The Home School Court Report
VOLUME IV, NUMBER III
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Summer 1988
Cover
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Cover Stories

Education in the Soviet Union by Michael Farris

A Personal Note to Fathers by J. Michael Smith

Victory in Hawaii

The School Year in Review: Contact Countdown

California Update

Ohio Private Schools in the Home by J. Michael Smith

Home Schooling Bill Signed into Law in South Carolina

NEA, NAESP, and NASBE Adopt Positions on Home Schooling

Maine Improves

PA Victory May Come in Legislature

Michigan Gains Ground

A Letter from Alice Blackwelder

The True Origin of “Separation of Church and State”

Gimme That Old Time Education

Features

President's Corner

Across the States

C O V E R   S T O R Y

Ohio Private Schools in the Home by J. Michael Smith

Parents who have chosen to establish a private school in their homes pursuant to 3301-35-08 (the non-chartered, non-tax supported school), may have recently received a letter from the Ohio Department of Education indicating that such an arrangement is illegal. The letter further indicated that the excuse process pursuant to Ohio Revised Code 3321.04 is the only applicable law governing home schooling.

The central issue is whether a parent can establish a private school in the home in Ohio. No appellate court in Ohio has specifically addressed this issue. The letter from the Department of Education does not cite any authority for its position. Under our “separation of powers” doctrine, the Department of Education should not have the ultimate authority as to the interpretation of regulations promulgated by the State Board of Education. That responsibility is with the judicial branch of government, the courts.

By way of review, there are four areas of law which affect home schoolers: regulations, statutes, case decisions, and constitutions (both state and federal). Regulations are the lowest end of the law. Regulations are created by bureaucratic agencies such as state boards of education. Regulations are not supposed to create new legal standards, but rather, in theory, merely to “flesh out” and implement statutes enacted by the state legislatures. In practice, however, regulatory agencies have been given wide latitude, and they enact all manner of detailed and substantive rules of behavior which directly affect the lives of home schoolers.

The non-chartered school regulation was promulgated in September of 1983. The regulation may have been a response to the ruling by the Ohio Supreme Court in State v. Whisner, 47 Ohio St. 2d. 181, 351 N.E. 2d 750 (1976), which struck down accreditation requirements, teacher certification, and curriculum approval for religious private schools. At any rate, the “08” regulation provides the minimum standards necessary to establish a private religious school which is not seeking a state charter. Among other things, the regulation requires that the teachers and the administration have a bachelor’s degree or the equivalent from a recognized college or university.

Nothing in the regulation prevents the private school from being in the home or requires the exempted pupils not to be the children of the teachers. Therefore, from a reasonable reading of the statute, one would presume that a home school could qualify. In further support of that position, the Illinois Supreme Court defined a school as “a place where instruction is imparted to the young,” and Black’s Law Dictionary defines the term as “an institution or place for instruction or education.”

Therefore, the HSLDA legal staff has concluded, absent judicial decision to the contrary, that a private home school which meets the requirement of an “08” school is not obligated to obtain the excuse by the local superintendent, because the child is enrolled and attending a private school. If this is relevant to your situation and you have not already spoken to me regarding this issue, it would be prudent to do so.

Also in Ohio, the ad hoc committee appointed by the State Board of Education continues to meet to try to formulate proposed regulations regarding home schooling. The home schooling members of the committee are optimistic. However, I do not expect any final decisions prior to the beginning of this school year.

We had a successful year defending our members in Ohio. Although sixty-two member families were contacted in a potentially negative fashion, there were no truancy cases filed against a member family, and we only had to file five appeals from denials from superintendents. Of those five cases, we were able to work out dispositions favorable to our families in three cases. We had one trial which resulted in victory for the member family, and one case still remains unresolved. Thank you for all of your cooperation this year, for without it, this fine record could not have been achieved.