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Homeschooling Legal FAQ (page 3)

— Homeschool Association of California
Updated on Dec 16, 2008

How should I fill out my private school affidavit (R-4) form?

The questions are generally self-explanatory. Keep in mind that your school is a day school (residential boarding schools have complex requirements), does not offer kindergarten (it is not compulsory and there are additional legal requirements), you can offer a diploma, your school is not eligible for NDSL loan cancellation status, and most schools do not have a tax exemption. See detailed instructions for completing the private school affidavit form.

Are there any risks to filing the affidavit online?

Information submitted online is inherently vulnerable. A hacker could access it. Some people have expressed concern that predators could look for schools with a small number of children nearby. We believe that people with criminal intent will not be given any advantages by these online filings; they only need to drive around to find homes with small children. There is very little other information in the affidavit that would be of great value.

What is the affidavit used for? Can my local school district access the information and use it to prosecute my children for truancy? Wouldn't it be safer for me not to file anything?

The CDE regards the affidavit as a purely ministerial document. It is used to report annual information required by law from private, full-time day and boarding schools. The information from private schools with more that 6 students is then used to publish the California Private School Directory.

Filing the Private School Affidavit does not mean that the State of California or any accrediting agency has made any evaluation, recognition, approval, or endorsement of the school or course. (Education Code § 33190.) The affidavit is not a license or authorization to operate a private school; the state does not grant these to anyone.

If you fail to file an affidavit and comply with the private school requirements, or to follow the requirements for the other homeschooling options listed above (How do I go about homeschooling?"), then your children are not complying with the compulsory education statute and they are truant.

It is our expectation that the state will sort affidavits filed online by county and forward them the relevant database information, just as they sent paper copies in prior years. Information in computer format, of course, is easier to search. We believe that truancy officers are not permitted to use the R-4 information to track down homeschoolers for truancy. The entire HSC board of directors, along with individuals affiliated with CHN and Family Protection Ministries, attended a California state SARB (Student Attendance Review Board) hearing on Thursday, August 15, 2002. At that meeting the CDE attorney, Roger Wolfertz, advised the board and those of us in attendance that the private school affidavits could not be withheld from any individuals requesting them and that the filed private school affidavits could not be used as a fishing expedition in order to find students they thought might be truant. We believe he correctly stated the law. We think the new online filing procedure is an improvement in that it removes the county offices from any role in providing affidavits, and eliminates the possibility that misguided employees at those offices will try to prevent families from filing them. Some people have expressed concern that the databases created from the online filings will make it easier for counties to harass them. It is too soon to say what the counties will do. They always had the information before, albeit in paper form. Those that wanted to make hassling families a priority might continue to do so, and some may be emboldened. We think most will not. We also hope they are paying attention to what Mr. Wolfertz said: the affidavits cannot be used as a fishing expedition.

Will filing your affidavit correctly protect you from a claim by your local district that your children are truant?

The filing of the affidavit cannot protect you from attendance officers starting a truancy investigation, but it should protect you from it going very far. In the past, we have had to battle a number of problems, and there may well be some in the future. There have not been any recently. HSC is not a legal services organization, but in a number of situations we have sent letters and legal briefs on an "amicus" (friend of the court) basis informing governmental officials of what the law really says. In each case in which we have gotten involved, the issue has gone away. We know that other statewide organizations as well as HSLDA do the same and have a similar track record. At best, the law is ambiguous, and at worst (from the government's viewpoint), homeschoolers are right. Most district attorneys, once they learn about a family's private school and the ambiguities of the law, quickly decide they don't have the time or energy to take on cases like that, when there are murderers and drug dealers to prosecute.

How do truancy proceedings get started? What do I do if a truancy officer comes to my door?

