The Home School Court Report
Vol. XXIII
No. 2
Cover
March/April
2007

In This Issue

SPECIALFEATURES
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Cover Story Next Page
by Andrea Longbottom
- disclaimer -
How Safe is the Homeschool Horizon?

On February 14, 2005, nearly 2,000 homeschoolers gathered at the Montana State Capitol—but it wasn’t to wish the governor a Happy Valentine’s Day. They were fighting for the right to keep teaching their children at home free from government intrusion. Seven proposed changes to the homeschool law required Montana homeschooling parents to either be licensed to teach in Montana, possess a bachelor’s degree, or possess a high school diploma or GED and be monitored by a state-certified teacher for two years. Among other restrictions, the changes also prohibited parents from home educating children with developmental disabilities.

...
MANY SCHOOL OFFICIALS
STILL BELIEVE IT IS
THEIR RESPONSIBILITY
TO OVERSEE EVERY
CHILD’S EDUCATION
...

It had been over a decade since homeschooling was legalized in all 50 states. The stories of parents being hauled off to jail for homeschooling belonged to the past. Mothers no longer had to whisper the words Try homeschooling! behind closed doors to parents searching for educational alternatives. The media had a working knowledge of the movement. And few critics questioned the academic success of the typical homeschooled student.

But that winter’s day in Montana provides a snapshot of the changing nature of the battle for homeschooling. “The fight is no longer to legalize homeschooling, but to protect homeschool freedom from further governmental control while continuing to push for more freedom,” says Home School Legal Defense Association President Mike Smith. “This includes improving state and federal laws as well as policies that unduly regulate and discriminate against homeschoolers.”

Homeschoolers have won legal recognition across the nation. Why are they facing challenges to their right to homeschool? And what exactly are those challenges?

In this two-part series, we’ll explore the challenges to homeschooling in the 21st century. In Part I, we’ll look at the continuing conflicts homeschooling families face with school districts that make up their own rules and with federal, state, and local officials who try to rewrite the rules. And in Part II, we'll examine the damage done by misinformed social workers, the threat of charter schools, and the growing siege against parental rights.

School districts: Finding new Frontiers Outside of the Law

Since his arrival at HSLDA 16 years ago, Senior Counsel Dewitt Black has continually faced school districts that attempt to add to or contradict state law. “As HSLDA attorneys, we find ourselves talking with school officials either on the phone or by letter, saying, ‘What you're attempting to require of these families is not authorized,’ ” says Black. “That’s probably the main thing that I deal with on a daily basis.”

In 2006, HSLDA received approximately 2,800 public school district-related calls from homeschoolers. The reasons for calling ranged from simple questions about filling out a form to frustration with districts trampling the homeschool law in order to regulate home-educating families. Black’s legal assistant, Peter Sauer, estimates that a third of the school district issues he deals with require more than just answering a question or clarifying the law for a member. Often, a letter or phone call to the district is required.

Black sees the highest incidence of restrictive school district regulations in states with hostile homeschool policies. For example, Black’s office receives one to two school district-related contacts per week from the highly regulatory state of Pennsylvania. In the summer, when Pennsylvania parents are preparing to file homeschool paperwork for the new school year, Sauer estimates that he and Black help as many as 10 families per week.

Some problems originate when school officials get creative and attempt to add to the law. One example is a letter that Pennsylvania’s Avon Grove School District sent out, notifying homeschooling families that the district’s homeschool policy had been revised. The new “requirements” included the following:

  • A homeschool must meet the school board’s definition of “satisfactory” in order to operate.
  • Parents must submit to the superintendent a written request for authorization of the homeschool, and meet with the superintendent to “demonstrate” that they have the “capability” to homeschool according to district standards.
  • Parents must provide “samples of instructional materials” to the school district prior to the district’s approval of the homeschool.
  • The district has the right to monitor the homeschool once a month.
  • The district has the right to terminate a homeschool program “if it is determined that the student is not making responsible learning progress.” 1

What Avon Grove’s letter didn’t say was that the new “requirements” had little to do with existing Pennsylvania law governing homeschooling. District officials had simply developed the regulations out of thin air.

