let a writ of mandate issue
directing the respondent juvenile court to comply with the views expressed
herein.
Klein, P. J., and Kitching, J., concurred.
