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Grey Matters: Mounting Challenges to Homeschooling Rights in California

by Jackie Orsi

Homeschooling in California may soon get the chance to prove that private homeschooling is their legal right. They've known it for a long time, but school authorities in some places still haven't got the message. Now it appears that the question may be settled in court. Homeschoolers aren't picking the fight. They've enjoyed a relatively peaceful climate for many years now. The peace has been disrupted lately by hostile actions emanating from Alameda County (largest city: Oakland) across the Bay from San Francisco. Before the dust settles, it appears as if a few brave families have been singled out for some harsh treatment. Any of these developments alone would stir a homeschooler's sense of well-being, but the three together add up to a critical situation. Their ordeals pave the way for the freedom of thousands of California homeschooling families

Alameda County has worked hard in the last decade to earn the distinction of being California's most hostile county for homeschoolers. Pressures now are more intense than I've seen in my ten years of close attention to the California legal scene. They have the potential to end long-standing climate of homeschooling freedom for all California homeschoolers.

It's been a long time, eight years actually, since things were this bad. Most California homeschoolers have come on the scene in the tranquil years that followed the wicked autumn of 1992. Lulled into a sense of relative security, many of them don't seem to know how to react to the news that is coming out of Alameda County.

The events in Alameda affect all homeschoolers in California, and ultimately, all liberty-loving parents everywhere. Any loss of family freedom anywhere is unacceptable to independent homeschoolers. The situation in Alameda is complex. There are several possible unfavorable outcomes and all of them bear upon fundamental parental rights. But before I get to the outcomes, let's outline the cases. (I should mention also that there is an additional worrisome case in San Luis Obispo County, but the main focus of attention at this time is on Alameda.)

Case #1: The Berkeley Four After fifteen months of harassment, four families in Berkeley Unified School District (BUSD) have been referred to the District Attorney for alleged truancy violations. All four families have met compliance with compulsory attendance law, through the establishment of a private school or by enrolling their children in a private independent study school. These families have been subject to an escalating list of demands, most of which are not authorized by law. They were summoned to a four-hour hearing before a Student Attendance Review Board (SARB). A SARB member told the families, "It is illegal to teach your child at home unless you have a teaching credential."

Now the parents of these families face the possibility of prosecution. If the District Attorney prefers charges, the six children involved in the case will be marched through Juvenile Court to determine whether they are "habitual truants." (Keep in mind that the youngest of these purported criminals is a first grader.) Once a determination is made regarding the children, then their parents may be prosecuted for violation for compulsory attendance law and "willfully fail[ing] to respond to directives of " the SARB. Alexander Palau, BUSD Manager of Student Services, has publicly stated his desire to make this a "test case."

Three of the families are represented by attorney Will Rogers of Petaluma, CA. Rogers is himself a homeschooling father. He is ready to blow the whistle on the unauthorized demands and actions of the District and the SARB, and he has also put the District on notice that the families view homeschooling as their fundamental right. In a letter to the SARB, Rogers wrote, "Th[e] fundamental right of a parent to direct the education of his or her child includes the right to refuse institutionalized education, and instead, to employ the parent's own resources, in the privacy of the home and the chosen community, toward that vital and primary duty which is the education of his or her own child."

How did these four families come to be singled out? According to Berkeley schools' spokesperson Karen Sarlo, the ex-husband of one of the homeschooling mothers complained to the district. In coverage of the case, World Net Daily (6/3/00) reported, "All four families attend the same church, as did the suspected complainant until his divorce. Prior to his divorce, the man-a school district employee-was known as a strong advocate for home schooling and had been preparing to open a home school on his church property. However, he has since registered a complaint with the California Franchise Tax Board challenging his former church's tax-exempt status and reportedly initiated the investigation into his friends' homeschooling practices."

Indeed, the families are fellow members of a small non-traditional Christian church. Attorney Rogers confirms that the families' religious beliefs motivated them to choose homeschooling. "They never intended to be martyrs or public figures in the homeschooling cause. They wanted to quietly conduct their homeschooling out of the limelight, but they were thrust into the light by the actions of Berkeley Unified School District."

Rogers reports that the families fear that the vindictive individual who stirred up this mess is not finished with his dirty work yet. They consider it a real possibility that he will contact Child Protective Services with false charges of abuse and neglect. Given the frightening situation that is happening concurrently in Berkeley, (see Case #2, below), the parents' fears are more than justified. Rogers says, "The families are extremely distressed. They are worried that CPS might come knocking at the door and they are worried about criminal charges. Whenever a car stops in front of their house, they're thinking it's CPS or the sheriff, but they are resolute in their determination to exercise their fundamental right to homeschool."

