From HSC Legal Re: Controversial California Legal Decision--PLEASE READ, DO NO-T PANIC!

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