Moving the boundary lines

Aside from adding to the law, school officials sometimes misinterpret it.

For example, in 2006, one Illinois family answered a knock at their door to find school officials on the doorstep. Explaining that they were visiting every homeschooler in the district, the officials asked the family to fill out a “homeschool registration form.” Being informed HSLDA members, this family knew they were not required by the Illinois homeschool law to fill out the form, and they sent the officials away.

Later, one of the officials returned with a truant officer. Dropping the demand for the form, they claimed the right to look at the family’s curriculum. After the mother insisted that the officials had no such right and refused to allow the truant officer to see her curriculum, the officials finally left.

The family contacted HSLDA, and Senior Counsel Christopher Klicka sent a letter to the truant officer, pointing out that the law did not allow the truant officer to see the family’s homeschool curriculum. He explained that Illinois law does not give school officials the right to enter a family’s home and review their curriculum unless the officials have legitimate evidence that the family is not complying with the law. Since the truant officer had no such evidence concerning this family, he had no right to look at their curriculum.

In late 2006, the truant officer notified Klicka that he would no longer pursue the family.2 HSLDA was able to resolve similar situations in other Illinois school districts in 2006 by explaining the state law to school officials.

Oops!

Sometimes, bad policies are simply a result of mere human error—a misunderstanding of the law or lack of knowledge about specific requirements. HSLDA can usually resolve these situations with a letter or phone call explaining what the law actually states.

One such case occurred in April 2006, when a New York school district refused to approve an annual assessment test selected for use by a homeschooling family. When HSLDA confirmed that the test was state-approved for homeschoolers, we emailed the family, who forwarded our findings to the superintendent. He thanked the family for the clarification, apologized for his error, and said he would notify other homeschooling families in the area that they could use the test.3

Misunderstandings like this can occur even in so-called “homeschool-friendly” states. For example, midway through the 2005-2006 school year, a Texas principal demanded that a homeschooling family either send a notice of intent to the public school or put their children in public school. But Texas law does not require parents to notify their school district that they are homeschooling. After HSLDA Senior Counsel Christopher Klicka sent the principal an explanation of the law, she left the family alone.4

Why do they want control?

Why do overworked, understaffed, paper-bound school districts still try to over-regulate homeschoolers?

Many school officials still believe it is their responsibility to oversee every child’s education. Some claim to be concerned about parents being inadequate teachers without government supervision, despite the well-established academic success of home education. “We have school districts that are saying, ‘Okay, we recognize that parents now have the right to homeschool, but we as public school officials should have some say over how they do it,” says HSLDA President Mike Smith.

In an interview with Ohio’s Wapakoneta Daily News, St. Mary’s City Superintendent Ken Baker said, ‘There needs to be some standardization from district to district, more highly qualified instructors, and more intervention and grade reporting.”

The article continues, “Although Baker said he knows some home educators who are very effective and many who have good intentions, the majority are simply not qualified to teach a broad range of subjects in a way that certified teachers are.”5

Judith Hale, president of the American Federation of Teachers-West Virginia, also favors increased regulation. According to West Virginia’s State Journal, Ms. Hale “said it’s the state’s responsibility to protect children, make sure they get a good education and don’t slip through the cracks.” Additionally, “Hale said teachers’ unions would like to see other changes in the home-schooling requirements [of West Virginia] to make sure children are getting the education they need.” 6

However, more government involvement does not seem to add to homeschooling’s generally excellent results. According to a 1997 study by Dr. Brian Ray of the National Home Education Research Institute, children who are homeschooled in states with higher government regulation do not perform better than children in states with low regulation. Both groups scored 36 percentile points above the national average of 50. 7

In California, the state with the largest homeschooling population, the state department of education (CDE) asked the legislature to pass a law in 2002 to further regulate homeschooling. The CDE claimed this legislation was needed because California homeschoolers were not properly supervised.

