J. Michael Smith, Esq.
Michael P. Farris, Esq.
Talking Points and Bill Analysis
of Proposed Regulations DCMR 5200
We appreciate all of you who are coming forward to testify on this proposed regulation. As you know, the D.C. Council, which is the District’s legislative body, gave governor-like powers over education in the District to Mayor Adrian Fenty. In that law, the Council separated the D.C. Public Schools from other schools by creating the Office of the State Superintendent of Education (“OSSE”). The council also created the State Board of Education, which retains approval authority over a host of items, including approving home education regulations. For more information on the specific functions of the board you can go to DC Code §38-2652. There are nine members of the State Board of Education authorized; seven seats are currently filled. Five of these members are elected and four are appointed (two of the appointed seats are vacant). In November of 2008, all nine seats will be up for election.
The State Board of Education has approval and oversight responsibility over the OSSE and has informed me that this is the first opportunity they have had to review the OSSE’s proposed regulations on homeschooling. The Board has stated that it is eager to hear public input and that it will listen to public input. While it is true that board members will likely grant a fair amount of deference to the OSSE in interpreting its authority, it is important to remember that the positions are elected, and in a city like D.C., this means that it is possible to hold these board members more accountable through citizen action, especially when compared to a large state.
When testifying before the board, each person will have about three minutes to talk. The board may ask questions. When addressing the board, it is in our interest to remain respectful and to communicate our points passionately and with conviction but without rancor. We can appreciate the public service that these individuals have signed up for and it has been reported that there are some on the board who are sympathetic to homeschooling and are not favorably disposed toward the proposed regulations. Already, the OSSE has revised the proposed regulations, removing the Annual Assessment and Reporting Requirements Provisions (these will be on HSLDA’s website).
With these points in mind, I have prepared the remainder of this to assist you in understanding the proposed regulations and in preparing your testimony.
- DCMR 5200 would treat all parents like criminals—guilty until proven innocent and incompetent until proven otherwise.
- DC 5200 is vague, overreaching and offensive to the notions of freedom and liberty for which our country stands.
- We parents have fundamental constitutional rights recognized by the U.S. Supreme Court that are trampled by this regulation.
- D.C. public school officials have more important things to do than over-control a small population of responsible parents turning out exceptional students.
- DCMR 5200 would require significant resources and stretch the overtaxed administration of D.C.’s school system.
- D.C. parents who teach their children at home pay taxes and don’t complain—we just want to be left alone.
- It is unconscionable to impose harsh regulation on the vast majority of parents because of the alleged outrageous criminal behavior of Banita Jacks. The reason Jacks supposedly got away with it is because of a failure to follow existing procedures, not because of any lack of regulation on private instructors.
- Current educational and child welfare laws, properly enforced, are adequate to protect the children of the District. These laws properly balance the rights of parents and the interests of the government.
- By simply enforcing the current law (§ 38-202, 205 and DCMR 2100), the State Board can achieve its objective of ensuring that children in the District are educated and protected.
If adopted, D.C.’s proposed regulations would be the most restrictive instructional provisions for parent-directed private instruction in the country.
The Office of the State Superintendant (“OSSE’) has release its proposed rules for a new section of regulations. This section would be a new Chapter 52 in Title 5 of the District of Columbia Municipal Regulations (DCMR) entitled “District of Columbia Home Schooling Program.”
Apart from the question, “Do the D.C. statutes referenced even give the Board authority to promulgate such sweeping regulations?” the proposed regulations are misguided, dramatically overreaching and constitutionally defective.
A Disproportionate Response to a Heinous Crime?
In an apparent response to the Banita Jacks tragedy, some D.C. public officials have said that they are going to “crack down on homeschoolers” (see article on HSLDA’s website “Tragedy Prompts Calls for Heightened Scrutiny of Homeschoolers.”
Banita Jacks was not a homeschooler, and her alleged use of the term to shield herself from public accountability cannot be responsibly used by public officials as a rationale for the proposed regulations. Even if D.C. laws concerning private instruction were inadequate (they aren’t), in a society that values liberty, it is unconscionable to restrict the freedoms of the many for the transgressions of the one or few. People who do things that Ms. Jacks is accused of deserve the full weight of the state’s prosecutorial authority to fall upon them. The overwhelming majority of parents privately instructing their children in compliance with D.C. laws are entitled to expect that their government will do what the founders of our nation did—preserve and protect their natural rights—not take them away or over-regulate them.
Furthermore, had the social workers, truancy officers, school officials and police involved in the Jack’s investigation (which preceded her withdrawal from the public schools to allegedly “homeschool”) properly enforced existing laws and followed existing procedures, Banita Jack’s children would have been protected. Current D.C. private instruction laws require private instructors (homeschooling parents) to maintain attendance records that are open for inspection—it is unlikely that Jacks had these. Had she been asked and unable to deliver the attendance records, she would have been non-compliant with the law and subject to truancy charges. With these and other concerns, it is likely that public officials could have applied for and received court supervision. Unfortunately, Jacks was able to escape the investigation, not because she was allegedly “homeschooling” her children, but because of failure on the part of public officials investigating her case.
With the release of these proposed regulations, they have made good on their promise to “crackdown on homeschoolers”.
