OK, so the Angry Gnome has been venting all sorts of venom the last couple of days, you may be shocked to know that there is actually a way of saying the same thing without sounding like a shrill loony like me :-) A post from Debbie Schwarzer The HomeSchool Association of California 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 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 Schwarzer
HSC Legal Team Co-chair
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