In a 2002 opinion column in the San Diego Business Journal, California State Senator Bill Morrow expressed his concerns about the effectiveness of increased government accountability among California homeschoolers: “Those in the educational establishment, the high ranking state officials, and the academic elite, argue that more government involvement is needed for the sake of accountability . . . it is worthwhile to note that the so-called accountability which will be provided by the government must not be particularly effective, given the low performance in test scores, literacy rates, [etc.,] of so many of our public schools today.” 8

Although the CDE’s proposal to the California legislature never developed into law, “ ‘proper supervision’ is the goal of the educational establishment for the future for homeschoolers,” says Mike Smith.

Locking in on the law

How can families combat the challenges to homeschooling that come from school districts? In a letter to the Southern Illinoisan online, written during the 2006 unwarranted home visits across Illinois (see page 8), one homeschooler summed it up: “These visits are harassment of home-schoolers rather than following the actual law . . . The Illinois home-school community is resolved to fight for these families.” 9

Although homeschooling is legal in all 50 states, many local school officials still need to be reminded of this fact. Who is going to remind them if homeschoolers don’t? By working together with our members and the homeschool organizations, HSLDA stands with homeschoolers in asserting the right to teach our children at home in the face of these threats.

Legislatures and Courts: New laws Proliferate

In the halls of Congress, conflict over regulations that impact homeschoolers surfaces every year. Because of the rapid pace at which legislation is introduced and amended, it is imperative that homeschoolers stay on top of issues that could directly or indirectly affect their freedom.

“There are still a lot of threats out there to parental rights and to homeschooling,” says Will Estrada, HSLDA’s director of federal relations. HSLDA’s Federal Relations Department tracks legislation that impacts homeschoolers, lobbies the federal government in support of homeschool-friendly bills, lobbies against hostile legislation, and carefully watches to see that existing legal protections for homeschooling and related issues remain in effect.

While the cause of homeschooling freedom has made significant progress in the federal government over the past few years, monitoring those freedoms takes constant attention—in 2006 alone, 6,432 bills were introduced in the U.S. House of Representatives and 4,105 in the U.S. Senate.10

Homeschoolers can help protect their freedom by being aware of the issues, and by preparing to take action when it is needed. Time and again, homeschoolers have proven that when they stand up for their rights, federal officials take notice.

The new, homeschool-friendly regulations governing the federal Individuals with Disabilities Education Act (IDEA) are a prime example of the impact homeschoolers can make. Under the IDEA, some public schools have tried to force homeschoolers to submit to special needs evaluations, even though the parents were not seeking public school services for their children.

When, in 2004, the Department of Education proposed new regulations to govern IDEA, HSLDA lobbied the department in favor of a clarification that would protect the right of homeschoolers to refuse an evaluation if they did not want public services. While the department was receiving public comment on all new regulations, HSLDA members nationwide responded in support of the clarification.

Another event that contributed to clarifying the IDEA was a case HSLDA won in early 2006 involving a homeschool family whose Missouri school district was attempting to force an evaluation of their son. In this case, the Department of Education wrote an amicus brief supporting HSLDA’s argument that homeschoolers should not have to submit to an evaluation if they do not want public services. Thanks to this court victory, HSLDA’s work, and the active support of homeschoolers, the new regulations (which went into effect in October 2006) explicitly protect the right of homeschoolers to refuse a special needs evaluation.

HSLDA continues to remind school districts attempting to require such evaluations that the law is now clear. HSLDA’s most recent IDEA court victory occurred in March 2007, when a New York federal district court upheld another homeschooling family’s right to refuse an evaluation. This long-awaited victory marks the end of a two-year battle to protect this family’s rights.

