Home School Court Report
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November / December 2005

A not-so-bright IDEA
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Protecting parents with special needs children

Homeschooling families have been fighting the federal government's encroachment on their educational liberties for many years. One of these battles began in the late 1990s, when some local school districts (also known as local education agencies, or LEAs) began insisting that parents submit their special needs children to public school evaluations to determine if the children were eligible for special services-regardless of whether the parents intended to accept such services. The LEAs mistakenly believed that under the Individuals with Disabilities Education Act (IDEA), they were required to perform such evaluations.

Although Home School Legal Defense Association immediately began to oppose this misinterpretation of the law, the U.S. Department of Education sided with the LEAs. On an individual basis, HSLDA attorneys were able to work with most school districts to avoid major confrontations, but the incidents persisted. One became so contentious that HSLDA filed suit against the Missouri Department of Education. (See cover story.)

Meanwhile, HSLDA's National Center for Home Education began working with Congress to change federal law, clarifying that the evaluation requirement only applies to students who receive special services. The 2004 reauthorization of IDEA contained a provision making it clear that an LEA is not required to pursue an evaluation if a parent objects. Unfortunately, in a last-minute change, this provision was removed from the final bill before it was passed and signed by the president.

"This was our last chance for another six years-until the next reauthorization of IDEA-to protect the freedom of homeschooling families with special needs children through legislation," said NCHE Director of Federal Policy Caleb Kershner. Immediately pursuing other solutions to the problem, the National Center contacted the House Education and Workforce Committee, urging committee members to do all they could to influence the Department of Education's regulations. The IDEA legislation was still vague enough that interpretive language could be added to the regulations to protect parental rights.

In February 2005, the U.S. Department of Education took initial written public comments on the new IDEA law. Through HSLDA's encouragement, the department received letters and emails from homeschoolers everywhere, urging the department to clarify that public schools are not required to pursue an evaluation of a child who is not attending public school and is not receiving IDEA services. HSLDA staff also met with the officials responsible for drafting the IDEA regulations, further explaining the need for this clarification.


In June, the initial proposed regulations were made public. "Amazingly, the proposed regulations not only clarified that LEAs are not required to pursue an evaluation, but they actually prohibited LEAs from conducting an evaluation unless the child is in public school or receiving and seeking IDEA services," said Kershner.

During the 90-day comment period on the proposed regulations, HSLDA, 28 state and national homeschool organizations, and over 500 homeschooling families urged the department to keep the clarifying language in the final regulations.

"The department was impressed by the number of homeschooling families who submitted comments," said HSLDA President Mike Smith. "This was an unusually large outpouring of grassroots participation that I think the department does not normally experience."

As the process continues, homeschooling parents are fighting hard to make sure their rights are preserved. Michelle, a homeschool mom from Texas, expressed her concern for her son's continued progress and quality of life if forced to attend an LEA: "He has severe cognitive and developmental delays. The local LEA has no idea how to help him. Since homeschooling, he has become a functioning member of our household."

While the regulations are still not final, they are nearly complete. HSLDA will keep you informed of further developments as we lobby for homeschool freedom.