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Legal Memorandum on Homeschooling in Texas

by Christopher J. Klicka

Updated May 2011

Homeschooling is a popular educational alternative in Texas and throughout the country. It is estimated that nationally, nearly 2 million children are being homeschooled. In Texas, homeschools have been legally recognized as private schools. As long as a homeschool uses a written curriculum and teaches the five core subjects of reading, grammar, math, spelling, and good citizenship, it is legal. See Texas Education Agency, et al v. Leeper, et al, 893 S.W.2d 432 (Tex. 1994). Homeschools do not have to register with the school district, submit to home visits, or submit their curriculum for approval by the school district.

The Leeper case was initiated in March 1985 after approximately 150 innocent homeschool parents were prosecuted as a direct result of school districts relying on a 1981 Texas Education Agency (TEA) policy. This policy stated that “educating a child at home is not the same as private school instruction and therefore, not an acceptable substitute.” This, in effect, outlawed homeschooling in Texas.

The Home School Legal Defense Association (HSLDA), a national, nonprofit association dedicated to protecting the right of parents to teach their own children at home, joined with several Texas homeschool families and curriculum providers to bring this class action civil rights suit. They sued all the 1,060 school districts in the state and the Texas Education Agency for violating the homeschoolers’ civil rights under 42 U.S.C. Section 1988 and Section 37.009 V.T.C.A. Civil Practice and Remedies Code. HSLDA and the other homeschool plaintiffs retained attorney Shelby Sharpe of Fort Worth to file suit and handle the case. In April 1987, the Tarrant County District Court ruled in favor of the homeschoolers. Subsequently, the state and school districts appealed.

Trial Court Decision in Leeper Legalizes Homeschools

In Leeper, the trial court established that homeschools are completely legal and described activity at home that would constitute a school. The court stated that a homeschool is a legally operating private school if the school-aged children involved are:

pursuing under the direction of a parent or parents...in a bona fide (good faith, not a sham or subterfuge) manner, a curriculum consisting of books, workbooks, other written materials...or any combination of the preceding from either (1) a private or parochial school which exists apart from the child’s home or (2) which has been developed or obtained from any source [as long as] said curriculum [is] designed to meet basic academic goals of reading, spelling, grammar, mathematics, and a study of good citizenship1...
Leeper, p. 10.

Therefore, if a homeschool fits the above description, all school districts in the state of Texas were enjoined by the Court from initiating charges against the family under either the truancy code or the child in need of supervision statute.

Therefore, any private school operating in the home is a bona fide private school provided that, upon the school district’s request, the parents assure that 1) the homeschool uses a written curriculum, and that 2) the curriculum covers reading, spelling, grammar, math, and a course in good citizenship. No other requirements apply to homeschoolers.

Under Texas law, then, a private homeschool is considered legal merely upon the assurance by the homeschool parents that the minimal standards enunciated in the Leeper case are being met. The school then has the burden to prove that the family, who makes such an assurance, is a fraud. In the meantime, the school district has no authority to monitor the homeschool nor does it have any prior approval authority. If a school district has evidence that a homeschool family is lying and really does not have a written curriculum in the five required subjects, then and only then could the family be properly pursued under truancy.

Concerning standardized testing (for proof of grade level), the court unequivocally declared:

... this Judgment is not to be interpreted as requiring standardized tests in order for there to be compliance with the interpretation made by the Court of section 21.033(a)(1).
Leeper, p. 13.

Court of Appeals Decision in Leeper

On November 27, 1991, the Texas Court of Appeals completely affirmed this ruling on appeal in Texas Education Agency, et al v. Leeper, et al, 843 S.W.2d 41 (Tex. App.—Fort Worth, 1991). The Court restated and confirmed all aspects of the trial decision. The Court stated that the Texas Education Agency “deprived the homeschool parents of equal protection under the law” since their private schools in the home were unfairly discriminated against “on the sole basis of location within the home,” rather than outside the home. Id., at 51.

The Court of Appeals emphasized,

We therefore hold that such ground of difference does not have a fair and substantial relation to the object sought, namely, the education of all school-age children in either a public or a private or parochial school, with the result being that all parents of children receiving education in private and parochial school were not treated alike...thus depriving the homeschool parents of equal protection under the law. (Id., emphasis added)

In other words, any attempt by the state to treat private schools which meet in a school building with many students differently than a private school which meets in individual homes is a denial of the parents’ equal protection rights under the law. In Texas, therefore, parents who are teaching their children in compliance with the requirements of private schools are legal. To refuse to recognize them as legal is to deny them equal protection under the law. The Court added that homeschooling has historically always been a legitimate form of education in Texas.

