The Private School Option
by Debbie Schwarzer, Esq., Linda J. Conrad, Esq., and Elizabeth Bryant, Esq.
Children are exempt from compulsory attendance if they "are being instructed in a private full-time day school by persons capable of teaching." (§48222) A private school has been defined as "any school, whether conducted for profit or not, giving a course of training similar to that given in a public school at or below the twelfth grade, including but not limited to schools owned or operated by any church." (Vehicle Code §492.) This broad definition includes home-based private schools as well as private school cooperatives and private school satellit programs. Whereas some of the private school programs operated by others may benefit some families, many families establish their own private schools. This section discusses how to do that.
A private school is established by following the requirements in the Education Code. Once the school has been established, it must file a private school affidavit annually (§33190.) This affidavit does not establish a school; it merely lets the California Department of Education (CDE) know that a school has been established. Any individual may establish a private school in any location without a teaching credential or a business motive as long as he or she follows these statutory requirements.
Children in private schools in California are not required to take any standardized tests. The legislature has clearly chosen to let parents determine whether their children are being educated satisfactorily.
All California private schools, those home-based and those not, are required to keep the following records:
- Attendance records (§48222)
- Courses of study offered (§33190)
- Faculty qualifications (§33190)
- Criminal record summaries (§§33190 and 44237)
- Immunization records or waivers (Health and Safety Code §120335.)
- The private school affidavit (formerly known as an R-4) (§33190)
We recommend that you keep these records in two separate binders. The first binder should hold the records that a government official, such as an attendance officer, is legally entitled to see without a warrant or a subpoena: a copy of the filed private school affidavit, your attendance records, and a letter verifying that the children are enrolled in and attending the school. The second binder should hold all of the other required records identified in the list above: courses of study offered, faculty qualifications, criminal record summaries, and immunizations records or waivers. Although you are required to keep these, no public official is entitled to see them without a subpoena. In fact, we believe that many of these records cannot even be seen with a subpoena. However, the law requires you to have them, and you are signing, under penalty of perjury, that you do have them.
Homeschoolers often keep additional records such as the work completed, and we recommend that you do keep sufficient records to help you substantiate work completed in case the student transfers to another school or needs transcripts for college applications. However, these records are not legally required and should not be volunteered to any government official.
Probably for reasons having to do with the separation of church and state, the California statutes are very clear that government has no right to inspect any private school teacher qualifications, student work, curriculum or the like. Health codes obviously apply to larger schools, but understand that no one is entitled to see or inspect anything relating to your school other than what is explicitly identified above.
A. Attendance Records
Attendance records can be as simple as a one-page calendar containing boxes for each day of the school year, with a notation at the bottom stating that days absent are indicated with a mark. You are free to decide the length of each school day and school year and when it is in session.
B. Courses of Study
Generally, instruction must be in English and "in the several branches of study required to be taught in the public schools" (§48222), but how or what you teach within those branches is up to you. To meet this requirement your school could 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 (these lists are fairly general and far less specific than the state standards that public schools must teach). Another alternative is to obtain a copy of the courses of study offered by a local public school.
C. Faculty and Employees
Teachers in private schools do not need to hold state teaching credentials, even though many state officials seem to think they do. The statute is very clear on this point. §48222 requires that the teachers be "capable of teaching," but this phrase is not explained or defined. We believe most people who can speak and read competently in English generally could be capable.
Most home-based private schools do not have any employees because the parents are the primary teachers. Parents teaching their children are the faculty. Keep updated résumés of your faculty in your school records, including their names, addresses and qualifications. If the teacher does not have a credential, list other qualifications that make him or her capable of teaching. These qualifications could include experience teaching in your school, other work or volunteer experience, undergraduate and advanced degrees, educational conferences attended, including homeschool conferences, or training sessions.
Some homeschooling families hire others to help with certain aspects of their children's education, such as piano teachers or athletic coaches. Weekly piano lessons or even daily sports lessons do not qualify these teachers as your employees. However, if you are interested in hiring full- or part-time teachers, you can do so. Any employee hired to work with your children must provide you with sufficient information to determine that he or she is capable of teaching. Additionally, you must obtain the criminal record summary and TB certificate described below. "'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." (EC §44237(b)(2).) Thus, the piano teacher or gymnastics instructor with his or her own studio, and a grandmother teaching her grandchildren without being paid, are not employees. However, 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.
