By Elizabeth Vana Bryant and Linda Conrad-Jansen
From the HomeSchool Association of California, circa Sept 2003
The California Department of Education surprised us this spring [2003] by dramatically changing their position ─ they now agree with us that homeschooling is not illegal. However they continue to state that filing an affidavit does not establish a private school. They are technically correct: You don’t establish a private school by filing your affidavit; you establish your private school and then file your affidavit.
So, you ask, “How do I establish my private school?” Answer: By teaching your children. Well, of course, it isn’t quite as simple as that: you teach your children and document that schooling process according to the California Education Code’s requirements for private schools.
The California Education Code requires all private schools to maintain the following records:
• Attendance Records (Education Code §48222)
• Courses of Study Offered (Education Code §33190)
• Faculty (Education Code §33190)
• Criminal Record Summaries (Education Code §§33190 and 44237)
• Immunization Records or Waivers (Health and Safety Code §120335.)
• The Private School Affidavit (Education Code §33190)
“I see” you say, “the big private schools maintain all these records for their students. But do I really have to do all this?”
Yes, you do have to do all this. California law requires that these documents be maintained by all private schools. If you do not maintain them, you jeopardize not only your own homeschool, but also all other homeschoolers who establish private schools. Just as one bad apple spoils the whole barrel, one unfavorable court decision about homeschooling will change the law and ruin it for all of us.
If you really feel that you cannot maintain the necessary records, please use another homeschooling option. Independent Study Programs (ISP’s) and charter schools will maintain many, if not all, of these records for you. If necessary, they will walk you through any record-keeping which you must do. (For details on these other homeschooling options, see http://www.californiahomeschool.net/howto/decisions/option.asp)
But record keeping need not be a fearsome boogie-monster. Switch hats for a moment – remove your “I’m the parent” hat, and replace it with “I’m the Administrator of our Private School” hat. Let’s walk through each of the required records, and see what you as Administrator must assemble for your private school.
Your school records must include an attendance record, which is required by Education Code §48222. The attendance record should be simple, such as one-page calendar containing boxes for each day of the school year, with a key at the bottom stating what each of your marking symbols means You are free to decide the length of each school day and school year and when it is in session.
Resist the temptation to incorporate your personal journal of homeschooling activities into your attendance sheet, unless you want to open yourself to unnecessary scrutiny Recall that a truancy officer has the legal right to see your attendance records. By contrast, you have no obligation to disclose personal records (journals, work product, etc.) to officials without a warrant. By maintaining Attendance Records separately from your personal records, you protect yourself from unwanted questions.
As a private school, you are required by Education Code §33190(f)(2) to maintain a course of study. In addition, Education Code §48222 requires instruction to be in English and "in the several branches of study required to be taught in the public schools.”
To meet this requirement, your school could simply keep a printed copy of the code sections that set forth the branches of study the state requires schools to offer. The “adopted course of study for grades 1 to 6” is set forth in §51210, and the “adopted course of study for grades 7 to 9” is set forth in §§51220, 51220.5, and 51221. Copies of all these code sections (and others) are available on our website. You can also obtain courses of study from other sources such as World Book http://www2.worldbook.com/students/course_study_index.asp or the California State Board of Education http://www.cde.ca.gov/standards/
The course of study for children in grades 1 to 6 must “include instruction” in all of the subjects listed (§51210). In grades 7 to 12, instruction must be “offered” in the subjects listed in the code section. In any case, you are free to decide how to cover each subject. A court may decide that your school is illegal if certain subjects are not offered (See In re Shinn (1961) 195 Cal.App.2d 683.), however it would seem that there is plenty of room for most homeschooling styles within the concepts of “include instruction” and “offered”.
Your school must maintain “the names and addresses, including city and street, of its faculty, together with a record of the educational qualifications of each” as required in Education Code §22190.
