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February 9, 2016

Protect Your Right to Keep Kids Home during Portfolio Review

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What should you do if a local portfolio reviewer asks you to bring your child with you to an annual homeschool portfolio review? The best answer for almost everyone is, “no thank you.” Here’s why.

YOUR ATTORNEY Scott Woodruff

The homeschool regulation COMAR 13A.10.01.01.E which says a parent “shall agree to permit” a portfolio reviewer to “observe instruction” is unconstitutional. The Fourth Amendment prohibits government agents from coming into your home without a warrant. A portfolio reviewer who might seek to come into your home (where instruction normally occurs) would have no warrant. Nor would she have grounds for a warrant. Forcing you to allow a government agent into your home to observe instruction violates your Fourth Amendment rights.

And it’s just as unconstitutional for the portfolio reviewer to force you to bring your child to the school office so she can watch you instruct your child. Here’s why.

It’s Not Normal

First, when the law says you must provide regular, thorough instruction, it is talking about what is normal instruction for your family. It is not talking about you putting on a show and doing “make believe” teaching in a place your child never learns and you never teach. It is widely recognized that if you want to assess teaching validly, you must do it at the place where instruction usually occurs. It’s not rational, and therefore not constitutional, for a reviewer to watch a parent perform for five minutes in a place real instruction never occurs, and then use that performance to judge whether the parent provides regular, thorough instruction at home.

Second, in the phrase “regular, thorough instruction,” the word “regular” refers to having some type of routine or teaching schedule. The word “thorough” means covering the subjects adequately. A five-minute performance at the school office provides no evidence on whether instruction at home is regular or thorough. It’s not rational, and therefore not constitutional, for a reviewer to watch a parent perform and then use that performance to judge whether the parent provides regular, thorough instruction at home.

Third, the “observe instruction” mandate is unconstitutional because there are no objective standards. It is so vague that it is impossible for a citizen to know if he is obeying it, and impossible for a government agent to know if he is correctly implementing it. The result is that enforcement is totally subjective. And that’s unconstitutional.

Protect Your Rights

If you want to protect your right to object to “observing instruction,” use HSLDA’s “Sample Annual Verification Letter—Portfolio Review Option” when it is due at the beginning of the school year (if you use the portfolio option). This makes it clear that you do not consent to allow someone to “observe instruction.” If you are just getting started and need to file a Notice of Consent form, use the one on HSLDA’s website.

If you encounter a demand to bring your child to a portfolio review and a simple “no thank you” does not take care of it, or if you think there is a reason for you to consent to observing instruction, please call and allow us to discuss it with you. HSLDA has had 100% success in protecting families who did not wish to bring their child to a portfolio review.