Special Situations in Homeschooling Your Child (page 4)
A. Withdrawing your Child from Public or Private School Mid-Year
You can withdraw your child from school mid-year and start homeschooling. Many schools are supportive of homeschooling and can provide you with help and resources. However, withdrawing a child mid-year may be a little more complicated than starting homeschooling at the beginning of the school year, because the school has a record of your child and may be unwilling to lose a student. The school loses funding attributable to your child. We do recommend that you not tell the school that you are going to homeschool (see the discussion following) but rather tell them that you are transferring your child to another school, as they may try to convince you that you are not capable of teaching your child or that you cannot legally homeschool, especially if you are setting up your own home-based private school. They may even threaten you with a report to the truancy officer. As long as you follow the legal requirements set forth above, you can withdraw your child from public or private school and legally homeschool.
If you decide to start your own school, prepare the documentation noted above and remove your child from school. You also need to consider whether to file the private school affidavit immediately; see the discussion at private_school_option.php#affidavit
When you take your child out of school, tell the school that your child will be attending another school and give it the name. Because the CDE's old memos stating that homeschooling is illegal are still floating around in the minds and files of many public school officials, we recommend that you not mention the word "homeschooling." You can tell school officials whether you intend to use a public or private school, but you are not obligated to give them any more information than that. If your child will be enrolled in a school run by someone else, that person will write the former school and ask for the child's cumulative file (§49068). If you are starting your own private school, then promptly write a professional letter to the former school on your school letterhead advising the administrators there that your child has been enrolled in (your school name) and request his or her cumulative file (see a sample letter). Sending this letter should close the school's file on your child so that s/he can't be considered truant. The school is required to give you your child's cumulative file (it can be a copy rather than an original), although many schools don't seem to be able to do this. You are also entitled, as a parent, to have a copy of the cumulative file. If you really want to have a copy, we recommend going to the office in your role as a parent, not a school official, and offering to make the copies yourself, or giving them a stamped envelope, or any other help that makes it easier for them to comply. As long as you properly sent the request for the file, failure to receive the copy does not have any legal importance.
If you pull your child out as a result of truancy or other unresolved problems with the school, the school may fight your efforts by continuing with a truancy hearing or denying the validity of your new school. Although you are still entitled to educate your children at home using any of the options described above, you will need to weigh the practical and financial alternatives of continued controversy or litigation against other alternatives the truancy board might accept. In some cases, they may look more favorably on a program offered by a public or charter school or commercial private school rather than a home-based private school. Please contact the HSC legal team for more information if you are in this situation.
B. Homeschooling after a Divorce
Although it is legal to homeschool after a divorce or in a situation where the other parent does not agree with homeschooling, the ultimate decision as to whether you can homeschool your children may be up to the Family Law Court. The judge will make a decision based upon the evidence presented at the court hearing regarding what is in the child's best interest. Generally, courts tend to order that the children remain in the status quo. Children who are enrolled in public school stay in public school, children who are in private school stay in private school, and children who are homeschooled continue homeschooling. If you cannot reach an agreement with your child's other parent, you will need to consult with a local attorney for guidance. HSC can assist your attorney with information about the legality of homeschooling in California and experts favorable to homeschooling.
Before you commence an expensive battle, which invariably hurts the children, it is helpful if you consider other alternatives. It may be helpful if you educate the other parent about the benefits of homeschooling and how that parent can have both more and flexible time with the children because they are not tied to the public school schedule. Involve the parent in the educational process. If finances are the underlying issue, consider whether and how you can work and homeschool your children. It may be that the other parent is concerned about accountability. You can meet this concern by involving the other parent in the educational process, choosing a charter school or independent study program, or involving a third party in the process, such as a tutor or evaluator.
Keep in mind that your goal is to do what is in the best interest of your children. Each custody situation is unique, and your attorney can guide you to choose the best option for your family. If you have the ability to shape the language of the custody agreement, ask that you be given "sole educational custody," which gives you the ability to control your children's education without the other spouse's input.
C. Contact by Truancy Officers
The compulsory attendance laws are enforced by attendance officers, usually at the district level (and never by the California Department of Education). While most attendance officers work on very serious truancy cases and leave homeschooling families alone, there may be one or two who dislike homeschooling and who may try to investigate families for truancy.
It is extremely rare for truancy officers to come to the door, and the vast majority of homeschooling families never have any contact with these officials. Most (but not all) investigations of truancy cases involving homeschoolers start because the children were removed from a public or private school without first complying with one of the legal ways to homeschool, because they were involved in truancy issues prior to leaving school, or because they had come to the attention of Children's Protective Services for abuse or neglect.
If someone comes to your door, the first thing you should do is ask to see official identification. Do not allow the person in your home unless s/he has a warrant entitling him or her to enter. If you leave that person's presence, such as to retrieve documents, you should shut the door behind you until you return.
