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J. Michael Smith, Esq.
President

Michael P. Farris, Esq.
Chairman

Public School Access for Homeschoolers—A Legal Summary

COLORADO

Children participating in a non-public, home-based education program are allowed equal access to the public school’s extracurricular and interscholastic activities. Colorado Revised Statutes § 22-33-104.5(6) and Colorado Revised Statutes § 22-32-116.5.

Colorado Revised Statutes § 22-33-104.5(6)

Home-based education - legislative declaration - definitions - guidelines

(6)(a) If a child is participating in a nonpublic home-based educational program but also attending a public school for a portion of the school day, the school district of the public school shall be entitled to count such child in accordance with the provisions of section 22-54-103(10) for purposes of determining pupil enrollment under the “Public School Finance Act of 1994”, article 54 of this title.

(b)(I) For purposes of this subsection (6), a child who is participating in a nonpublic home-based educational program shall have the same rights as a student enrolled in a public school of the school district in which the child resides or is enrolled and may participate on an equal basis in any extracurricular or interscholastic activity offered by a public school or offered by a private school, at the private school’s discretion, as provided in section 22-32-116.5 and is subject to the same rules of any interscholastic organization or association of which the student’s school of participation is a member.

(II)(A) Except as provided for in sub-subparagraph (B) of this subparagraph (II), for purposes of section 22-32-116.5, the school district of attendance for a child who is participating in a nonpublic home-based educational program shall be deemed to be the school district that received the notification pursuant to paragraph (e) of subsection (3) of this section.

(B) For purposes of section 22-32-116.5, the school district of attendance for a child who withdraws from a public or private school more than fifteen days after the start of the school year and enters a non-public home-based educational program shall be the school district or private school from which the child withdrew for the remainder of that school year. If, during the remainder of that academic year, the child chooses to participate in extracurricular or interscholastic activities at the same school and was eligible for participation prior to withdrawing from the school, the child remains eligible to participate at such school.

(c) No child participating in an extracurricular or interscholastic activity pursuant to paragraph (b) of this subsection (6) shall be considered attending the public school district where the child participates in such activity for purposes of determining pupil enrollment under paragraph (a) of this subsection (6).

(d) As used in this subsection (6), “extracurricular or interscholastic activities’ shall have the same meaning as “activity” as set forth in section 22-32-116.5(10).

(e) If any fee is collected pursuant to this subsection (6) for participation in an activity, the fee shall be used to fund the particular activity for which it is charged and shall not be expended for any other purpose.

Colorado Revised Statutes § 22-32-116.5

(1)(a) Notwithstanding any other provision of this article, each school district and each public school, subject to the requirements of this section, shall allow any student enrolled in a school or participating in a nonpublic home-based educational program to participate on an equal basis in any activity offered by the school district or the public school that is not offered at the student’s school of attendance or through the student’s nonpublic home-based educational program. A school district or school shall not adopt or agree to be bound by any rule or policy of any organization or association that would prohibit any participation allowed by this section. Each nonpublic school may allow a student to participate in a particular activity offered by the nonpublic school, at the nonpublic school’s discretion.

(b) Any student may participate in an activity through any amateur association or league of which the school or school district is not a member, and such participation shall not prevent the student from participating or affect the student’s eligibility to participate in the same activity at any school, subject to the limitations specified in this section. Prior to participating in any activity through such an amateur association or league, the student shall obtain the express written permission of the principal of the school at which the student participates in the activity, which permission shall be granted if:

(I) The student’s class attendance is not compromised; and

(II) The student is in good academic standing under the school’s activities policy applicable to all students.

(c) No school or school district that receives funds under article 54 of this title shall belong to any organization or association nor enforce any rule of a coach or principal that would prohibit a student’s participation in any school or interscholastic school activity based upon the student’s participation in lawful activities during out-of-school hours and off of school property.

(2)(a) A student may participate in activities only at the student’s school of attendance or through the student’s nonpublic home-based educational program, whichever is applicable, unless the school of attendance or nonpublic home-based educational program does not offer an activity in which the student wishes to participate.

(b) If a student’s school of attendance or nonpublic home-based educational program does not offer an activity in which the student wishes to participate, the student may participate in the activity at another public school in the student’s school district of attendance or in the student’s school district of residence. If the activity is not offered at any public school in the school district of attendance or the school district of residence, the student may participate in the activity at a public school in a school district that is contiguous to the student’s school district of residence or at the nearest public school that has the facilities for and offers the activity, even if the public school is not in a contiguous school district.

(c) If an activity is not offered at the student’s school of attendance and the student chooses to participate in the activity at a public school in a contiguous school district, the school district in which the student chooses to participate, as provided in paragraph (b) of this subsection (2), shall choose the public school at which the student shall participate. In choosing a public school, the school district shall choose the public school that offers the greatest number of activities in which the student wishes to participate.

(d) A student may participate in activities at more than one school of participation during the same school year only if the original school of participation does not offer an activity in which the student wishes to participate.

(3)(a) If a student’s school of attendance does not offer a particular activity, the student may choose to participate in the activity at a nonpublic school. The nonpublic school has discretion whether to allow the student to participate in an activity at the nonpublic school.