A short course in California homeschool law The California Education Code provides two exceptions to compulsory school attendance: 1.Tutorial instruction by a credentialed teacher; and 2.Enrollment in a private school, including independent study programs. Homeschoolers in California have long relied on the second option, private school enrollment. Homeschool parents establish their own private schools by meeting all the requirements pertaining to private schools. Some parents enroll their children in a private school that sponsors independent study. The legal requirements for operating a private school are few: File an affidavit (an "R-4") with the State, disclosing a small amount of mainly demographic information. Maintain attendance records. Teach (or offer to teach) from a list of required subjects. Teach in English. Instruction must be given by persons who are "capable of teaching" (no mention of credentials!)

Equally as important as what the Education Code says is what it does not say. The Code does not specify the size of the school, the possibility of familial relationships between the administrator and the students, or the location of the school. But while there is no statutory restriction that would prevent a parent from establishing a legal private school and then enrolling his/her own children in that school, the California education establishment wishes otherwise. It has long argued against homeschoolers filing as private schools. State Department of Education directives tell school districts "If a parent chooses to teach his or her child at home and does not hold a teaching credential, the child is truant from public school. The appropriate school district is authorized to take truancy action and the parent is subject to an infraction fine." There are two faulty old case law decisions (People v. Turner, 1953 and In Re: Shinn 1961) that get trotted out as "proof" of the State's claim. SARBs occasionally act upon the State's urging, attempting to bring truancy charges against homeschools which are private schools. Homeschoolers protest that the SARB is a mechanism designed to deal with truancy of only public school students, having no legitimate authority over private schools and the students enrolled in them.

Case # 2: Berkeley resident Patricia Moodian-Pink A single homeschooling mother, Patricia Moodian-Pink, also a Berkeley resident, was stunned when Child Protective Service (CPS) workers with police escorts came to her door to "check on the children." They did not have a warrant. The CPS workers assured her they would not take the children; they just wanted "to talk with them." Trusting them, Patricia stepped aside, and the workers forcibly took the children from the home. The reason given: "homeschool isolation." The CPS documents state, "The children are home schooled and never see anyone but their mother."

That was on April 20th, weeks ago (as I write this on 6/14/00), and the children, twin boys, Hans and Nils, age 9, are still separated from Patricia.

Homeschoolers and many others in the area immediately rushed to protest. The boys were anything but isolated-having a rich social life with many community activities. (As an added irony, the children were enrolled in a public school homeschooling program.) The outcry apparently angered the judge, who warned Patricia to tell her friends to desist—an unofficial gag order.

How did this CPS action originate? The children's father and his parents are engaged in a custody battle with the mother. The family is wealthy and has considerable political connections. To all appearances, they have used CPS to arrange the twins removal from their mother on a trumped up charge of "homeschool isolation."

As weeks have dragged on, mother and sons have had a few short, tearful visitations. The boys' medical needs went untreated for seven weeks; it took an order from the judge to get CPS to get them to medical care. Meanwhile, Patricia has been ordered by the court to undergo repeated psychological evaluations at her own expense.

Annette Hall, a homeschooler who has made this case her personal cause, is working to rally support for Patricia, Hans, and Nils, including fundraising for the mounting legal fees and psychologists' fees. She related to me that the mother may go public again with her story in a few days. Hall said, "Right now, Patty has the attitude if the news gets out, it gets out. She has no control, and let's face it the kids are gone and it doesn't appear the state is in a huge hurry to get them back home where they belong. "Amedia blitz may be in the offing.

Hall summarizes the situation, "This is still very much a homeschool issue, as CPS will not drop those charges until evidence has been admitted into court to admonish her actions. She had the children enrolled in [a public]ISP, though CPS took the children with no investigation and are now back-tracking to cover their tracks. This case is far from over." The next hearing is set for July 6th.

Case #3: Homeschooler arrested; another family threatened San Leandro Unified School District is harassing homeschoolers again. Like Berkeley, San Leandro has a history of hostile contacts with homeschoolers. The chief agitator is Bob Burgess, Director of Student Services. Burgess is an old foe of mine. I met him at a SARB hearing in early 1997, when, in my role as Legal Chair of the California Homeschool Network, I was, helping a family named Klaes. I had helped them obtain legal representation from the U. S. Justice Foundation. We thought we had the matter resolved so that the family could get on with homeschooling. Imagine my surprise to see the name Klaes in a news story in The Hayward Daily Review on February 13, 2000!

