June 28, 2002

Pennsylvania District Hassles Certified Teacher

A few parents in Pennsylvania who teach their children at home file as private tutors rather than comply with the cumbersome home school law. To file as a private tutor parents need only file a copy of their current Pennsylvania teacher certification with the local superintendent, along with a current criminal history background check.

Because parents must be certified teachers to qualify as a private tutor, this option is not very common. Many school districts question its legality and try to impose other requirements.

Home School Legal Defense Association recently defended Mrs. Baker [name changed to protect privacy] in her quest to home school. The Conestoga Valley School District insisted that even though she was under the tutor law rather than the home school law, she had to submit an annual portfolio of records and materials for their review.

HSLDA immediately contacted Conestoga Valley. Below is an excerpt from our letter:

"It appears that your position regarding submission of the portfolio is based upon the provisions of 22 Pa. Code § 11.31, stating that "…the superintendent may afterwards also require evidence deemed necessary to demonstrate that the pupil is making satisfactory progress in the tutoring program and that the required subjects are being taught for the time prescribed." 22 Pa. Code § 11.31 was last amended to include this language on December 19, 1986, effective December 20, 1986. For the reasons set forth below, it is our opinion that these provisions of the Code no longer apply to private tutors.

"In the case of Jeffery v. O'Donnell, 702 F.Supp. 516 (1988), a case in which we represented the plaintiffs, we challenged the language of Section 13-1327 of Pennsylvania Statutes Annotated which stated that instruction by a private tutor was authorized "…if such instruction is satisfactory to the proper district superintendent of schools." The court agreed with us that this language was unconstitutionally vague, resulting in the passage of Act No. 169 of December 31, 1988. This legislation not only enacted a new statute recognizing home education programs under Section 13-1327.1 but also amended Section 13-1327 to remove the vague language to which we had objected. No longer does the instruction have to be satisfactory to the local superintendent, but the statute now defines "properly qualified private tutor" and specifies what documentation must be submitted by the private tutor to the superintendent when parents select this education option for their children. The language of 22 Pa. Code § 11.31 upon which you have been relying is predicated on the provisions of Section 13-1327 as it read in 1986 before it was amended in 1988 by Act No. 169. Given the requirements now specified for a private tutor by Section 13-1327, persons desiring to serve as a private tutor only need to meet the statutory requirements, and local superintendents are no longer authorized to approve a private tutor or review the educational progress of a student being taught by this method. It is clear that the Pennsylvania General Assembly intended to distinguish between the measure of accountability of a state-certified teacher serving as a private tutor and a parent or guardian having a high school diploma or its equivalent conducting a home education program."

Since our letter, Mrs. Baker has thankfully not heard anything else from the school district about this issue.