OHIO

Spreading Confusion

An article appeared in the December 1995 issue of the Ohio School Boards Association newsletter which has caused concern in the home school community. This newsletter is read by virtually every superintendent in the state of Ohio, and misinformation regarding the current home school regulations could have a very detrimental affect on the working relationship between many superintendents and home schoolers.

Entitled, "Staying Home: A Look at Home Education," the article was written by staff attorney Adam C. Miller. The central problem with the analysis of the current home school requirements revolves around preeminence given to the compulsory attendance law found in Ohio Revised Code Ann. § 3321.04(A)(2) over the home school regulations established by the State Board of Education.

The author fails to recognize, first, that the legislature authorized the State Board of Education to draft regulations for home education. Second, the principle of law which governs in this situation is that the specific always overrides the general. In other words, the Administrative Code Regulations on home education are controlling in this situation (the specific guidelines), not the Ohio Revised Code (the general discretionary authority of the superintendent). The very purpose of the regulations was to bring uniform application to the excusal of home schooled children from public school attendance by the public school superintendent.

According to the article, superintendents are given a "high degree of discretion" in approving home school programs. Again, the author draws this conclusion from his interpretation of the Ohio Revised Code, which states that a child is excused from public school attendance if it is demonstrated:

(2) That he is being instructed at home by a person qualified to teach the branches in which instruction is required, and such additional branches, as the advancement and needs of the child may, in the opinion of such superintendent, require. (emphasis added)

Numerous inaccurate statements regarding the authority of the superintendent and what is required of home educators follow as the article continues.

If the superintendent is "dissatisfied with the [curriculum] plan, he or she can require a parent-within 14 days-to provide more written information or to present additional information at a conference." Contrary to the author's opinion, the curriculum information is submitted to demonstrate that the required subjects are being taught, NOT FOR THE APPROVAL OF THE SUPERINTENDENT. The authority given to the superintendent in the regulations is to review materials submitted to make ensure the regulations are being complied with, not for evaluation.

In the same vein, the author tells the superintendent that he or she has the authority to evaluate the home education program to see if it meets the child's needs. The article states:

Clearly, the superintendent must conduct a reasonable inquiry to whether the child has any special needs and whether the plan for home education meets those needs. This can include, but is not limited to, special education, gifted education and remedial education.

The state Board has already determined what information is required to satisfy the state's interest in education. That information is contained in the notification requirement. Nowhere in the regulations is such broad authority given to the superintendent to evaluate and approve any home education program.

The article continues, "Parents are encouraged to treat the code requirements as a minimum and update the superintendent and staff regularly as to their child's progress and proficiency." This issue was clearly addressed by the Superintendent of Public Instruction at the time the regulations were enacted. In a memorandum by the Superintendent of Public Instruction addressed to local superintendents the question was raised, "Are the requirements in Rule 3301-34-02 just minimum standards that local districts can exceed?" The answer was an emphatic "No. These are rules of the State Board that carry the same effect as law, and school districts may not exceed these standards."

The author asserts that each superintendent is able to draft his/her own policy regarding home schooling-but this is the very problem intended to be corrected by the State Board when the regulations were drafted in 1989. The Administrative Regulations are the current "law" on home schooling, not the local superintendent and/or school board.

The author attempted to provide a summary of the regulation requirements for notification and assessment, but again, he promulgated misinformation. He states that under the assessment option, the children's tests must be "taken with the rest of the students in the district as scheduled during the year." Any person who has carefully read the home school regulations knows that standardized testing of home school students may be provided independent of the school district as long as it is administered by "a person duly authorized by the publisher of the test."