Legislative Victory in Colorado
The most important victories by homeschoolers nationwide have been won in the legislatures. For the most part, court cases are only a means to “hold back the tide” of state intervention and prosecution until the various state legislatures can enact favorable homeschool laws.
For example, since 1982, twenty-one states have enacted new homeschool laws which specifically protect the right to homeschool with minimal guidelines. In all these states the new laws have virtually ended the legal conflicts that once plagued homeschoolers. Only about seven of those states changed their laws as a result of favorable homeschool cases. On the other hand, the other fourteen state legislatures which changed their laws actually overturned negative cases or prevented a potential “breakout” of cases across the state.
One of the most recent legislative victories occurred in the state of Colorado. Formerly, Colorado’s compulsory attendance law specifically allowed homeschooling if a parent was certified or if the child was “being instructed at home by a parent under an established system of home study approved by the State Board” [Colorado Revised Statutes § 22-33-104(2)(i)]. Over the last several years different regulations have been passed by the state board of education requiring elaborate approval and reporting procedures and testing by a certified teacher.
Senate Bill 56, recently passed by both the house and the senate, is awaiting the expected signature of the governor. The original draft of the bill was prepared by attorney Bill Moritz. Rory Schneeberger, a homeschooling leader, worked closely with the sponsors of the bill, Representative Bond and Senator Meiklejohn, to achieve its ultimate passage. Attorney Chris Klicka of HSLDA was called upon repeatedly to critique the constitutionality of certain sections of the proposed bill and to offer statutory language which would protect the rights of homeschoolers. After numerous time-consuming and hard-fought battles through various committees and amendments, S.B. 56 finally passed both houses twice. The end result is not ideal, but it is comparable to the homeschool laws recently passed in twenty other states. As mentioned above, all of these other homeschool laws have ended the conflict in their respective states over homeschooling.
S.B. 56 begins with a clear declaration of the right to homeschool:
The general assembly hereby declares that it is the primary right and obligation of the parent to choose the proper education and training for children under his care and supervision. It is recognized that home-based education is a legitimate alternative to classroom attendance for the instruction of children and that any regulation of non-public home-based educational programs should be sufficiently flexible to accommodate a variety of circumstances. The general assembly further declares that non-public home-based educational programs shall be subject only to minimum state controls which are currently applicable to other forms of non-public education.
Notification of intent to homeschool
The bill also requires the homeschool parent to file a written notification of intent to homeschool 14 days before establishment of the homeschool and “each year thereafter.” The forms may be supplied by the local school districts for “notification purpose only.” In the notification, the parent need only certify “the name, age, place of residence, and number of hours of attendance of each child.” The homeschool “shall include no less than one hundred seventy-two days of instruction, averaging four instructional contact hours per day.” Additionally, the homeschool program “shall include” reading, writing, speaking, math, history, civics, literature, science, and the Constitution of the United States.
This notification provision eliminates the previous “approval” authority that the state board exercised over homeschools and delegated to local school districts. No longer will the public education system be able to exercise discretionary and often arbitrary power over homeschools.
Evaluation and record keeping
In addition to the notification, time, and subjects requirements, the homeschool need only keep records and have the homeschool student take a standardized test every other year. The records must include “attendance data, test and evaluation results, and immunization records.”
Such records shall be produced to the local school district of residence upon 14 days written notice if the superintendent . . . has probable cause to believe that said program is not in compliance with the guidelines. . . .
The term “probable cause” is derived from the Fifth Amendment of the U.S. Constitution and it requires the superintendent to have substantial evidence of noncompliance. As a result of this high standard, this inspection of records will rarely be exercised.
The standardized test requirement of S.B. 56 is one of the most flexible testing laws in the country. Each child must be evaluated in grades ”three, five, seven, nine, and eleven.” This, of course, benefits the “better late than early” homeschoolers. The child must be given “the same nationally standardized achievement test used by the local school district” and the “test results shall be submitted to the local school district . . . or an independent or parochial school within the state of Colorado.” The test scores do not have to be submitted to the public school authorities as long as the child receives “a composite score . . . above the thirteenth percentile.” In addition, the test may be administered by anyone and at any location.
If the child scores below the thirteenth percentile, the private or parochial school must notify the local school district. However,
no action shall be taken until the child is given an opportunity to be retested using an alternative version of the same test or a different nationally standardized achievement test selected by the parent from a list of approved tests supplied by the state board.
If the child should score below the thirteenth percentile again, the local school district “shall require the parents to place said child in a public or independent or parochial school until the next testing period.”
Satellite school still an option
Throughout the debate over the bill, the sponsors repeated that the bill does not affect satellite schools that are connected with Colorado private schools. Therefore, families still have this option unless the Colorado Court of Appeals reverses Widefield School District v. Bohl, Case No. 87CA1360. This case, which was handled by attorney Bill Moritz of Woodland Park, establishes that children enrolled in an independent or parochial school which provides a basic academic education can be allowed by that school to be taught at home with testing by the school. Attorney Chris Klicka, on behalf of HSLDA, submitted an “amicus” brief to the court of appeals in March arguing that the Bohl decision should be upheld. Be praying that the court of appeals will rule favorably in this case.
In summary, S.B. 56, although not ideal, is a step toward securing the right of parents to educate their children at home. It provides an important “safety valve” for those families who are presently operating as a satellite of a private school, if the Bohl decision is reversed. This legislation can easily serve as a model for other states to follow since it embodies a much less restrictive means of fulfilling the state’s “court-created” interest in education than do the statutes of a majority of other states throughout the country. Most importantly, the specificity of S.B. 56 will prevent the arbitrary enforcement of the compulsory attendance law by the state and local school boards which has plagued Colorado in the past.