D. Criminal Record Summary
§44237 explicitly states that the criminal record summary is not required for parents teaching only their children. Since most homeschooling families do not hire employees, the exact procedure will not be discussed in depth in this article. However, if you do hire others to teach your children in your home, you may need to obtain criminal record summary information on them. Each employee must submit two sets of fingerprints that the school then submits to the Department of Justice and Federal Bureau of Investigation. Further information can be obtained from your local county office of education.
E. Immunizations
What vaccinations are required for children in school? The Health and Safety Codes (hereinafter H&S) §§120335 and 120375 require all schools, including home-based private schools operated by families for their own children, to maintain documentation showing that each pupil has received specified immunizations. For a specific list of required immunizations, see H&S §120355, included in this booklet. These immunization requirements do not apply to children who are tutored under Ed. Code §48224, only to children enrolled in public or private schools.
What documentation is required? Most families are given a yellow booklet by their doctors showing the immunizations administered to their child and the dates of administration. These yellow booklets are important and should be kept with a family's important papers. If you don't have such a booklet or think it might not be up to date, contact your doctor. These booklets are not given to schools to keep. Rather, schools are required by law to keep immunization records on a particular form, called the pm286; schools copy over the immunization records from the original yellow book to the form and return the original to the family. Technically, all private schools, even schools operated by a family exclusively for its own children, are supposed to maintain immunization records on this form, which is available here [www.cdph.ca.gov/pubsforms/forms/CtrldForms/pm286b.pdf].
If your child is enrolled in a public school ISP, a public charter program or a PSP, that school will ask you for your immunization documentation so that they can prepare the required forms. If you operate your own private school, we believe that you can determine for yourself whether you wish to prepare and maintain the pm286 forms for your students. If you do not maintain the pm286 forms but have properly updated original yellow immunization books showing which immunizations have been administered, we think this is probably adequate documentation for purposes of meeting legal requirements. If you have children other than your own enrolled in your school, you should be maintaining the pm286 forms for them since you don't have their original immunization records (these should be kept by the child's parents or guardian).
Most regular brick and mortar schools participate in an online immunization database called CAIR. There is nothing preventing small private schools from joining, but there is certainly no requirement to do so.
I don't vaccinate my child. What do I do? If you decline to have any or all vaccinations given to your child because of your personal beliefs, you can exempt your child from the immunization requirements by having a proper signed waiver form in your school records. (H&S §120365.) To document a personal beliefs waiver, you can use the pm286 form available at link given above (the waiver language is on the back) or you can create your own immunization waiver that has these words on it:
If you believe your child should not receive particular immunizations for medical reasons, contact your doctor for the form. Once this form is signed by your doctor, your child will be exempted from the immunizations specifically identified on the medical waiver form. (H&S §120370).
Who is entitled to look at my school's immunization records? Private schools are required to maintain the immunization records specified above, but it is unlikely that anyone will ever want or be able to look at them. No school district or truancy officer would be entitled to examine these records (they are only entitled to see your filed affidavit and attendance records). It is possible that your local health department could ask to see them; some larger private schools have been audited and deficiencies in record-keeping were noted, but the schools were given a generous amount of time to correct the problems and no other penalties applied.
Do I need a TB test? One could read the H&S §§121525 and 121545 to say that parents are required to have updated TB tests, because all employees and volunteers in private schools must have them. Since there is an argument that parents are neither "employees" nor "volunteers" in the strict meaning of the words, it is unknown whether a court would apply this requirement to parents. If you have taken the test, by all means include the results in your records, but if you have not, you should make your own decision as to whether you wish to do so. People whom you hire as employees or volunteers in your private school having regular and prolonged contact with children would need to have an updated TB certificate.
F. The Private School Affidavit
Section 33190 of the Education Code requires that each private school file an affidavit containing specified information on a yearly basis, in the period between October 1 and October 15 for the then-current school year. Section 48224 of the Education Code states that a child is exempt from the compulsory attendance laws if enrolled in and attending a full-time private day school that has complied with Section 33190, so we believe that filing the affidavit on a timely basis is very important. Accordingly, existing private schools as well as new schools formed at the beginning of a school year should file that October and each October thereafter for as long as the school is operating. A new school should prepare all of the required documentation as described above before filing the affidavit.
