Delaware
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Delaware

November 18, 2005

Homeschool Category Affects Special Education Services

Several homeschooling families in Delaware have contacted Home School Legal Defense Association complaining that they can no longer receive special education services from their local school district. What brought about this change in services being offered to homeschoolers?

Prior to the most recent change in Delaware's homeschool law in 2003, the statutory language placed homeschools in the "private school" category. With the revision of the statutes, 2703A of the Delaware Code Annotated unambiguously states that a homeschool "shall be considered a non-public school...." This change in the classification of a homeschool from private to non-public was sought by the Delaware Department of Education during the legislative process of amending the homeschool law. Apparently, the department's reason for seeking this change was to avoid having to provide special education and related services to homeschool students.

Congress provides funds to the states for special education through the provisions of the Individuals with Disabilities Education Act (IDEA). This federal law and its accompanying regulations provide for special services for three categories of children: (1) students in public schools, (2) children placed in private schools by a public agency, and (3) children placed unilaterally in private schools by their parents. If homeschool students are to receive any services through IDEA funds, it is by virtue of the third category. However, according to the Office of Special Education Programs of the U.S. Department of Education, the determination of whether home instruction constitutes private school placement must be made on the basis of state law. Since June of 2003, Delaware state law has placed homeschools in the category of "non-public school," not "private school." This is the reason homeschooling families in Delaware have been denied special education and related services by public school districts.

HSLDA challenged this interpretation of federal law in a Nevada case by representing a homeschooling family seeking services from the public school. The U.S. Court of Appeals for the Ninth Circuit ruled against the family, stating that Nevada had the right to exclude home education from its definition of private schools. While this opinion is not binding in the federal courts having jurisdiction over Delaware, it is certainly unfavorable precedent for any future consideration by state and federal courts. The best solution to this problem would be another amendment to state law placing homeschools squarely in the "private school" category.