(b) A student may participate at a nonpublic school located in the student’s school district of attendance or school district of residence. If the activity is not offered at a school in the student’s school district of attendance or school district of residence, the student may apply to participate in the activity at a nonpublic school in a school district contiguous to the student’s school district of residence.

(c) In choosing whether to participate in activities at a public or nonpublic school, the student shall choose the school of participation that offers the greatest number of activities in which the student wishes to participate. The limitation on the number of schools of participation specified in paragraph (d) of subsection (2) of this section applies regardless of whether the student participates in activities at a public or nonpublic school.

(4)(a) To participate in an activity at the school of attendance, a student shall meet all of the requirements imposed by the school of attendance.

(b) To participate in an activity at a school of participation, a student shall:

(I) If the student is participating in a nonpublic home-based educational program, comply with all laws governing said programs;

(II) Comply with all eligibility requirements imposed by the school of participation;

(III) Comply with the same responsibilities and standards of behavior, including related classroom and practice requirements, as are imposed on other students participating in the activity at the school of participation.

(5) A student who has not met all eligibility requirements for or who would have become ineligible to participate in activities at a school cannot gain or regain eligibility by applying to participate in activities at another school pursuant to this section. A student shall pay any penalty assessed against the student at the student’s school of attendance or school of participation before the student may regain eligibility at the school of attendance or school of participation or become eligible to participate in any activity at another school.

(5.5) For each athletic activity offered, a school district may:

(a) For a team athletic activity, reserve for students enrolled in the district of the school of participation up to twice the number of starting positions on a team at each level of competition;

(b) For an individual athletic activity, reserve for students enrolled in the district of the school of participation up to one-half the total number of team members at each level of competition.

(6)(a) A school may charge any student participating in an activity a participation fee as a prerequisite to participation. The fee amount that a school of participation charges a nonenrolled student shall not exceed one hundred fifty percent of the fee amount the school of participation would charge an enrolled student to participate in the activity.

(b) If any fee is collected pursuant to this section for participation in an activity, the fee shall be used to fund the particular activity for which it is charged and shall not be expended for any other purpose.

(c) In addition to the fees allowed under paragraph (a) of this subsection (6), a school may charge a nonenrolled student participating in postseason competition in an individual athletic activity the actual cost of that postseason participation if the school is sponsoring only nonenrolled students in the postseason competition.

(7) For purposes of article 54 of this title, no student who participates in an activity in a school district other than the student’s school district of attendance shall be included in the pupil enrollment of the school district where the student participates.

(8) The provisions of this section are intended to allow students to participate on an equal basis in extracurricular and interscholastic activities who would otherwise be denied the opportunity to do so and are not intended to sanction or encourage the recruitment of students for participation in such activities by schools or school districts.

(9) If a student transfers enrollment to another school without an accompanying change of domicile by the student’s parent or legal guardian, the student’s eligibility to participate in activities at the new school of attendance shall be determined under the rules of participation adopted by the school district in which the new school of attendance is located.

(9.5)(a) Notwithstanding any rule adopted or agreed to by any public school or school district, any student who is sanctioned or is found by the school, school district, or any organization or association to which the school or school district belongs to be ineligible to participate in any activity for any reason, except unsportsmanlike conduct or ejection from an activity, may appeal the sanction or finding. The appeal may be made through the applicable process at the school, any league to which the school or school district belongs, or any other organization to which the school or school district belongs.

(b) Any student may bypass the appeal process at any time by filing a petition or complaint with a group of sitting or retired judges or other group of neutral arbitrators approved by the school, school district, or any organization or association to which the school or school district belongs. In rendering his or her decision, the judge or arbitrator shall consider whether any rule was properly applied to the student and whether a waiver of any rule should be granted. A final decision shall be rendered by the judge or arbitrator no later than thirty days after the filing of the petition or complaint and shall be binding on the student, the school, the school district, and any association or organization to which the school or school district belongs. Any cost associated with a judge or arbitrator shall be charged equally to the student and any association or organization to which the school or school district belong.

(c) This subsection (9.5) shall not apply to any coach’s team rules that are uniformly applicable to all team members; except that no coach may adopt a rule that is contrary to any provision of this section.

(10) As used in this section, unless the context otherwise requires:

(a) “Activity” means any extracurricular or interscholastic activity, including but not limited to any academic, artistic, athletic, recreational, or other activity offered by a school.

(b) “Nonpublic home-based educational program” has the same meaning as in section 22-33-104.5(2).

(c) “Nonpublic school” means any independent or parochial school that provides a basic academic education, as defined in section 22-33-104(2)(b).

(d) “Public school” means any school that is under the direction and control of a school district, including but not limited to a charter school.

(e) “School” includes any public school and nonpublic school.

(f) “School of attendance” means the school in which a student is enrolled and attends classes.

(g) “School district of attendance” means the school district in which a student is enrolled and attends classes or, if the student is participating in a nonpublic home-based educational program, except as provided for in section 22-33-104.5(6)(b)(II)(B), the school district in which the student participates in said program.

(h) “School district of residence” means the school district in which a student resides.

(i) “School of participation” means a school, other than the student”s school of attendance, in which the student participates in an activity.