by Christopher J. Klicka

Homeschooling is a popular educational alternative in Texas and throughout the country. It is estimated that 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, non-profit 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 1060 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 the proper activity at home which constitutes a school (see page 10 of the Judgment). 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 citizenship...

Leeper, p. 10. (At trial, the testimony disclosed that the study of good citizenship is a civics course).

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 it under § 4.25 of the Education Code and § 51.03 of the Family Code. (p.12 of the Judgment).

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.

Therefore, school board homeschool policies must be adjusted to reflect the limitations placed on the school district by the Leeper case and the statutes. The Texas compulsory attendance law, in regard to private schools and private homeschools, is based on the "honor system." (At least 21 other states operate on a similar honor system). This means 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.

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.

In other words, homeschool families in Texas are not required to submit standardized test scores or any of the above information to the school district. The submission of such information is purely voluntary. As a result, homeschoolers can elect merely to assure the school district that they have a written curriculum and teach the five (5) required subjects. This makes them automatically exempt from the compulsory attendance laws. There is no legal requirement for them to submit anything else. If a school district has evidence that a homeschool family is lying and really does not have a written curriculum in those five (5) required subjects, then and only then could the family be properly pursued under truancy.

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.)

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.

This decision completely affirms the lower court decision by recognizing that homeschools can legally operate as private schools in Texas if they have a written curriculum and teach reading, grammar, spelling, math, and good citizenship. No other requirements apply to homeschools.

The Court of Appeals found no evidence that homeschoolers were not educating their children. The Court added that homeschooling has historically always been a legitimate form of education in Texas. The Court also held that the 1060 public school districts were not immune to the homeschoolers' civil rights action and that they were each liable for implementing the TEA's "unconstitutional policy."

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.

In short, nothing has changed. The rights that homeschoolers enjoyed since the first decision of the Leeper case in 1987 remain securely in place. In fact, the Texas Supreme Court has agreed with our positions taken with countless school districts concerning the right of homeschools to operate as private schools without being regulated.

Below is a summary of the major points of the decision by the Texas Supreme Court.

1. The Texas Supreme Court lifted the permanent injunction against the school districts prosecuting homeschoolers. The Court said that there is "no showing that school officials will refuse to abide by our decision in this case." Lifting the injunction is routine.
   

2. 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 homeschooling 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 1980's. The Court clearly condemned this opinion of the TEA.
   

3. The Court made it clear that the State Board of Education's resolution in 1986 which defined homeschooling did not moot the Leeper case; nor was the resolution's attempt to regulate homeschooling enforceable by law. That resolution attempted to define homeschooling as one that had a written regular plan of instruction, instructed students in facilities that "comply with applicable local fire and sanitation codes" and standardized achievement tests had to be annually administered and submitted to the local public school. The Court agreed with the Texas Legislative Counsel that the State Board of Education "lacked authority to clarify § 21.033(a)(1)" and cannot implement legislative policy.
   

4. The Texas Supreme Court completely upheld the lower court's decision by stating "we conclude that the district court's declaration of the meaning of "private school" in § 21.033(a)(1) as it relates to homeschools is clearly correct." The Court emphasized that a homeschool has the same status as a private school provided it uses a written curriculum and teaches reading, math, spelling, grammar and good citizenship.
   

   Therefore, local school districts still do not have the authority to review and approve a homeschool's curriculum, nor do they have the authority to conduct a home visit. Furthermore, homeschoolers do not have to initiate contact with the school district. If, however, the school district contacts the homeschool first, the homeschool does have the obligation to give a short written assurance that they are following Leeper.
   

5. Homeschoolers, under the 1987 district court decision and the Texas Supreme Court decision, still have the right to choose whether or not they want to submit test results if the local school district requests such results.
   

Under this Supreme Court decision, the burden, therefore, remains on the school district to prove that homeschooling is not taking place, rather than on the parent to prove that homeschooling is taking place. In other words, the principle that a homeschooler is innocent until the school district proves them guilty is still in effect.

The Texas Supreme Court's decision to side-step whether or not the TEA can promulgate rules over homeschooling under the Administrative Procedures Act is not harmful. The Court simply said that the TEA's authority to promulgate and the "propriety of such rules will be subject to judicial review." In other words, the Court is aware that this issue would have to be litigated separately. Based upon our reading of the law in Texas, we hold that the TEA does not have authority to regulate private schools or homeschools since that authority has not been given to them by the legislature.

In conclusion, the Leeper case decision by the Texas Supreme Court is a victory. Homeschoolers' rights are solidly protected.

Suggested Legal Homeschool Policy for School Districts
The Leeper case formally recognizes the right of parents to homeschool and limits the state's power to monitor homeschooling. It also provides a legal presumption of a bona fide homeschool, 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.

An appropriate school board policy to be adopted and implemented upon the discovery of a homeschooler within the jurisdiction of the school district would be as follows:

Compliance with the Texas Education Code 21.033(a)(1) shall be conclusive upon the receipt of an assurance from the parent of the child attending the homeschool stating that a curriculum consisting of books, workbooks, or other written materials designed to meet basic academic goals of reading, spelling, grammar, mathematics, and a study of good citizenship, are provided.

A school board has no authority to require a homeschooler to prove he is innocent. In other words, a homeschooler does not have to prove he has a curriculum that covers the five subjects. A simple assurance, as indicated above is sufficient. If the school district cannot prove that the family has no written curriculum, the school district has no authority to file charges. If they do seek prosecution without evidence of lack of curriculum, they will be in violation of state and federal civil rights laws and will thus incur personal liability to be sued under those provisions.

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.