The local student attendance review board can only start investigating truancy if it has the name of a child. The affidavit does not ask for student names. You should not give your children's names to anyone. If they somehow have your children's names (for example, because your children had been enrolled in the public school), they can contact you, either in writing or by sending an officer to your home. If you are contacted in writing, reply on letterhead and say the child is enrolled in the private school and enclosed is a copy of the filed affidavit. If someone comes to your door, our advice remains the same. Without a warrant, they cannot come in. Do not let them. If they are wondering why your children are not in school, show them a copy of your filed affidavit (or, if they come before the October 15 deadline and before you have filed it or if you formed your school after October 15 and chose not to file, tell them your children are enrolled in a private school and that the school's affidavit will be filed by the deadline; if you filed last year as well, you can give them a copy of the prior year affidavit). You can also prepare a letter on school letterhead to have on hand saying that [name of child] is enrolled at and attending [name of school]. DO NOT give them anything else. They are not entitled to "go behind" the affidavit and attempt to verify the truth of the statements you make. Not only can they not ask to see your curriculum, etc. while standing at your door, they couldn't even get a subpoena to see it. The state law is very clear that private schools are not regulated. Even if they continue their proceedings and find your child truant, and send a referral of the case to the district attorney, we think it unlikely that the DA will continue to prosecute the case if informed of the law. Download the legal brief.

I have filed the private school affidavit certifying that I maintain all of the required private school records. If the attendance supervisor from the public school district verifies the filing of the affidavit, am I also required to show the records to the attendance supervisor?

Once you have mailed your confirmation copy of the affidavit and have some proof of your mailing (we recommend certified mail, return receipt requested), we believe that the government has an obligation to verify that your affidavit was filed. You are not required to provide any other documents, other than perhaps a letter saying that [name of child] is enrolled in and attending [name of school]. Under the statutes, the attendance supervisor is not authorized to request these records from any private school. They would really like to say they are, but the statutes are very clear on this point. If the government believes you were lying when you signed your affidavit, their only option is to begin a criminal proceeding for perjury.

If an officer for Child Protective Services contacts me, what do I do?

CPS officers may not enter your home or speak with your children without a warrant. Warrants are only issued if there is a threat of imminent physical harm. "Educational neglect" is not a form of child abuse in California. However, psychological abuse is a form of child abuse. In an extreme case, educational neglect could be one of several allegations against a family, but it would not hold up without other substantial allegations. For instance, if you were isolating your children by preventing them from leaving your home or you were seriously neglecting them by failing to provide a safe home or adequate food, the addition of an additional charge of educational neglect would only be one of many factors considered. Homeschooling in and of itself is not educational neglect. If you are involved in a custody situation or are investigated by Children's Protective Services, you will need to consult with an attorney immediately who is familiar with homeschool law as well as custody and juvenile dependency law. If you ever have any hostile contacts regarding homeschooling, please inform an HSC board member. HSC maintains a list of attorneys and experts with experience in these areas.

What educational goals must my children meet each year?

If your children are enrolled in a public program, your contact teachers will explain what is required in the way of curriculum. If you are enrolled in a private school other than your own, they will also tell you what is expected. If you operate your own private school, you must offer the course of study required for the applicable grade levels. Your children do not have to study them, but you must have a document in your school file saying you offer them. Each parent is free to decide what curriculum or teaching method will best meet your child's needs.Education Code section 51210 contains a very broad description of these required subjects for elementary students:

The adopted course of study for grades 1 to 6, inclusive, shall include instruction, beginning in grade 1 and continuing through grade 6, in the following areas of study:

(a) English, including knowledge of, and appreciation for literature and the language, as well as the skills of speaking, reading, listening, spelling, handwriting, and composition.

(b) Mathematics, including concepts, operational skills, and problem solving.

(c) Social sciences, drawing upon the disciplines of anthropology, economics, geography, history, political science, psychology, and sociology, designed to fit the maturity of the pupils. Instruction shall provide a foundation for understanding the history, resources, development, and government of California and the United States of America; the development of the American economic system including the role of the entrepreneur and labor; the relations of persons to their human and natural environment; eastern and western cultures and civilizations; contemporary issues; and the wise use of natural resources.