Section 33190 clearly provides that the affidavit is to be filed between October 1 and October 15 for a given school year. No one should try to file early.
The CDE believes that the filing of an affidavit is a ministerial thing only; it doesn't create or validate the school. We agree with this. A CDE representative has also said that the only purpose of the affidavit is to allow them to compile a private school directory, and by stating that they don't want any affidavits after the end of the calendar year, we can guess that this is the cutoff for schools that will be in the directory. We don't agree with the view that the affidavit is only for the directory, as the Education Code also requires private school operators to promise under penalty of perjury that they're following the private school laws. Signing and filing the affidavit accomplishes this as well.
We have asked the CDE if they agree that new schools can be formed after October 15, and, if so, when these schools should file their affidavits. The CDE told us that they believe that new private schools are allowed to be formed after October 15. They said, however, that these new schools should not file an affidavit for that school year, but should just wait until the following fall to file.
We agree that, strictly speaking, this is correct. However, because the CDE isn't the only government agency that has a reason to think about whether a particular private school is "legal," we are a little worried that some other government official might interpret the requirements of Section 33190 differently. For example, an attendance officer might come to someone's door inquiring whether a particular child is attending a legal school and not truant. That official has the right to see certain papers (see discussion at Section C of Special Situations). One of those papers is the filed affidavit. If the school was formed after October 15 of a school year and hadn't filed an affidavit, it could certainly explain to the officer how the CDE interprets a new school's obligations. But that officer might look at Section 33190 and Section 48224 and conclude that the school isn't legal because it hasn't filed an affidavit. We doubt that a supervisor or a court would agree with the officer's conclusion, but any parents wanting to shut down the possibility of ever having this argument might want to think about filing an affidavit anyway.
The CDE has said, in various years, that it won't "accept" filings after January 1. In early 2005, they disabled the online filing option after that date, but put it back up when a number of people and groups complained. We think they came to understand that people can file affidavits at any time, even if it is outside the October window. We believe that the CDE does not have the authority to "accept" affidavits (although they sometimes reject them for incompleteness), and so we think that schools are still entitled to send them. If you are trying to file after October 15 and find that the online filing system isn't working, you can still file a paper affidavit. We have a sample paper affidavit available. Follow the instructions below for completing and sending the affidavit.
We believe that the online version is much simpler and recommend that the school go online to fill out this form. Affidavits are accessed online at the Department of Education website, and completed there. The current URL is http://www.cde.ca.gov/sp/ps/rq/affidavit.asp. Please be aware that all of the fields indicated as required must be completed (for instance, you cannot file with "0" students). There are several items that are not required (such as e-mail address); it is pretty clear on the system which are required and which are not.
All private schools, regardless of number of students, can file online. As of this writing, schools with six or more students are given a password and can access their affidavit from the previous year and make changes to the content if necessary. Those with fewer than six students can file online, but cannot access their prior year's affidavit. For these schools, the affidavit is completed in full each year.
Note that signed, paper copies of the affidavit are no longer mailed to the CDE after filing online. Now all schools, as part of completing the affidavit online, are signing the affidavit using an "electronic signature." The CDE must be comfortable now that an electronic signature has the same legal force and effect as an ink one (see below about discussion on perjury). As soon as the CDE receives the submitted online affidavit, it will then put the information entered into the CDE website into its database for access by school districts throughout the state. The procedures for filing the affidavit are constantly changing. For the most updated information, check the legal section of this website or the California Department of Education website (http://www.cde.ca.gov/sp/ps/rq/ ).
When you "sign" the affidavit by filing electronically, you are doing so under penalty of perjury. By hitting the "submit" button, you are attesting under oath that all the statements in the affidavit are true (for instance, that you are maintaining all of the required records). You should take this seriously. It is possible that the state could prosecute someone for perjury for clearly being untruthful on the affidavit. Everyone filing online will receive a confirmation number, and those providing an email address will receive an email confirming that the filing was made successfully. If you do not provide an email address, you will not receive any other kind of acknowledgement from the CDE, other than the confirmation number, that they have received your school's affidavit. You should, for this reason, make sure to print out a copy of your completed affidavit before ending your session, or save it as a web page that can be opened and printed later.
