The Home School Court Report
No. 3

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School District Drops Unlawful Proposal

After receiving a letter from Home School Legal Defense Association Senior Counsel Dewitt Black, the board of school directors of the Bethlehem Area School District abandoned a plan to discriminate against homeschooling students participating in extracurricular activities at the public school.

The opportunity for students receiving home instruction to participate in extracurricular activities in the public schools was created by Act No. 67 of 2005, which became effective January 1, 2006. The new law requires that students receiving home instruction who wish to participate in an extracurricular activity must meet the same eligibility criteria (or their equivalent) that apply to students enrolled in the school district.

Unfortunately, the policy initially proposed by the Bethlehem Area School District had nothing to do with the eligibility of public school students to participate in extracurricular activities. The proposed policy stated, "All students intending to participate in any extracurricular activities must take part in applicable state academic testing assessments." All public school students already take part in the state testing, regardless of whether they intend to participate in any extracurricular activity. In reality, this proposal was an eligibility policy that would apply to homeschool students only. The new law requiring school districts to permit homeschool students to participate in extracurricular activities does not permit school districts to create eligibility requirements especially for homeschoolers.

Black's letter also pointed out another reason why the Bethlehem Area School District should not impose state testing requirements on homeschool students. Federal law prohibits it. The No Child Left Behind Act of 2001 contains a provision specifically excluding homeschools from the testing requirements: "Nothing in this chapter shall be construed to affect a home school, whether or not a home school is treated as a home school or a private school under State law, nor shall any student schooled at home be required to participate in any assessment referenced in this chapter" (20 USCA 7886(b)) (emphasis added).

The Pennsylvania System of School Assessment is a criterion-referenced assessment used to comply with the assessment requirements of the No Child Left Behind Act. This is precisely the testing the proposed policy would have imposed on homeschool students. Such a violation of federal law would have placed Pennsylvania in jeopardy of losing federal funding for education.

Black's letter also threatened litigation against the school district if students from any HSLDA member families were denied their right, under the new law, to participate in extracurricular activities. After considering the legal implications of the proposed policy, the board of school directors decided to pursue a policy consistent with the new law.

— by Dewitt T. Black