States and Towns: Losing Sight of Freedom

While monitoring “big-picture” federal legislation is vital, a look at state-level legislation also reveals threats against homeschooling freedom. “Every legislative session, there’s some effort being made to impose additional testing on homeschoolers, or to somehow restrict choices of parents in homeschooling,” says HSLDA Senior Counsel Dewitt Black.

Some laws directly affect homeschoolers, such as the homeschool regulations introduced in the Montana State Legislature in February 2005. Other laws affect homeschooling indirectly. For example, in 2006 and early 2007, several state legislatures discussed bills expanding compulsory school attendance ages.

As at the federal level, state-level action by homeschoolers is crucial to protecting freedom. In 2006, two compulsory attendance bills were introduced in the New York State Assembly—they would have bumped down the compulsory attendance age from 6 to 5. HSLDA Staff Attorney Thomas Schmidt reports, “Both of these bills failed to pass after HSLDA sent out e-lerts, and homeschoolers and other e-lert subscribers called their legislators.”

Fighting for homeschool freedom means not only opposing harmful legislation, but supporting good legislation, such as Virginia’s proposed Religious Freedom Restoration Act (House Bill 3082). This act would further protect the religious freedom of all Virginia residents in situations where state and local laws conflict with their religious convictions (HSLDA is currently using state religious freedom acts like H.B. 3082 to help protect homeschoolers’ rights in Pennsylvania and Florida).

Thanks in part to homeschoolers who contacted their legislators in support of H.B. 3082, the Virginia House and Senate passed the bill in February 2007 and it awaits the governor’s approval as this article goes to press. “Thanks to all who called in support of H.B. 3082!” says HSLDA Staff Attorney Scott Woodruff, who testified in the House on behalf of the bill.

Policies impacting homeschoolers are also generated by local municipalities. City ordinances and school district policies that affect home education keep HSLDA attorneys busy investigating homeschoolers’ inquiries and providing helpful material. Homeschoolers’ awareness of local policies, and their participation in town and school meetings, can help keep freedom-infringing policies at bay.

Courtroom battles: Watch for gathering storm clouds

Also impacting policy at these different levels are the battles for homeschool freedom that occur in courtrooms across the country. In 2006, HSLDA’s Litigation Department handled over 80 cases nationwide. Favorable rulings can establish valuable precedent for future cases and advance homeschool freedom at the state and federal level.

For instance, HSLDA’s settlement in a 2006 New Mexico case involving unwarranted social worker interviews helped prompt New Mexico to implement additional social worker training requirements. And in Camdenton v. Fitzgerald (the Missouri IDEA battle mentioned previously), the Eighth Circuit Court of Appeals’ ruling influenced the federal government to clearly establish the right of homeschooling parents to refuse a public school special needs evaluation if they do not desire public services. (See Active Cases for an update on current cases handled by HSLDA’s Litigation Department.)

Why are homeschoolers still a target?

Although homeschooling has been legal in all 50 states for over a decade, why do federal, state, and local policies continue to infringe on homeschool freedom?

“In HSLDA’s experience, the main reasons behind bad bills are similar to those behind restrictive public school policies,” says Mike Smith. “Some officials believe that homeschooling should be further controlled by federal and/or state governments, and that homeschooling gives parents too much control over their children’s education.”

While some officials (elected or otherwise) are simply unfamiliar with homeschooling, and thus may not understand the potentially harmful impact of their proposed policies, others are vocal about why they attempt to rein in homeschooling. The America’s Intelligence Wire paraphrased the opinion of Mississippi Department of Education official Peggy Peterson in 2004: “There is no way to know if homeschooled children are getting a quality education [in Mississippi], because there are no required tests to ensure that the pupil is staying at his appropriate grade level.”11

Unless officials are made aware of the research that shows homeschoolers tend to score above average, opinions such as Ms. Peterson’s can easily develop into policies that restrict homeschool freedom. (HSLDA has just commissioned a new study documenting how homeschooled students nationwide are doing academically. More information will be announced in the future.)

