Now that we have had an opportunity to read the response of
Frank Valadez to our previous Gilroy Dispatch guest column
regarding compulsory attendance as it relates to home education in
California, the area of disagreement is now very clear. The issue
is what authority the local public school attendance officer has to
verify that a private school exists.
Now that we have had an opportunity to read the response of Frank Valadez to our previous Gilroy Dispatch guest column regarding compulsory attendance as it relates to home education in California, the area of disagreement is now very clear. The issue is what authority the local public school attendance officer has to verify that a private school exists.
Mr. Valadez asserts that he has the authority to verify that the requirements to establish a private school in California have been met prior to the school’s starting. Those requirements are as follows pursuant to Education Code §48222:
• Persons capable of teaching providing instruction;
• Instruction to be provided in English (except in limited situations);
• Instruction in several branches of study required to be taught in public schools; and
• Attendance is kept in a register.
Education Code 48222 goes on to indicate that the exemption from attendance at public school for those students attending private school shall be valid after verification by the attendance officer that the private school has complied with the provisions of Ed. Code 33190. This section is the annual filing requirement of an affidavit under penalty of perjury by the owner or chief administrator of the private school, stating that the above requirements are in fact being met. Section 48222 further provides that the verification is not to be construed as an evaluation, recognition, approval, or endorsement of any private school or course.
Therefore, when there is an allegation of truancy against the child attending a private school, the attendance officer must first determine if the child is attending a private school by contacting the private school administrator. If the chief administrator indicates that the child is in attendance in the private school and not truant, the next step for the attendance officer is to verify whether the affidavit has been filed. Once the attendance officer determines from the state Superintendent of Public Instruction that the affidavit is on file with the California Department of Education, the investigation ceases.
To give the authority that Mr. Valadez asserts that he has, would violate the intent of the statute. Under his theory, he would have the authority to determine whether the teacher was capable of teaching when the statute specifically says that his authority is limited to verification of attendance and the filing of the private school affidavit, not an evaluation, recognition, approval or endorsement of teachers or courses of study.
To accept Mr. Valadez’s opinion would be to disregard the fact that the affidavit is filed under penalty of perjury creating a presumption that the school is in compliance with Ed. Code 48222. This clear language of the statute prohibits Mr. Valadez from evaluating teachers and approving course content.
In summary, Mr. Valadez’s authority vis-à-vis home educators and private schools is to investigate allegations of truancy, not approval, endorsement and recognition of private schools and courses. There is no authority under California law for local school districts to require private schools to seek approval prior to beginning operation of the school.
The bottom line is that if Gilroy Unified School District insists that parents teaching their children at home pursuant to the private school exemption have to receive prior approval, this constitutes a prior restraint of a protected constitutional right and a clear violation of statutory authority of the school district.
I am certain this is not the desire of Frank Valadez, nor the Gilroy Unified School District.
Michael Smith, President, Home School Legal Defense Association