Furthermore, the Court of Appeals in Leeper upheld the lower court’s permanent injunction which prohibits “all school officers from initiating prosecutions” under the compulsory attendance law or juvenile code against homeschooling parents.

Texas Supreme Court Decision in Leeper

On June 15, 1994, the Texas Supreme Court handed down a unanimous decision in favor of the homeschool plaintiffs in Texas Education Agency et. al. v. Leeper, et. al 893 S.W.2d 432 (Tex. 1994). This decision by the highest court in Texas completely affirmed the Texas Court of Appeals decision in 1991 and the Tarrant County District Court decision in Leeper reached in 1987.

The Court reiterated the history of homeschooling in Texas stating that at the beginning of this century “no more than ten percent of school-age children attended public schools, according to the uncontradicted evidence at trial and as there were few private and parochial schools in the state, many children were taught at home.” The Court emphasized that from 1915 until 1981 “a child pursuing a bona fide course of study at home designed to meet the basic educational goals of reading, spelling, grammar, mathematics, and good citizenship was considered to be attending a private school.”

The Court also emphasized that the compulsory attendance law of 1915 “did not end home schooling...and the state never attempted to prohibit or even restrict home schooling or to allege a violation of the compulsory attendance law based solely on a child being taught at home until 1981.” The Court then pointed out that the Texas Education Agency (TEA) in that year had a staff attorney write an opinion which erroneously stated that “the compulsory student attendance laws of the state of Texas did not permit students to be taught at home.” This of course began the rash of prosecutions across the state in the early 1980s. The Court clearly condemned this opinion of the TEA.

Courts at all levels of the Leeper case formally recognized the right of parents to homeschool and limited the state’s power to monitor homeschooling. Homeschools are legally presumed to be bona fide if the parents provide an assurance that the five subjects delineated in Leeper (reading, spelling, grammar, mathematics, and the study of good citizenship) are being taught.

Once this assurance is received by the school district, absent probable cause indicating that the school is a sham, the school district has no further authority to investigate, approve, monitor, or in any other way attempt to determine if the “school” is a bona fide homeschool.

Commissioner of Education Memorandum on Homeschooling

On October 4, 1995, Mike Moses, Commissioner of Education, issued a memo on homeschools stating, “It is the current opinion of the Commissioner of Education and the Texas Education Agency Legal Counsel that a written statement of assurance, provided by the parents to the school district, meets the requirements of Leeper and verifies compliance with compulsory attendance laws.”

Texas Legislature Recognizes Homeschooling

In 1989, the Texas legislature exempted private and parochial schools from new requirements for schools, and in the process, confirmed that the term “private school” includes homeschools: “Nothing in this act applies to students in attendance upon a private or parochial school, which includes home schools, in accordance with § 25.085, Education Code.” See Acts 1989, 71st Leg. CH. 658, § 11.

Additionally, the Texas Legislature requires state agencies to protect parents’ rights:

“The department [of Protective and Regulatory Services] is the state agency with primary responsibility for...providing family support and family preservation services which respect the fundamental right of parents to control the education and upbringing of their children.” Tex. Hum. Res. Code § 40.002 (b)(2).
“A state agency may not adopt rules or policies or take any other action that violates the fundamental right and duty of a parent to direct the upbringing of the parent’s child.” Tex. Fam. Code § 151.005.

Conclusion

Homeschooling is legal in Texas. Homeschools can operate as private schools provided that they use a written curriculum and teach math, spelling, grammar, reading, and good citizenship. School districts have no authority to approve or disapprove curriculum. Homeschools do not have to register, be tested, or hold any specific qualifications. Texas is a model state in upholding parental rights.

1. At trial, the testimony disclosed that the study of good citizenship is a civics course.



Prepared by Christopher J. Klicka, J.D. (Educational and Constitutional law attorney) Senior Counsel for Home School Legal Defense Association. Copyright August 1987. Updated May 2011 all rights reserved. May be reproduced only with permission.

THIS MEMORANDUM DOES NOT CONSTITUTE THE GIVING OF LEGAL ADVICE, EXCEPT TO THE MEMBERS OF HOME SCHOOL LEGAL DEFENSE ASSOCIATION.