Monday, March 10, 2008

More About The CA Homeschool Case

Some good things have been happening with the CA homeschooling case that I wrote about last week. Below are a few lengthy articles I have either been emailed or found about the case. For those of you who feel like wading through them, it will help you be more informed as to what exactly is going on. As the last article states, there has been quite a bit of hype and rumors surrounding this, and that makes it hard to know what to believe. I have included this information to do my part to squelch some of the hype. All in all, I can see God at work in what could have been a bad situation.

Go here to read about Ah-nold's (the governor's) support of homeschoolers.

And here is an update of how God is continuing to move, with some tips on what we all can do:

I am thrilled to announce that we have been offered help by two of the best law firms in the state (and country). The firms will be helping us on a pro bono basis. That means they will donate (very expensive) attorney time to help us figure out the best strategies for dealing with the court issues, and they will help us prepare and file the letters and briefs that we need.
Wilson, Sonsini, Goodrich & Rosati, which is headquartered in Palo Alto, will be representing HSC. They had helped HSC back in some of the dark days of Delaine Eastin's time, and their thorough research helped us feel more comfortable that the advice we were giving the world about private homeschooling was correct. In the spirit of full disclosure, you should know that I worked there for many years, but they made the decision to go forward because they think the case presents interesting legal issues and they'd like to be on our side.

They will be working very closely with another firm, Baker & McKenzie, which has 150 offices around the world and, conveniently, one across the street from WSGR in Palo Alto. Jerry Salcido, who has been a member of the HSC legal team for several years, is an attorney at that office, and his firm has graciously agreed to donate their services as well. Because we couldn't have two firms working for HSC, Baker and CHN have agreed that CHN will be their named client.

We believe that HSC and CHN's interests in this case are very similar. We have similar membership profiles, we want the same results, we both think that help from professionals in dealing with the Supreme Court will be invaluable. The firms will consult with each other to make sure they are not duplicating efforts, but that they also aren't leaving any important arguments out. They will also try to coordinate their efforts with the other groups with which HSC and CHN have been working, HSLDA, CHEA and Family Protection Ministries.

I am very excited by this development. I know we're all a smart bunch of people, and maybe we could put these papers together ourselves, but experience here can make the difference. These firms have the experience. I hope you'll continue to support what we are doing.

What Can YOU Do?
by Kim Cameron-Smith, HSC Secretary

Some suggestions one of our members came up with are:

-- Write a letter to the editor to your regional paper.
-- Write an opinion essay on the controversy for publication somewhere.
-- Be proactive in communicating with your friends, family and colleagues; make sure they hear the pro-homeschooling story FIRST.
-- Make a donation to one or more of the legal teams preparing the official strategic action.
-- Make a proud, flaunting display of your homeschooler status, like a bumper sticker, t-shirts, etc.
Again, thanks for your support and prayers.

Appellate Court Case, Please Remain Calm
By Debbie Schwarzer HSC legal team co-chair

I have been astonished about the hype about this case. So many have been making sensational claims that parents will be criminally prosecuted, etc.
Please rest assured about a number of things. First, the law, other than this court's interpretation, hasn't changed. Parents involved in a truancy prosecution might face criminal charges, but only after a rather lengthy series of hearings and court orders, and only if the parents failed to comply with the orders. It would be a criminal contempt charge, which isn't nothing but doesn't land you in Pelican Bay.

We have never known conscientious parents ever to be prosecuted under truancy laws to the point of contempt charges. It's highly unlikely.

The media also appear to be saying that no one can teach their children without a credential. I am not certain that the holding is that broad, and I also doubt it would survive legal challenge.
The holding really applied to private ISPs (there are persistent mistatements, that began with fact statements in the case, that the family was enrolled in a charter. Obviously a school with the name "Christian" in it wouldn't be a public charter. It was a private ISP). It could be read by someone reading broadly as applying to any situation where the child is not continuously in the presence of a credentialed teacher.

