KENTUCKY

Home Visits Revisited

A letter from the pupil personnel director for Caldwell County announced that she will be conducting home visits during the months of March and April. The letter, sent to home schoolers in the county who notified under the private school statue, instructed the parents to prepare and produce a portfolio of each child's work, attendance records, student progress reports and the curriculum for the subjects taught.

The director of pupil personnel cited Kentucky Revised Statute 159.040 for the authority to conduct the home visit and review the education records. Section 1590.040 reads as follows:

Attendance at private and parochial schools shall be kept by the authorities of such schools in a register provided by the state board for elementary and secondary education, and such school authorities shall make attendance and scholarship reports in the same manner as is required by law or by regulation of the state board for elementary and secondary education of public school officials. Such schools shall at all times be open to inspection by directors of pupil personnel and officials of the department of education.

Michael Smith, Vice President of Home School Legal Defense Association, responded on behalf of the families pointing out that the above code section does provide that private schools will keep attendance records and scholarship reports in the same manner as required for public schools, but that the statute does not require those reports to be available to public school officials.

Public school officials argue that because private schools are to be open to inspection, the inspection must mean an inspection of the attendance and scholarship reports. This argument does not hold water because the statute does not specify what is to be inspected. Additionally, the request to view a portfolio of each child's work and the curriculum for the subjects taught is not mentioned anywhere in the statute.

The rule of law in situations like this one is that unless the legislature specifically provides authority to a governmental agency or employee to perform a specific function, the authority is reserved to the people. Since the Kentucky Statute does not specifically give authority to public school officials to inspect attendance and scholarship reports, school officials cannot compel private school officials to turn over for inspection the aforementioned reports.

The Supreme Court of Kentucky has given guidance regarding the issue of governmental interference in the affairs of private schools in the case of Kentucky State Board of Elementary and Secondary Education v. Rudasill, 589 SW 2d 877. The Supreme Court found that the state did have a compelling interest to see that children in Kentucky are educated to become good citizens and that children be prepared to intelligently exercise the right of suffrage. However, the state's interest may not be enforced at the expense of conscience or at the expense of diversity of the parents and their children.

The Court ruled that the state had to use the least restrictive means available where private schools and parents assert that state activity interfere with their freedom to direct the education of the children. A home visit to inspect records clearly is not the least restrictive alternative available to local school districts to ensure private schools meet the state's compelling interest in education.

Additionally, private schools conducted in homes are protected by the Fourth Amendment to the United States Constitution which protects citizens against unreasonable searches and seizures. With few exceptions, entry into a home against the consent of the occupants can only be accomplished by the issuance of a warrant based upon probable cause.