Summary of the Law
Updated January 2, 2015
An excerpt from An Introduction to Home Education
Compulsory Attendance Law
Private School Requirements
Capable of Teaching
Instruction in Languages Other Than English
Required Records Article
Please note: the information contained in this section is not, nor is it intended to be, legal advice.
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 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 12 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.”
Compulsory Attendance Law
Under the California Education Code (EC), all children between the ages of 6 and 18 must attend a public full-time day school unless they are exempted (E.C. §48200). Note that kindergarten attendance is not required. For the new school year 2014-2015, a child is required to be enrolled in school if he or she turns six years old on or before September 1, 2014.
Thus, the general rule is that children between ages 6 and 18 must attend public school. However, remember that the law provides exemptions from this rule. While there are other exemptions, each of the four options below applies to homeschoolers.
Option 1: Start your own private school. Home educators may establish private schools in their own homes. The law requires private schools to file a Private School Affidavit with the Superintendent of Public Instruction. This affidavit is intended solely to register private schools for statistical reporting purposes, and "shall not be construed as an evaluation, recognition, approval, or endorsement of any private school or course" (E.C. §48222). How to set up a private school which meets the legal requirements is discussed in the following section, "Private School Requirements."
Option 2: Enroll in a private school satellite program offered by an existing private school. The private school offering an private school satellite program must meet the same legal exemption and requirements as Option 1. Such Private School Satellite Programs (PSPs) may be composed entirely of home educators or be an extension program of a campus-based private school.
There is no more or no less legal protection or covering in our current education codes for either option 1 or 2.
Families enrolled in out-of-state schools or programs are still required by state law to be enrolled in a California private school (home-based or PSP) with a California address for its location. It is unwise and unnecessary to voluntarily mention enrollment in out-of-state schools or programs. It is not illegal in California to be enrolled in an out-of-state program as long as it is represented as a source of curriculum or services and not as a means of legal compliance with the compulsory attendance law.
Option 3: Arrange for private tutoring done by a California credentialed teacher. The credential must be for the appropriate grade level and teaching must be in the courses of study required in the public schools. Tutoring must be done for at least three hours a day for at least 175 days per year. Private school enrollment isn't required for the use of a tutor. (E.C. § 48224)
Option 4: Enroll in a charter school or independent study through the public school. The student must be enrolled in the public school and work under a written agreement that specifies minimum requirements. Families who choose this option are totally under the authority of the public school, since their children are enrolled in the public school. For more details see the section on charter schools and public schools in the appendix.
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.
School building – 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.
School equipment – 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 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.
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. While these requirements do not apply to private schools, it is probably wisest to plan for at least three hours for the lower grades and four for the upper grades. Remember, though, 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.
- 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.
- 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.
- 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 must be taught in English, although there are exceptions for students whose first language is not English.
- 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.
- 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.
- 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.
Capable of Teaching
The State of California does not require teachers to be state certified to teach in private schools. Therefore, listing teaching credentials or college degrees is not mandatory. In preparing a document that outlines your qualifications as a teacher, you will, once again, clarify your thinking by writing your philosophy of education. You should begin to think of yourself as an educator. The number one qualification is the fact that you are the parent. Do not be intimidated if you are not a state certified teacher. Nearly all parents are capable to teach their own children. Be creative, but be honest. Put down any schooling, high school graduation and above. Include work experience, skills, hobbies, interests, and any personal information that adds to your qualifications to teach such as a love of traveling and adventure, an inquiring mind, or love of reading, etc. Other qualifications can be leader of youth organizations, church school teacher, and attendance at educational conferences. CHEA of California holds such conferences twice a year. (The schools call this In-Service Training.)
Instruction in Languages Other Than English
An exception to the requirement that instruction be "in the English Language" is found in E.C. 30
“. . . . 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.