The court started on a very slippery path of appearing to think that some situations were OK and others weren't, effectively trying to enact an entire code of regulations for governing this situation from the bench. He hasn't been given the constitutional authority, of course, to do this.

How do we get rid of this case?

There are a number of paths. One is seeking actual review by the Supreme Court. HSC and at least several of the other major groups' legal teams aren't in favor of that. Even if you could get the court to accept your petition (they only take 3-5% of cases), the chances that it will be decided the way you want aren't real good. It's a very dangerous road to take, because if the Supreme Court were to affirm the appellate court ruling on either of the main points (constitutional or statutory), there aren't many options left. The constitutional argument, of course, could be appealed to the US Supreme Court, but the statutory case about the proper interpretation of the California Education Code could not. California Supreme Court is the last stop on that road. If that happens, then you have two bad choices that I'll discuss below.

There is another much easier choice, and it's the one we want, as well as the one being trumpeted in the HSLDA petition. You ask the California Supreme Court to depublish the opinion, or, in other words, have them say that while this might have been the right result in this particular case involving this particular set of facts, the court finds that the reach of the opinion is overbroad and should not become law for the entire state. That is the choice we all (meaning HSC and, I believe, the other groups) want.

You get this by filing a letter with the Supreme Court in compliance with the applicable rules of court. While anyone can file one by stating their interest, we DO NOT think it is an appropriate use of grassroots activism. We DO NOT want every HSC member or HSLDA member or grandmother or irate citizen dashing off their letters to the Supreme Court. There are sober, measured, legal arguments to make about why depublication is appropriate, and those arguments are made after researching the applicable standards, etc. The Supreme Court will not be swayed positively by public outcry. In fact, it could backfire, and backfire badly.

If the Supreme Court affirms on the statutory points, then the two bad choices are to either seek legislation or to do nothing and hope that a further case is brought that can involve a better set of facts and better explanation of the issues (and reaching a better result). Both are very dangerous. Legislation isn't the answer because of the extraordinary strength of the teachers' union. It is unlikely we will see any legislation ultimately pass that gives us the freedom we have today. And the second choice is dangerous. I know lots of families that would make terrific test case defendants -- they're conscientious, they actually get their kids educated, they follow the laws. But we don't get to pick who the family is. As a friend of mine said, we couldn't have gotten a worse set of facts for this case if we had a contest.

We are trying to get one or more of the fanciest law firms in the state to help us on taking the fangs out of this case. We know what we're doing. Please let us do our jobs.

I would be personally, professionally, and, as a representative of HSC, globally grateful if everyone on this list would calm down and ask others to calm down. Specifically, I would ask people:
a. Not to write to the Supreme Court or any court.
b. Not to talk to their legislators or make any public statements about a need for legislation.
c. Tell their neighbors, friends, lists, groups both of the above and to educate them about the choices available and about how panic isn't necessary, marches on Sacramento aren't necessary, etc.
I wish this were the type of situation where we could put the fury, passion and energy of the members of this list to good use. Trust me, if we end up having to go the legislative route, we will have that situation at some points. But this isn't that type of situation, and too many folks stirring things up hurts instead of helps.
Thanks for listening.
Debbie SchwarzerHSC Legal Team Co-chair
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Lori said...

I have always homeschooled our four kids and have been following this story as well. I had not read these articles yet, so thanks for sharing.

Sisterlisa said...

Thanks for linking to my blog MaryBeth. I had no idea you read at my HomeSpunLife. ((hugs))

All the support and prayers are SO appreciated by the homeschoolers in California.

Jenni said...

Thank you for all the great information! It is truly a scary thought to consider what would happen right under our noses if not for folks who are diligent about keeping their eyes open for these crazy rulings, and others who will fight to keep them from permanence.

Charlene Kidd said...

We have been following this one too. Thanks for the great How are the house selling and looking going?

Emily the Great and Terrible said...

As a homeschooling mommy, you can bet I'm following this story. Thank you for sharing your take on it! Great blog, btw.