The fact that the affidavits are filed after the school year typically starts is not a problem. No private school can file before October 1, and the state does not claim that every private school student is truant between mid-August and October 1. If you are contacted after the typical school year begins but before October by anyone who has a right to see your school's affidavit, you should explain that no private school can file an affidavit before October 1. You can also offer to show them your affidavit from the prior year, or, if you did not file in the prior year, offer to mail them a copy when you can.
As long as you follow the private school statutory requirements, your school is a legal private school. 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, see our line by line instructions or contact the legal team.
Some people have expressed concern that filing online will increase the chance that truancy officers will have access to their information and that they will be targeted for harassment for having a home-based private school. We believe exactly the opposite to be true, and strongly encourage everyone to use the online system if possible. Some have also expressed concern that the online affidavit asks for information not strictly required by law. We are also not concerned by this. The paper affidavits filed before the 2002-2003 school year also asked for this information. Also, the information requested (phone number, school district where private school is located) is immaterial, and objecting to providing it would make a school stand out. Those with strong philosophical opinions against filing online still need to file something called a "Statement in Lieu of an Affidavit." The "Statement" must include all the information from Calif. Education Code §331910. It should also state, "I declare under penalty of perjury, under the laws of the State of California, that all information contained in this "Statement in Lieu of a Private School Affidavit" is true and correct." HSC does not support submitting "Statements," but if you choose to do this, you can find a format at http://californiahomeschool.net/howTo/sil.htm.
G. Position of the California Department of Education
The California Department of Education has had an evolving policy with regards to homeschooling. Years ago, they actively opposed parents' efforts to homeschool under private school affidavits (PSAs). In 2008, they agreed, in appellate court proceedings involving a homeschooling family, that parents could form their own private schools legally and teach their own children. Their website begrudgingly provides information about homeschooling under PSAs, while maintaining a distinct bias for schooling under the auspices of the public school sector. For a detailed analysis of the state law and federal constitutional law issues relating to homeschooling, including some of the history of how the Department of Education has viewed homeschooling, please see this essay by Stephen Greenberg, an appellate attorney whose children were homeschooled.
The California Department of Education maintains a web page entitled, Private Schools Frequently Asked Questions (FAQ). It also has added a phone number (916-319-0878) with pre-recorded information about homeschooling. Information given at this phone number is not substantially different from the information on the CDE's web page, but some content has been giving homeschooler's concern.
First, the recording states that there are three options for homeschooling: independent study through a public school, independent study through a charter school, and withdrawing a student from the public school and schooling the student privately under a private school affidavit. This is not entirely correct; some students attend private satellite programs (PSPs, or programs offered by third party private schools) and a small portion of homeschoolers use the tutoring option provided under Education Code 48224. For more information about the tutoring option, please read HSC's article on tutoring; information about PSPs is available at HSC's Private PSP article.
The CDE phone recording also states that parents who choose to withdraw their children from the public system and educate them privately are [selecting] an option for schooling at home that does not provide special education for students with IEPs. This statement suggests that children who have special needs, are in special education classes, or have an individual education plan (IEP) cannot be educated at home. Nothing could be further from the truth. Many homeschooling parents find that their special education students respond well to one-on-one teaching in a familiar (home) environment. Parents can be successful in teaching special education students at home and there are many resources to assist them in this endeavor. However, the CDE is correct to the extent that the state is not required to pay for special education and related services for a child with a disability at a private school if there is a free appropriate public education available to the child and the parents elected to place the child in the private school. In some limited circumstances, some special education services may be available for private school students. For more information about special education resources and legal issues, see the HSC's Homeschooling with Special Challenges article.
