GUSD attendance administrator has it entirely wrong

Dear Editor,

By way of introduction, I am an attorney and president of Home School Legal Defense Association, a national advocacy organization for homeschooling established in 1983. One of the benefits our 80,000 homeschooling members receive is representation should their legal right to homeschool be challenged. Our member families in California, and specifically, in the Gilroy area, are outraged by the letter to the editor published Friday, May 27 authored by Frank Valadez, Gilroy Unified School District Attendance Officer.

Their concern centers on Mr. Valadez’s misrepresentation of the law as it pertains to home educators in California. The United States Constitution as interpreted by the U.S. Supreme Court guarantees parents the right to teach their children at home. This right is a fundamental right (of the highest order), being recognized as a liberty interest under the 14th Amendment Liberty Clause.

California recognizes this fundamental right pursuant to the private school exemption which is found at Ed Code sec. 48222. Although many of states have specifically recognized homeschooling by way of statute, California, like 11 other states, recognizes homeschooling through the private school exemption. Home educators that have established a private school in their home are under the same law as the brick-and-mortar private school down the street.

In fact, Ed Code sec. 48222 and sec. 33190 require any person establishing a private school to annually file – under penalty of perjury – an affidavit that he or she has complied with the requirements in Ed Code sec. 48222.

Public school officials who interact with private schools in California have only the authority that is expressly provided by statute. The statutory scheme in California limits a public school official’s authority vis-à-vis private schools to verifying attendance of suspected truants. In other words, if a child is not attending a public school in California, he must be exempted from attending public school by being enrolled in a private school or tutored by a certified teacher. If there is a report that a child is not attending public school, the public school officials have the authority to verify that the child is not truant. It is the nature of the “verification” that Mr. Valadez misunderstands.

Mr. Valadez goes through a list of requirements which he characterizes as a “request for exemption” from compulsory attendance. He asserts that the GSUD has the authority to “approve” private schools in California. Not true. The only authority Mr. Valadez has as it relates to children attending private school is when there is an issue of truancy of a particular student. Mr. Valadez would then have the authority to determine whether the child was exempt from public school attendance or not. For a child being homeschooled through the private school exemption, he would have the authority to verify that the private school affidavit has been filed with the Superintendent of Public Instruction. If an affidavit has been filed for the private school the child is attending, this terminates his authority and the child is deemed exempt from public school attendance.

Neither Mr. Valadez nor any other public school official has the authority to “evaluate, recognize, approve, or endorse any private school or course.” This language is taken directly from Ed Code sec. 48222, the law dealing with private schools.

Another troubling aspect of Mr. Valadez’s letter is his reference to the School Attendance Review Board. He indicates that if the attendance officer does not approve home education, the family will be referred to the SARB, which will then determine whether the child is receiving an “adequate education.” Apparently, Mr. Valadez is not aware of Ed Code sec. 48321.5(e), which deals with the issuance of subpoenas for parents’ attendance at SARB hearings. It provides that if it is verified that a minor is enrolled in a private school that has filed an affidavit pursuant to Ed Code sec. 33190, neither the student nor their parents can be compelled to attend a SARB hearing. In other words, there is no jurisdiction by public school officials over children enrolled in private schools where the private school has filed an affidavit.

We simply could not allow this misrepresentation of the law in California to go unrefuted.

Michael Smith, President, Home School Legal Defense Association

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