One part of beginning homeschooling that may be confusing is making the legal decisions, specifically deciding whether to establish a private school and, if so, how to do so properly.
Home education legalities in general and affidavit filing specifically are replete with details that can change almost annually. Some government officials attempt to make requests and demands of home educators that do not comply with the law. The following sections summarize home education law; discuss whether to establish a private school at home, explain in detail how to fill out and file a Private School Affidavit (R-4), and answer the most frequently asked questions about this process.
The fundamental right of parents to direct the education and upbringing of their children is guaranteed by the First, Ninth, and Fourteenth Amendments to the Constitution of the United States. This right has been upheld by the courts over the years. While it is not necessary to know all the cases, the better that parents understand their fundamental rights, the less likely it is that they will be deprived of those rights.
Along with at least a general understanding of parents’ Constitutional right to direct the education and upbringing of their children, it is important to understand the hierarchy of laws in the United States. Since the U.S. Constitution is the highest law, all lesser laws must be consistent with the Constitution or they risk being declared invalid. Thus, since the Constitution guarantees the right to raise one’s children, no state or local law may deny that right.
In California, there is no legally-defined entity known as a “homeschool.” Instead of having a separate “homeschool” law, California is one of several states in which homeschoolers operate as private schools. Private schools can be legally established and operate in the home just as some private schools operate on a campus. Thus, in order to be consistent with the law of our state, do not use the term “homeschool” with public school officials; rather, refer to your private homeschool as simply a “private school.”
Private School Requirements
Since anyone can establish a private school, parents have been legally using that provision for many years to establish and conduct their own private schools in their homes.
Neither the State Department of Education, nor any county or local public school districts, have jurisdiction over the establishment or operation of private elementary and secondary schools.
Before looking at the requirements, consider a few items that are not required
Size of school
There are no requirements relating to the number of pupils or teachers in a school. Thus a school can range from having just one pupil to thousands and can have just one teacher or a couple of part-time teachers as needed.
There is no requirement that schools must have a particular type of building, although schools which have more than 50 students or more than one classroom must meet certain safety requirements. So there is no restriction on establishing a small private school in your own home.
Number of School Days
There are no required number of days per year in private schools. Public schools are required by the state to offer instruction 175 days per year, with funding provided for up to 180 days. Most districts therefore require 180 days. While not legally required, it is wise for home-based private schools to operate 180 days per year. Days of excused absence are traditionally included in the 180-day total, so if you or your child are sick during the school year, you don’t need to make up those days during the summer.
There are no requirements related to school equipment such as desks, chalkboards, number of books, etc. Each school is free to determine what equipment is used in its programs.
Number of Hours
There is no required number of hours per school day for private schools. Public schools must operate a minimum of three hours and twenty minutes for grades 1-3, and four hours for grades 4-12; however, there are multiple exceptions which allow for minimum days of as low as two and a half hours, excluding recesses. Remember that home economics, independent study time, reading, discussion time, field trips, and activities can all be included in school time.
Requirements for private schools are set forth in sections §48222, §48415 and §33190 of the California Education Code. The same requirements apply to all private schools regardless of whether they are campus-based or home-based and regardless of whether they offer classroom or independent study.
Private School Affidavit
A Private School Affidavit must be filed by the school’s administrator with the California Superintendent of Public Instruction between October 1 and 15 of each year.
Capable of Teaching
The instructors must be “capable of teaching.” There is no definition of “capable of teaching” and no requirement in the education code for a teacher in a private school to hold a state teaching credential or to have equivalent training. Thus, it is the private school administrators who determine if teachers in the school are capable of teaching.
Address on File
The names and addresses, including city and street, of its faculty, together with a record of the educational qualifications of each teacher must be kept on file.
Instruction in English
Instruction must be taught in English, although there are exceptions for students whose first language is not English.
Branches of Study
Instruction must be offered “in the several branches of study required to be taught in the public schools.” For grades 1-6, the required branches of study are English, mathematics, social sciences, science, visual and performing arts, health, and physical education. For grades 7-12, the required branches are the same as those for grades 1-6, plus foreign language, applied arts, and career-technical education.
Courses of Study
The courses of study offered by the institution shall be kept on file. This could be as simple as a just a list of the subjects in item five.
Attendance records of each enrolled student must be kept in a register indicating every absence of a half day or more.
Health and Safety
There are two categories of Health and Safety Code (H.S.C.) regulations which concern all schools in California, whether public or private. They are (A) health records which must be kept in each student’s individual records (either cum file or separate health file) and which must be transferred with the student to any new school, and (B) health reports which the school is legally required to complete if received. These are explained in detail here. The Department of Health has authority to inspect these health records, but other pupil information is confidential.
“. . . . any private school may determine when and under what circumstances instruction may be given bilingually.” That section of the Education Code goes on to state:
“It is the policy of the state to insure the mastery of English by all pupils in the schools; provided that bilingual instruction may be offered in those situations when such instruction is educationally advantageous to the pupils. Bilingual instruction is authorized to the extent that it does not interfere with the systematic, sequential, and regular instruction of all pupils in the English language.”
The general rule for non-English-speaking families is this: If the parents or child do not speak English, the private school instruction may be in the family’s native language. However, there must also be instruction in English, with a goal of bringing the student to proficiency in English. Based on this requirement, families who do not speak English can learn together as part of the regular instruction. In other words, it would be appropriate for the family to use materials for most subjects in the language they speak, and then to use a program for learning English as a separate class until the English language is mastered.