For most home-based private schools, the parents are the faculty. To fulfill this requirement, update your résumés and file them with your school records. Include your name and address. Most homeschooling parents do not have teaching credentials, so list on your résumés other qualifications that make you capable of teaching. These qualifications could include work or volunteer experience, undergraduate and advanced degrees, educational conferences attended (including homeschool conferences), training sessions, or prior experience teaching in your own private school.
If you hire tutors to school your children, you must maintain information regarding their qualifications.
Additionally, your school should maintain a copy of an updated TB test in each teacher’s file. Current TB tests are required of all school teachers, even parents teaching their own children. At this time, there does not seem to be an exemption available from the Health and Safety Code requirement for all teachers to have current TB tests.
Admittedly, some parents with strong personal beliefs opposed to immunization have taken a calculated risk and completed an exemption form for themselves, based on the ones which they complete for their children. (See the section below on immunizations.) We stress that creating your own exemption form does not fulfill the letter of the law; the decision to take this legal risk must be weighed against all other factors.
Good news: Criminal Record Summary (Education Code § 44237) is not required for parents or legal guardians working exclusively with their own children. If you aren’t hiring others to teach your children, move on to the next section!
If you do hire employees to teach your children in your home (and the key word is “employees”), you need to obtain criminal record summary information on these teachers. Each hired teacher must submit two sets of fingerprints to your school (you), which you then submit to the Department of Justice and Federal Bureau of Investigation. Further information can be obtained from your local county office of education.
Note that a piano teacher or gymnastics instructor with his or her own studio, and a grandmother teaching her grandchildren without being paid, are not employees; for these situations it isn’t necessary to get a Criminal Record Summary. “ ‘Employment' means the act of engaging the services of a person, who will have contact with pupils, to work in a position at a private school at the elementary or high school level . . . on a regular, paid full-time basis, regular, paid part-time basis or paid full- or part-time seasonal basis." (Education Code §44237(b)(2)) Anyone you hire and pay to teach within your home under your direction on a regular full- or part-time basis may be considered an employee. You may wish to consult with an attorney to clarify the difference between an independent contractor and an employee. Each situation is unique and can have important tax and record-keeping consequences.
As a private school you are required to obtain documentation that each pupil has received early childhood, tetanus, and hepatitis B immunizations (Health and Safety Code §§120335 and 120375. For a complete list of required immunizations, see Health & Safety Code §120355, which is on our website. This requirement is most easily filled by filing the immunization records from your doctor with your school records.
However, if immunization is contrary to your beliefs, you may file a letter or affidavit in your school file stating that the immunization is contrary to your beliefs, an your child will be exempted from the immunization requirement. (Health and Safety Code § 120365.) An exemption form can be found at http://www.pacheco.k12.ca.us/form/Immunization.htm In special cases, a medical exemption can be obtained from your doctor if your child’s physical condition is such that the immunizations are not considered to be safe (Health and Safety Code § 120370).
An Affidavit is simply a written declaration made under oath. The Private School Affidavit (previously known as form R4) is the document with which you declare that you have established a private school. Note that we use the past tense when we say “have established”. You establish your private school by assembling the above-described documents, and by teaching your children. Filing the Affidavit is a statement that you have done these things.
Affidavits are available online at the Department of Education website at http://www.cde.ca.gov/privateschools/form.asp?formtype=blank . Fill out the private school affidavit carefully and accurately, return it in a timely manner, and keep a copy of it with the records listed above. If you have questions about filling out the private school affidavit, go to the legal section of the HomeSchool Association of California website at www.hsc.org or contact the legal team at [email protected].
One final note on records: if you are visited by truancy officers, the ONLY records which they have a legal right to demand to see, are your attendance records and a copy of your private school affidavit. All the other records which we have mentioned above should be kept in a separate file, away from your attendance records and your affidavit.
See? There really aren’t that many records required to establish a private school. Record keeping isn’t that hard after all. What’s the best part? As long as you follow the private school statutory requirements, your school is a legal private school.
So, each September, start a new ritual: take some time to review your private school’s records and put them into order for the coming school year.