In many states, the compulsory attendance laws are not clear, thereby giving public school superintendents virtually unlimited discretion in setting standards for homeschools. Some of these superintendents impose reasonable and limited requirements that take into account the homeschool family’s constitutional rights. Other superintendents, however, insist on imposing extremely restrictive requirements which, in effect, force the homeschool to be merely an extension of the public school. The most frequently used excuse by these superintendents when trying to justify their unconstitutional requirements to HSLDA lawyers is this: “If I waive the disputed requirements (e.g., teacher certification, college degree, home visits, approval, public school testing, etc.), homeschool children could later sue me when they grow up not receiving proper education.”
In essence, superintendents are claiming they would be subjected to “educational malpractice” claims by disgruntled homeschool students who reach adulthood without the basic skills to function in society. There are several reasons why this excuse is nothing more than a “smokescreen” by the superintendents to gain more control over the homeschooler.
First of all, “educational malpractice” is not even recognized by the courts as a legitimate claim. In a recent case in New York, DeRosa v. City of New York, 517 N.Y.S.2d 754, 756 (1987), the supreme court stated,
The Courts have uniformly refused, based on public policy considerations, to enter the classroom to determine claims based upon educational malpractice. [citations omitted]. These public policy concerns dictate that the courts not second guess the professional judgments of public school [or private school] educators and administrators in selecting programs for particular students . . .
In other words, in states where there are no clear standards for homeschools, the public school superintendent is free to make his own educational judgments concerning a homeschool programs without fear that the courts will question or “second guess” his decision later on. The court will not even consider suits where a party is asserting “educational malpractice.” Therefore, as long as the superintendent receives assurances that a regular education is taking place for the required amount of time, his job is basically fulfilled.
Constitutional Duties and Liabilities
On the other hand, the superintendent does need to be concerned that he does not impose overly restrictive requirements which violate the homeschoolers’ civil and constitutional rights. If he does enforce unconstitutional requirements, he is personally liable under 42 U.S.C. 1983 of the Civil Rights Acts. This law prohibits state officials from violating (i.e., discriminating against) the constitutional rights of individuals under the guise of the law.
In fact, superintendents and local school officials must “recognize and respond to their constitutional duty to minimize the burden which their actions impose on freedom of religion” (New Life Baptist Church v. East Longmeadow School District, 666 F. Supp. 293 ). Superintendents should be most concerned with fulfilling their constitutional duties to protect the rights of homeschoolers because they are personally liable for not doing so. Imposing restrictive requirements which violate constitutional rights is much more risky for superintendents, as far as the courts are concerned, than imposing too few requirements on homeschoolers. This is especially true in light of the fact that “educational malpractice” is virtually nonexistent as a legal cause of action.
The real concern
Public school superintendents and school officials should be more concerned with the public school’s track record than the homeschool’s. In 1983, the President’s National Commission on Excellence estimated over 27 million illiterate children graduated from public schools in the last few years. This number has continued to grow unabated. On October 27, 1987, Xerox Chairman David Kearns called public schools a “ failed monopoly producing workers with a 50% defect rate.” He said that businesses must hire workers “who can’t read, write, or count” and then spend $25 billion annually to train them. The president of the American Federation of Teachers recently testified that only one-fourth of the graduates from public schools are able to write a convincing letter or essay or to arrange a set of fractions in increasing order. These public school statistics are something to be concerned about.
Homeschoolers, on the other hand, have an excellent track record. On the average, homeschoolers have been scoring in the 80th percentile on nationally recognized standardized achievement tests. In 1982, Dr. Raymond Moore, founder of the internationally recognized Hewitt-Moore Research Foundation, studied several thousand homeschooled students throughout the U.S. and found that these children have been performing, on the average, in the 75th to the 95th percentile on Stanford and Iowa achievement tests. Dozens of surveys have confirmed this research in the past several years. In fact, the state departments of education in Arkansas, Arizona, Alaska, North Carolina, Tennessee, and Washington have verified that homeschoolers in their respective states perform above average on standardized achievement tests. Until there is evidence of a problem with homeschools, the public school superintendents need not worry about any educational liability.
In conclusion, the excuse of public school officials that they must develop restrictive policies for homeschoolers in order to protect themselves from homeschool children suing them later in life is not founded on any legal or academic evidence. Such an excuse is nothing more than a “smokescreen.”