HSLDA Director of Federal Relations Will Estrada encourages homeschoolers to voice their concerns to their elected officials, so that homeschooling freedom is not endangered because of a lack of knowledge. By being aware of the threat that some legislation poses, and knowing their elected leaders’ perceptions of homeschooling, home educators can help maintain their freedom and continue to influence leaders to develop favorable policies.

Conclusion

It seems incredible that we should have to remind legislators and local school officials what the law says. But we do.

And these are not the only areas in which homeschoolers are finding they need to guard their freedom. In the next Court Report, we’ll continue asking the question, “How safe is homeschooling on the horizon of the 21st century?” Join us for Part II as we explore the impact of misguided social workers, the subtle regulation potential of charter schools, and disturbing national and international trends in parental rights.

Federal Legislation

Home School Legal Defense Association is keeping busy on the following federal issues.

No Child Left Behind
When this bill passed Congress in 2001, HSLDA worked to include many important protections for homeschoolers in its provisions. We are working to keep these protections as Congress debates the reauthorization of NCLB.

The Byrd Scholarship
Homeschooled students are left out of the definition of eligible students for the scholarship. HSLDA is working to ensure that an expanded definition is included in the congressional reauthorization of the Higher Education Act later in 2007.

Coverdell Education Savings Accounts
Homeschool expenses are not eligible expenses under the Coverdell ESAs, but HSLDA is working to fix this problem when Congress reauthorizes the Higher Education Act later this year.

Family Educational Records and Privacy Act
Many homeschoolers are required by state law to file information with public education officials, but these records are not protected from disclosure under the federal FERPA. We are working to ensure that homeschool data is included in the FERPA protections.

Unfair treatment of homeschoolers who work during public school hours
The Department of Labor limits when 14- and 15-year-olds may work outside traditional school hours. “School hours” has been interpreted by the Labor Department as the hours of the school district in which the student is living, not hours based on the individual child’s attendance. This regulates homeschooled students according to the school hours of public school students rather than their own school schedule, which may be much more flexible. HSLDA is collaborating with Congress to encourage a rules change in the Department of Labor that would end this discrimination.

HSLDA will keep you up-to-date on this developing legislation so that you are aware of opportunities to take action.

—Will Estrada

Endnotes

1 Dewitt Black, “Across the States: Pennsylvania,” Home School Court Report, November/December 2006.

2 Christopher Klicka, “Across the States: Illinois,” Home School Court Report, November/December 2006.

3 Thomas Schmidt, “Across the States: New York,” Home School Court Report, July/August 2006.

4 Christopher Klicka, “Across the States: Texas,” Home School Court Report, July/August 2006.

5 Annie Linder, “Honing Home Scholars,” Wapakoneta Daily News, December 5, 2006. Accessed through “Homeschool Nations-Ohio,” www.homeschoolblogger.com.

6 Beth Gorczyca, “Schooled at Home,” State Journal, August 3, 2006, www.statejournal.com/story.cfm?func=viewstory&storyid=12773.

7 “Is Government Regulation Necessary for High Achievement?” Home Education Across the United States, Home School Legal Defense Association and Brian D. Ray, 1997, www.hslda.org/docs/study/ray1997/12.asp.

8 Bill Morrow, “Home-schoolers Shouldn’t Be Targeted,” San Diego Business Journal, December 16, 2002. Accessed through Gale Virtual Reference Library, www.galegroup.com.

9 Susan Ryan, “Voice of the Reader,” Southern Illinoisan, September 19, 2006, www.southernillinoisan.com/articles/2006/09/19/opinions/voice_of_the_reader/17482746.txt.

10 The Library of Congress, “List of Bills Introduced in the 109th Congress,” http://thomas.loc.gov/home/c109bills.html.

11 Genie Alice Via, “U. Mississippi: Official Cites Miss. Homeschool Program As Too Lenient,” The America’s Intelligence Wire, October 14, 2004. Accessed through Gale Virtual Reference Library, www.galegroup.com.