Effect of Attorney General’s Opinion in Nebraska

by J. Michael Smith

Attorney General Spire has rendered an opinion that a resolution adopted by the state board of education requiring county superintendents to visit religiously based exempt schools twice a year and requiring the schools to provide results of tests is not enforceable. This ruling has received much statewide publicity. Various Nebraska newspapers have discussed the opinion both in the regular reporting columns and the editorial pages.

Mr. Spire is to be congratulated for rendering an opinion which went against the educational establishment in Nebraska. Obviously, we believe that the legal principles he relied upon were correct. Had he chosen to ignore those principles, he would not have been the first public official to do so.

The question of concern to many of you is what will the state do in reaction to this decision? The rational reaction would be to let well enough alone, relying on the reporting procedures presently in place to satisfy the state’s legitimate interest in the education of all youngsters. Under these procedures, if there is reason to believe that education is not taking place in a particular family, the education department already has the right to request a home visit in order to investigate.

But as you can imagine, some people within the educational community are not satisfied with this remedy as they have a basic distrust of the ability of parents to teach their children and/or they believe parents who withdraw their children from the institutional school setting do so to keep their children ignorant. Although the statistical evidence does not support either of these views, nevertheless they prevail. Rather than concerning itself with the few homeschoolers in Nebraska, the state needs to spend time, effort, and money on identifying why so many of its students are functionally illiterate.

Be that as it may, homeschoolers in Nebraska can anticipate that in the next legislative session, there will be pressure placed upon some legislators to introduce a bill that will monitor homeschooling in the same manner. This means that homeschoolers must be alert to the legislation being proposed and be ready to respond in an organized and consistent manner.

It would not hurt for homeschoolers to begin contacting their legislators now, advising them of the benefits of home education, and alerting them that there may be attempts to restrict, control, and monitor homeschooling. These representatives need to be informed that the law presently in place is consistent with the neighboring states of Missouri, Kansas, and Wyoming. In other words, these states have registration, notification, or curriculum requirements, but no standardized test requirements. Therefore, Nebraska’s current regulations are not out of touch with the legislative trend, but rather, Nebraska is leading the way toward more sensible state interaction with homeschoolers.

The message to legislators and other politicians must be that, factually, there is no evidence of lack of instruction among the homeschoolers; therefore, the state’s legitimate interest in education is being protected under present law. Secondly, from a legal standpoint, an attempt by the state to further control and restrict home educators would result in the same dilemma which brought about the present law in 1984.