The Review reported that police were "getting tough on truants" and that a mother, Penni Klaes, had been arrested after being pepper-sprayed in front of her ten-year-old son.

The article states, "Burgess said Klaes once had a permit for home study --as the law requires — but didn't meet the requirements of home schooling. That means the boy must go back to public school."

The Review coverage of the incident reports, "To be honest with you, [the school district] has haunted this family for three years.' Klaes said. She had to use an attorney to get the home-schooling approved in the first place."

California Homeschool Network, Christian Home Educators Association and Homeschool Association of California all attempted to locate the Klaes family and offer assistance. They could not be reached and their status is not known at this time. A hint of what may have happened to them is found in a letter by Bob Burgess to the Hayward Daily Review on April 18, 2000. He wrote, "The recent arrests of parents who ignored the community School Attendance Review Board and who subsequently were found in contempt of court have overshadowed the school district's efforts to improve attendance through positive, proactive means." (italics mine.) Some of us speculate that the Klaes family may have "moved in the night." By the way, you'll note that Mr. Burgess thinks pepper spraying a mother is "positive" and "proactive."

Since that deeply concerning incident, San Leandro Unified has selected yet another homeschooling family and begun making illegal demands. This family is also working with attorney Will Rogers. According to Rogers, the demands are not coming from the district itself. Rather they are coming on the letterhead of a large, pricey law firm that San Leandro Unified District has apparently hired for the purposes of pursuing homeschoolers. The situation has not reached the stage where the family has been called before a SARB hearing. Mr. Burgess and his law firm and his truancy arrest squad bear close watching.

What's it all mean? What could happen? Before I discuss the possible ramifications of these cases, let me dispel one mistaken idea that is floating around. Some homeschoolers are saying that these situations do not have to be taken seriously because "they are custody cases, not homeschooling cases." The entangling of custody battles and government actions against the freedom to homeschool is a despicable development. It sickens me that school authorities and CPS would stoop to using malicious ex-husbands as informants. It disgusts me that they would prey upon homeschooling mothers who are already in the stressful position of fighting for custody of their kids. Yes, it's true that custody issues helped to precipitate these crises, but the legal matters themselves are all about homeschooling, make no mistake about it.

Why has Alameda County gone from merely problematic to critical? I can only speculate. This is a county that has nurtured a culture of opposition to homeschooling for a long time. Do you imagine that the folks in Berkeley talk to the folks in San Leandro? I certainly do. In their warm little incubator of homeschooling hatred, perhaps they have hatched a little monster. The monster might be hungry for a test case.

The point of a test case would not be the of end homeschooling—it would aim for the complete control of homeschooling. Private school students are a fiscal loss to the schools. Alameda school districts would love to enroll all homeschooled children in their public independent study programs. Berkeley Unified School District wants every penny of their state ADA allotment;$4,606 per student is expected for the 99-00 school year. The six children of the Berkeley Four therefore amount to $27,636 in lost income to the district. The growth of private homeschooling seeps revenue from schools, starving the monster. Feed the monster.

So far, public schools have been able to attract a substantial number of homeschooling families away from private schooling into public homeschool programs. Their intimidation over the years has managed to cull independent homeschoolers down to smaller and smaller numbers, while they dangle public school independent study programs (ISP) with lots of goodies in front of the homeschooling community. When I called to inquire about the Berkeley Four, BUSD Public Information Officer Karen Sarlo was eager to tell me about the district's wonderful public independent study program. Even as four families in Berkeley are fearful of every phone call and every knock on their doors, Sarlo was cheerfully assuring me, "We're very accommodating to homeschoolers in this district." Yeah, right.

The current actions against homeschoolers may be the final effort to slam the door shut on private homeschooling, leaving California homeschoolers no alternative but public school programs. This would be a catastrophic loss of freedom, even to families who are currently enrolled in public ISPs. Public programs are agreeable and generous to families now because they have to compete with the private homeschooling option. As the saying goes, you can't catch flies with vinegar. If education establishment obtains monopoly control over homeschoolers, there will be no incentive to please homeschoolers. When all the flies are trapped, vinegar can be their steady diet.

