The Home School Court Report
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Private School Option for Home Schoolers Considered

Home School Legal Defense Association member families in Arkansas have contacted us asking about the possibility of establishing a private school for their children instead of complying with the home school law. Our research on this question indicates that, while the unfavorable legal precedent from earlier court cases would make it difficult, it may be possible for parents conducting a home education program to comply with the compulsory attendance requirements through the private school option.

Section 6-18-201 of Arkansas Statutes Annotated, the compulsory attendance law, requires parents to "enroll and send" their children to a public, private, or parochial school or provide a home school. The school which would be formed by parents who are teaching their children at home would consider itself to be a private school within the meaning of this provision of Arkansas law. Outlined below are the obstacles to home schools operating as private schools, followed by an explanation of what we believe it would take to comply with the law.

The Obstacles

In 1984 the Supreme Court of Arkansas affirmed a lower court's criminal conviction for truancy against a father in Pulaski County who decided to teach his daughter at home under the concept of a private school. In this case, Burrow v. State of Arkansas, 282 Ark. 479, 669 S.W. 2d 441 (1984), the Supreme Court stated the following:

Our statute states that parents are to "send" their children to a "public, private, or parochial school." The common understanding of this phrase connotes an institution to which a child is sent and even the appellant's expert witnesses testified that the common conception of these terms was consistent with schools in the institutional sense. We think someone of average intelligence would readily recognize that appellant's educational methods do not constitute a school within the common understanding of the word. The program he devised consisted of a single student, his own child; instruction was held in his own home; there is no indication that appellant wanted to open a school, as that term is properly understood, or that his purpose went beyond anything other than educating his own child at home. There were no certified teachers conducting classes, only appellant and his wife acting as instructors, neither of whom held a college degree; instruction was done for the most part through a correspondence court, evidently unapproved by the state. Under these circumstances, the language of the statue was clear enough to appellant to put him on adequate notice that a course of home study would not constitute a school within the meaning of the statute.

Unfortunately, then, the law in Arkansas is that a parent who elects to educate a child in either a public, private, or parochial school must actually send that child away from home to attend some institution. Mere enrollment in a "private school" with instruction being conducted in the home is insufficient.

To further worsen the legal climate for parents who would like to take the position that a child may be educated at home as a student in a private school, Section 6-15-501 of Arkansas Statutes Annotated defines "home school" as a school primarily conducted by parents or legal guardians for their own children. This definition classifies any school conducted primarily by parents for their own children, whether in the home or in another location, as a home school.

In a case decided in federal court after the Arkansas home school law was enacted, Murphy v. Arkansas, 852 F.2d 1039 (8th Cir. 1988), the court talked about some of the differences between a private school and a home school. A private school was considered to be an actual independent school, away from home. The court said that it is also likely that more than one family would be sending their children to the private school. Finally, the court observed that parents sending their children to a private school have to pay money for the education.

How It Could Work

Taking into consideration these statutory provisions and court rulings about home schools and private schools, parents who desire to comply with the compulsory attendance requirements by having their children in a private school should consider the following:

(1) the children must be both enrolled in and sent to the private school away from home for a significant portion of the instruction;

(2) there should be children from other families enrolled in and attending the private school;

(3) children in the private school should receive some instruction from persons other than their parents; and

(4) the teachers should receive some form of compensation from the parents for teaching their children, although it doesn't have to be monetary.

The private school should also have other characteristics typical of conventional private schools, e.g. organized extra-curricular activities, centralized record keeping, and an administrator or headmaster who may be contacted at the location of the school.

One of the other ways of complying with Arkansas' compulsory attendance law is for the child to be enrolled in and attend a parochial school. Parochial schools are typically schools which are a ministry of a church or denomination. These schools would probably be subject to the same analysis applied by the courts to private schools in situations where a parent is conducting a home education program by having the student enrolled in a parochial school.

Given the unfavorable statutory language and legal precedent in Arkansas for the private school option for home educators, the outcome of any court challenge to this approach is uncertain. However, HSLDA is prepared to defend our member families who elect to choose this option.