(d) Science, including the biological and physical aspects, with emphasis on the processes of experimental inquiry and on the place of humans in ecological systems.

(e) Visual and performing arts, including instruction in the subjects of art and music, aimed at the development of aesthetic appreciation and the skills of creative expression.

(f) Health, including instruction in the principles and practices of individual, family, and community health.

(g) Physical education, with emphasis upon the physical activities for the pupils that may be conducive to health and vigor of body and mind, for a total period of time of not less than 200 minutes each 10 schooldays, exclusive of recesses and the lunch period.

(h) Other studies that may be prescribed by the governing board.

Subjects required to be offered for middle school or high school students can be found in Education Code section 51220:

The adopted course of study for grades 7 to 12, inclusive, shall offer courses in the following areas of study:

(a) English, including knowledge of and appreciation for literature, language, and composition, and the skills of reading, listening, and speaking.

(b) Social sciences, drawing upon the disciplines of anthropology, economics, geography, history, political science, psychology, and sociology, designed to fit the maturity of the pupils. Instruction shall provide a foundation for understanding the history, resources, development, and government of California and the United States of America; instruction in our American legal system, the operation of the juvenile and adult criminal justice systems, and the rights and duties of citizens under the criminal and civil law and the State and Federal Constitutions; the development of the American economic system, including the role of the entrepreneur and labor; the relations of persons to their human and natural environment; eastern and western cultures and civilizations; human rights issues, with particular attention to the study of the inhumanity of genocide, slavery, and the Holocaust, and contemporary issues.

(c) Foreign language or languages, beginning not later than grade 7, designed to develop a facility for understanding, speaking, reading, and writing the particular language.

(d) Physical education, with emphasis given to physical activities that are conducive to health and to vigor of body and mind.

(e) Science, including the physical and biological aspects, with emphasis on basic concepts, theories, and processes of scientific investigation and on the place of humans in ecological systems, and with appropriate applications of the interrelation and interdependence of the sciences.

(f) Mathematics, including instruction designed to develop mathematical understandings, operational skills, and insight into problem-solving procedures.

(g) Visual and performing arts, including art, music, or drama, with emphasis upon development of aesthetic appreciation and the skills of creative expression.

(h) Applied arts, including instruction in the areas of consumer and homemaking education, industrial arts, general business education, or general agriculture.

(i) Vocational-technical education designed and conducted for the purpose of preparing youth for gainful employment in the occupations and in the numbers that are appropriate to the personnel needs of the state and the community served and relevant to the career desires and needs of the pupils.

(j) Automobile driver education, designed to develop a knowledge of the provisions of the Vehicle Code and other laws of this state relating to the operation of motor vehicles, a proper acceptance of personal responsibility in traffic, a true appreciation of the causes, seriousness and consequences of traffic accidents, and to develop the knowledge and attitudes necessary for the safe operation of motor vehicles. A course in automobile driver education shall include education in the safe operation of motorcycles.

(k) Other studies as may be prescribed by the governing board. In addition, Education Code section 51220.5 requires that students in grades 7 or 8 shall study the equivalent content of a one-semester course in parenting skills and education with content designed to develop a knowledge of topics including, but not limited to, all of the following:

  1. Child growth and development.
  2. Parental responsibilities.
  3. Household budgeting.
  4. Child abuse and neglect issues.
  5. Personal hygiene.
  6. Maintaining healthy relationships.
  7. Teen parenting issues.
  8. Self-esteem.

The state has adopted scope, sequence and content standards for the coursework required in each grade. These are available as PDF files and can be found at: http://www.cde.ca.gov/be/st/ss/index.asp. These standards are extremely detailed. While some homeschooling families try to follow them, there is no obligation that private schools do so. Many families merely keep the list of required courses of study on file and, with their children, make their own determination of what to study.

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