Finally, the CDE phone message states that students in homeschools under private school affidavits do not have access to California state adopted textbooks and materials, to the state's testing system, or to a recognized high school diploma. Most homeschoolers are already aware that they must purchase their own curriculum, and that they are excluded from the state's testing regimen; indeed, these are among the reasons that many people choose to homeschool. Families can, of course, purchase whichever textbooks they desire, and there are many alternative testing services available to homeschoolers who want to use them. We are concerned, however, about the strong language regarding a recognized high school diploma. Just because a diploma of a private school, including a home-based private school, may not be "recognized" does not mean it is not valid. Any private school, large or small, may confer high school diplomas on to those students who have successfully completed that school's prescribed course of study. However, some institutions distinguish between diplomas issued by small private schools and diplomas issued by others, even though there is no basis for this distinction in the law. Therefore, homeschooling parents are strongly encouraged to carefully review the entry requirements for their graduating students' choice of occupation (e.g. military) or college. In many cases, including ever greater numbers of public and private colleges and universities, their private school diplomas and work product portfolios will satisfy the requirements, while in others it may be prudent for homeschool students to obtain a recognized alternative to a high school diploma in addition to receiving a diploma from their school. Two alternatives to a high school diploma that colleges and workplaces are required to acknowledge as equivalent to a high school diploma exist in California: the California High School Proficiency Exam (CHSPE) and the General Education Development test (GED). Information about these exams is available at HSC's testing article and at the CDE website http://www.cde.ca.gov/sp/ps/rq/psfaq.asp#D.
It is understandable that the public agency in charge of education should promote the public schools. But their preference for public schools should not be misconstrued as casting doubt on the ability of parents to teach their children legally themselves.
H. A Letter for Your Binder
The legal team has prepared a letter, available by clicking here that you can give to anyone who challenges your authority to homeschool or who demands to see any papers other than your affidavit and attendance records. The letter explains what statutory authority there is for parents forming their own home-based private schools and covers which documents the state has the authority to see and which it does not. We recommend that you print out a copy of this letter and put it in the binder you keep with your copy of your affidavit.
I. Notifying Your Local District
If your child is enrolled in a public school at the beginning of a school year and you later withdraw your child and establish your private school, please read the information on Withdrawing your Child from Public or Private School Mid-Year . If you have never enrolled your children in the public school, you do not need to notify anyone.
If, however, you had your child attending the public school during the previous year and did not tell the district that your child would not be attending the next year, you may wish to consider notifying them at the beginning of the next year that your child is now attending private school, so that the officials are not concerned about truancy. This is more of a concern in smaller districts with more stable populations, where the absence of a known child will be more easily noticed (large, urban districts are less likely to notice given the huge transience in their populations). Notifying the school and requesting your child's cumulative file closes the school's file on your child, and your child can not be considered truant once you have sent this notice. For more information about this, please see Withdrawing your Child from Public or Private School Mid-Year. See a sample letter you can send.
J. Private School Cooperatives
Homeschoolers may wish to consider setting up cooperative private schools in order to homeschool. Essentially, this option means that a group of parents join together to start a school. The requirements are essentially the same as starting a home-based private school. If you can agree on a school name, where it will be located, who will be the administrators, directors and principal officers, and where the records will be located, you can start a cooperative school. One person will need to request, complete, sign and file the private school affidavit. The custodian of records must keep the same records that are required for a home-based private school for a single family. These records include the private school affidavit, attendance records, courses of study offered, faculty and qualifications (including the TB test certificate), criminal record summaries (except for parents teaching exclusively their own children), and immunization records or waivers. The school should provide each family with letters confirming the attendance of their children at the school.
Unless your cooperative school holds formal and regular classes with one of the parent-teachers teaching a group of children who are not their own, the criminal record summary required by §44237 is not required. However, if your school has traditional classes where a parent is working with other children, then your school must obtain a criminal record summary for all teachers.
If your school has over 50 students and your school has a private school building, there are various building requirements that your school will need to follow. We assume here that each family will be teaching their children or a small group of children in their own home. Private schools that are conducted in private homes with fewer than a specified number of students are not subject to certain building, earthquake, and air contaminant requirements.
Selected California Statutes Applicable to Private Schools
A number of California statutes apply to private schools. These include the requirements for establishing a private school, as well as miscellaneous safety and health requirements. For statutes applicable to homeschooling see Selected Statutes. The entire California Education Code is on the State of California website at http://www.leginfo.ca.gov/calaw.html. We encourage anyone planning on operating a private school to be familiar with these statutes.