Truancy investigations can only be started if officials have the name of a child. If anyone comes asking questions, but does not know your child's name, that person has no authority. Do not tell them your child's name and politely insist that they leave. If s/he does have the child's name, the attendance supervisor (truant officer) is only authorized to verify that the student is enrolled in and attending a legal school. If your child is in a public program, give the truancy officer the administrator's name. If your child is in a private school operated by someone else, you should have a copy of the letter confirming the child's attendance. The attendance officer needs to contact the school administrator for other information. If you operate your own school, then the officer is entitled to verify that your child is attending the private school (which is why you need the letter) and that the "private school has complied with the provisions of §33190 requiring the annual filing by the owner or other head of a private school of an affidavit or statement of prescribed information with the Superintendent of Public Instruction" (§§48321.5 and 48415). Therefore, in the extremely unlikely event that the local attendance officer comes to your door, you should get the binder, referenced earlier in Section II, that has a copy of the filed private school affidavit, attendance records, and the letter on school letterhead confirming that the child is enrolled in and attending that school. (if the school was formed after October 15 in that year, you should have considered whether to file the affidavit or not for that year. See the discussion above at private_school_option.php#affidavit. Neither a truancy officer nor a social worker has the authority to obtain additional information or records. If s/he believes that s/he does, ask her/him to show you the legal authority for the request. You may want to keep a copy of the relevant code sections in your binder.
While providing these documents usually resolves the issues, in rare cases the attendance officer may, on being shown proof of the school's compliance and the child's enrollment, then claim that the private school that the children attend is not legal, and that the children are, therefore, truant. District attorneys have attempted prosecution in a few such cases, although we are not aware of a case where they have been successful. If an attendance officer attempts to escalate a claim, an attorney's help may be needed. Please contact the HSC Legal Team for possible referral to experienced attorneys.
- When Officials come knocking at your door - A true story by Elizabeth Van Bryant, HSC legal volunteer
D. Contact by Children's Protective Services
Although an investigation by Children Protective Services is extremely unlikely, anyone can be the target. All CPS cases start as a result of a referral to a governmental agency. Educational neglect alone cannot be a basis for an investigation and police officers and CPS workers cannot enter your home without a warrant. If CPS gets a report of neglect, they are required to investigate, and that investigation may include a visit to your home. It can be an unnerving and dispiriting experience.
If a social worker or police officer appears at your door, you should first ask to see official identification. Under no circumstances should you let social workers or police officers into your home without a warrant. Moreover, you should never say anything that could be interpreted by the authorities to mean that you gave permission for them to enter your home. If you need to leave their presence, such as to retrieve documents, for example, you should close the door behind you until you return. If they enter your home without your permission and without a warrant, they may be subject to a lawsuit for damages and the evidence they may seize may be excluded from the legal proceedings. Do not give up your constitutional rights.
What happens if a social worker returns with the police? Make sure they have a warrant! Be polite and non-confrontational, but firm. In order to get a warrant, the social worker needs to contact the police, the police must contact the district attorney, and the DA contacts a judge. They need to present credible evidence before a warrant can be issued. If you think there is a likelihood that a warrant could be issued, contact a criminal or juvenile dependency lawyer immediately. If they are able to get a warrant, contact a friend to come over as a witness, to take notes and videotape everything. Call HSC if homeschooling issues might be involved.
Avoiding referrals is the best way to prevent CPS intervention in your homeschooling experience. Compliance with one of the legal ways to homeschool is crucial. The following factors may result in a referral: Pulling children out of public or private school after a dispute with the school (i.e.: ongoing truancy problems); custody battles; welfare referrals; or neighborhood disputes. What can you do if you are in one of the "high-risk" groups for referral? First, it may be in your family's best interest to consider a public independent study program, a charter school offering homeschooling, or a program offered by a commercial private school. Second, know your legal rights.
If you are involved in a custody situation or are investigated by Children's Protective Services, you will need to consult immediately with a local attorney who is familiar with not only homeschool law but also 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 or can assist your attorney with homeschooling questions.
- How Can Homeschoolers Avoid Truancy Officers or Children's Protection Service?
- Responding to a Visit from Children's Protective Services
- Protecting Ourselves from Truancy and CPS Investigations: Avoiding Referrals
- Children's Protective Services, Educational Neglect and Homeschooling
E. Welfare Benefits
Families should be able to receive welfare benefits and still homeschool their children using any of the legal options, including operating a home-based private school. As soon as a homeschool family is denied welfare benefits based on a truancy allegation, a verification of enrollment and attendance in school should be provided to the agency, together with a copy of the private school affidavit, if you operate your own school. Under most circumstances, no additional school records or information should be given to the agencies. Your local legal aid office can help you keep your benefits. If the attorney needs information about the legality of homeschooling, he or she can contact HSC Legal (or 1-888-HSC-4440) for further information. Most of these cases can be handled quickly and easily at the first contact, but become more complicated if not handled effectively at the beginning.
F. Communities with Curfews
If you live in a community with a curfew, HSC recommends that your child have a school identification card (which can be made at Kinkos) and a note from your school administrator whenever he or she is out in the community. Your child should be aware of the risk that he or she may be stopped and questioned by the police, and he or she should be prepared to show the authority the school identification card and be able to get in touch with you at all times.