If the Berkeley Four becomes a test case, we can take comfort in the knowledge that they have a strong case in their favor. Attorney Rogers is well prepared to defend his clients on statutory grounds and Constitutional grounds. Nevertheless, much depends on the attitude of the judge who hears the case and his/her willingness to rely on the precedents set by Turner and In re: Shinn.

Speaking of precedents, there are two possible precedents here. Let's call them Capital P-Precedent and small p-precedent. Capital P-Precedent would occur if the Berkeley Four case reaches the appellate level; then the outcome of the case would be legally binding on all California homeschoolers. In effect, the judiciary's interpretation of the Education Code in this matter would become the law of the land.

Small p-precedent is already taking effect. The very existence of these three cases is a danger to homeschoolers around California. You can be sure that school districts across the state are watching what is happening in Alameda. School administrators may already be modeling their truancy control program for next year after Bob Burgess's arrest squad. Other districts may already be setting up new guidelines for their SARBs. CPS workers may be waiting to hear the outcome of Patricia Moodian-Pink's case. We've seen this happen before, in 1992. The Robinson truancy prosecution in San Mateo County stimulated hostile contacts against homeschoolers all over California.

And let's face it: small-p precedent is already working on our psyches; some homeschoolers are growing fearful. We must resist these feelings. Granted, these are stressful times, but the problems are not insurmountable if homeschoolers form ranks and face them together.

Another unfortunate potential outcome of this situation is one that is paradoxical and unavoidable. I consider it likely that the Berkeley Four will ultimately triumph in court. Such a victory, even in the lower courts, will set a small-p precedent for school districts around the state. Their hopes of ever stopping private homeschooling by litigation would be effectively dashed, leaving them only one other way to stop it: new legislation. When the case is resolved, we must all turn a watchful eye to the California Legislature. A homeschooling legal victory could ironically lead to a legislative defeat.

It's Got to Be Stopped. We simply must stop the momentum that Alameda County has put into motion. Homeschoolers can help reverse the tide. There are three ways you can directly help:

First, we must all be resolute. Panic never helps any situation, and it's especially true of this one. Running for cover by signing up with public school programs is precisely what the education establishment wants us to do. The Berkeley Four case is very "winnable," so there's no reason to give up our rights voluntarily now. It's winnable, but it will take effort and expense. Homeschoolers can help by forming ranks in support of the embattled families of Alameda County. This is a time for all California homeschoolers to come together and cease bickering and turf-guarding.

Second, join in the effort to bring pressure on the school districts. The California Homeschool Network (CHN) is working closely with attorney Will Rogers to direct a stream of protest against the Berkeley Unified School District. Efforts include letter writing, faxing, calling, and just plain making it clear that we object! We know that this strategy can help; in 1996, a major threat to homeschoolers in San Luis Obispo was successfully diverted by just such a campaign. Homeschool activists are particularly aiming at bringing media attention to the case-writing op-ed pieces in the print media, calling in to talk radio shows, etc. We want the public at large to see that the school district is spending its resources to hassle innocent families.

Karen Taylor, Executive Director of CHN, says the barrage of calls and FAXes is having an effect. "Bureaucrats are squirming." she said. She cautioned, however, that people who want to help need to check in at the CHN website(www.cahomeschoolnet.org) for direction. " We need all the help we can get, but it needs to be directed at the right targets. We're approaching this strategically, almost surgically, taking our cue from Will Rogers. We are being careful not to annoy people who could be our allies in this fight."

Third, none of the families who are facing these ordeals have the financial resources to meet the cost of legal fees, court fees, etc. Legal defense funds have been established to aid the families.

To contribute to Patricia Moodian-Pink and her sons, make your check payable to the children's lawyer: David Beauvais, Attorney for Hans/ Nils/Patricia Moodian-Pink. Mail it to: D. Beauvais, Law Offices, 1840 Woolsey, Berkeley California, CA 94704.

To support the Berkeley Four: Mail contributions to CHN Legal Defense Fund, P. O. Box 3611, Santa Fe Springs, CA 90670; or donate by credit card by calling 800-327-5339 (calling from California). Calling from out of state, call 760-431-1027. CHN is a nonprofit organization, so your contributions will be tax deductible.

Other organizations in California may be raising funds to assist these families, but I was unable to get any details at the time of this writing. Check with the organizations listed in The Link Resource Page to see what they may be doing in support. Take care, however, to make sure that those collecting donations are legitimate.


Jackie Orsi is the author of Homeschooling in California: Our Rights, Our Laws, and Our Children.

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