F. Do public high schools accept homeschool credits when a homeschooler enrolls in public high school?
Recently a few parents have asked whether public schools can refuse to accept credits from non-accredited schools, including private homeschools. Unfortunately, the answer is yes. In fact, they don't have to accept credits from ACCREDITED private schools. This has practical implications for homeschooling families, as we discuss at the end of this article.
Public schools generally accept credits from other public schools, although we can't find anything in the Education Code or the associated regulations that requires that; we believe they probably do so under a more nebulous "full faith and credit" concept that requires one state to respect proper governmental actions taken in other states, such as California respecting your marriage license from Connecticut. For instance, if you move to California from Alabama after your child has completed sixth grade there, the local public school usually accepts that placement, even if it feels the old school was not as good as the current school. In special situations, such as a prior school permitting acceleration for a gifted child, they might quibble, and, in the higher grades especially, there will be issues about whether prerequisites for various courses have been met by classes taken at other public schools, but for the most part the public schools give credit to their counterparts throughout the state and in other states. We believe this would mean that if a child is transferring into a regular "brick and mortar" public school from a public independent study program, either a district ISP or charter school, they should respect the placement used by, and give credit for work satisfactorily completed at, the independent study program. We can't, however, find any regulations that would require that.
Individual school districts are given wide latitude in assessing the appropriate placement of incoming students who are transferring other than from other public schools. While we believe that most public schools would respect placement decisions made by private schools they think are the same as or similar to public schools (think of the more rigorous "college prep" type private schools, or the large Catholic parochial school system), they are more likely to challenge work done at smaller schools about which they know nothing, including private family schools. The following is right from the California Department of Education website's FAQs:
QUESTION: I have been home schooling and would like to enroll my child in a private or public school. The schools in my area refuse to place my child in what I believe is the appropriate grade level and are not accepting the credits my child has earned through home schooling. May the schools refuse to accept credits earned through home schooling?
CDE ANSWER: There is no law requiring that "credits" granted by a parent who has been teaching his or her own child be accepted by public or private schools. Both private schools and public schools establish their own policies regarding the evaluation and placement of new enrollees. Both have discretion to make this determination on the basis of assessments such as "end-of-course" tests or other methods they deem suitable.
QUESTION: I am transferring my child from a private school to a public school. The public school will not give my child credit for all his or her courses. Is the public school permitted to refuse credits issued by the private schools?
CDE ANSWER: California law does not require public schools to accept credits from private schools. Public school districts have the responsibility to evaluate the appropriate placement for a student. The district may make this determination on the basis of assessments, such as "end-of-course" tests or other methods they deem suitable.
HSC's legal staff can find nothing in the Education Code that contradicts the CDE's position.
If you have advocated for a different placement for your child and your child has NOT been tested, ask if there is some way to use objective criteria for placing your child, such as a formal assessment or evaluation by a district teacher, informal taking of a STAR test, or whatever they might accept. Even if the school won't accept your private homeschool credits, perhaps your child's performance on an assessment test or impression upon an evaluating teacher will allow placement in an appropriate level. Of course, if your child has used courses from a third party provider that provides certificates of completion or even grades, you can give these to the school as proof that your child has mastered the subject and need not take it again.
This situation has very practical implications for families who currently educate their children outside the public system. We have heard of very few problems for families that are moving their children into public elementary or early middle school grades at their regular age level. Where the problems start occurring is at the high school level. High schools believe that, when they grant a diploma, they are certifying that the student has completed certain work indicated on the transcript; since admission to the UC and CSU system hinges so much on having certain accredited courses completed, we can understand the source of this concern. We think they are reluctant to give credit to work done outside the public or larger private system because they aren't willing to certify that the work was done if they know nothing about the courses.
If you think that your child might want to go to public high school, or if you foresee yourself wanting them or needing them to get a public high school diploma, you would be well advised to have your child enter the public system before high school starts, and preferably no later than the beginning of eighth grade, so that they can complete courses that would satisfy prerequisites for high school classes. We have heard, anecdotally, that a number of public high schools are "sick of homeschoolers coming to us when their kids are starting senior year and asking us to admit them as seniors and issue them diplomas as a blessing, validation, or last ditch attempt to correct the work they did outside the system."
The Legality of Private-School Homeschooling in California, by Stephen Greenberg
Appellate attorney Stephen Greenberg has substantially revised his 1993 essay on the legality of R-4 homeschooling. The 2000 version covers all the bases—from an introduction to our system of law, through in-depth analysis supported by legal citations, to point-by-point arguments against the anti-homeschoolers' positions.
Download this essay. A paper copy can be obtained by contacting HSC at (888) HSC 4440.
The Legality of Homeschooling Using the Private-School Option, by Linda Conrad Jansen
If you find that you need to provide a more thorough written explanation of the legality of operating your own private school, you may download a legal brief prepared by HSC's former legal chair, Linda Conrad Jansen. If you do provide this to anyone, please give it to them in its complete form or contact HSC Legal if you need assistance.
Reprinted with the permission of the HomeSchool Association of California. © 2007–2008 by HomeSchool Association of California. All rights reserved.
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