U.S. Supreme Court Jurisprudence Regarding Parental Rights
In 1925, the United States Supreme Court in Pierce v. Society of Sisters, 268 U.S. 510, said that: “Children are not the mere creatures of the state.” The Court went on to hold that parents have a fundamental right to direct the upbringing and education of their children. Numerous cases since then have upheld this right, ruling that this fundamental liberty interest is protected under the Fourteenth Amendment of the United States Constitution.
In Wisconsin v. Yoder, 406 U.S. 205, the Court recognized that while a state has an interest in being assured that its citizens are educated, it does not have a compelling interest that they be educated in a particular way. When a state burdens a fundamental right, regulation must be narrowly tailored to meet the state’s compelling interest, if it can articulate one, and such interest must also not be otherwise served. In the case of the proposed regulation, such conditions would not be satisfied. There are far less burdensome ways to address the state’s interest. In Parham v. JR, 442 U.S. 584, the Supreme Court recognized that fit parents are presumed to make decisions that are in the best interest of their children. Courts have consistently maintained that parents have prior responsibility and authority for their children. These regulations rest on premises antithetical to these presumptions.
Key Provisions and One-Line Responses of Proposed Regulation DCMR 5200
- Annual notification and re-notification
- A simple one-time notification is sufficient for the government to know that all its citizens are being educated.
- Daily instruction for the same number of days and hours as the D.C. public Schools (DCPS) school year:
- Parents teaching their own children are far more efficient, accomplishing in 2-3 hours what public schools take all day and more to do. Furthermore, these parents value flexibility and the ability to integrate real-world experiences into the learning program of their students. Parent-delivered instruction is by definition non-institutional and therefore should not be regulated or measured by institutional Standards (Brunelle v. Lynn Public Schools 428 Mass. 512) “it is obvious from these differences that…it [the state] cannot apply institutional standards to a non-institutional setting.” Id at 518.
- Require parents to have at least a high school diploma:
- Research by Dr. Brian Ray has shown that there is no significant correlation between the educational attainments or certifications of the instructor and the achievement of the student. (See Ray 2000, 2005 and Rudner 1999)
- Maintain a portfolio of student’s work product that they must allow DCPS to inspect:
- This approach to evaluation, even if necessary, is overly burdensome and inherently subjective. Such an approach is also intrusive of the family’s educational privacy. What parents teach their children is not, nor should it be, subject to intrusive, spontaneous or discretionary review by the government.
- Allow D.C. public school officials to invade the home to discuss the homeschooling program and observe instruction and review the portfolio up to three times per year:
- Unconstitutional if enforced (See Brunelle). Further there is no mention of any standard by which such observations would be measured and, even if any were, they would be completely subjective. This requirement is also overly burdensome and invasive of family integrity and privacy.
- Adhere to a vague and subjective standard that is not articulated in the proposed regulation:
- Through the regulation discretion is given to the agency in all areas without any proposed objective standards. Such language is constitutionally void as vague and burdens parents’ fundamental rights to direct the upbringing and education of their children (See Pierce above).
- Submit evidence of providing immunizations and appropriate health and medical services and “any other relevant information of any other kind prescribed by the OSSE in its discretion”:
- Parents have a fundamental right to the care, custody and management of their children and this language burdens this right. [See Doe v. Heck, 327 F. 3d 492 (7th Cir 2003) and King v. Olmstead County, 117 F. 3d 1065 (8th Circuit 1997)]. As an educational regulation, this language has no appropriate inclusion in this proposed regulation. D.C. already has child welfare protection laws. Education laws are intended to ensure that children are educated (not that they are educated in any particular way (Brunelle and Yoder) not for the purpose of child protection—that is what child protection laws are for. Parents are not instruments of the state and insofar as they remain fit parents, they shall be deemed to be acting in the best interests of the children and may not be co-opted, drafted or deputized to serve as ministers of the state in execution of its ministerial functions.
- File an undefined assessment:
- There is no assessment referenced other than the “maintaining of a portfolio.” This provision is self-contradictory. On one hand the provision says maintain an assessment but on the other hand it says file it. The provision does not sufficiently reference who to file it with, what to file, or how to file it. Furthermore, such a requirement is unnecessary.
- Allows the OSSE to initiate a remediation plan based on the portfolio or “any other information” that is then appealable to the Office of the District of Columbia Deputy Mayor for Education.
- This is overly broad and allows the OSSE unrestrained discretion to burden a fundamental parental right for any reason at all based on any information. It then refers grievances to an interested department rather than a disinterested and or independent fact finder and decision maker. This approach fails to meet appropriate standards for due process in connection with burdening a fundamental right under the U.S. Constitution.
- Allows the OSSE to order children into the public schools if, at anytime based on any information from anywhere, “in their discretion” they are unsatisfied with the homeschool program:
- Insufficient Due Process. Unconstitutionally vague. Burdens a fundamental right without due process.
- Authorizes the OSSE to make home visits to “ascertain areas of noncompliance”:
- Home visits have been found to be unconstitutional in a number of states and this provision does not meet the Fourth Amdenment’s provisions regarding probable cause and obtaining a warrant.
HSLDA’s Attempt to Find Common Ground
Although HSLDA staff met on several occasions with staff from Office of the State Superintendent and proposed language and policy that complied with the law, D.C. public school officials have decided to promulgate regulations that are harsh, unnecessary, overbearing and constitutionally defective.
Section 38-202 of D.C. Statutes allows for private instruction of students. Section 38-203 allows for inspection of attendance records by State Board personnel and Section 38-205 addresses the reporting requirements for private instructors. These simple regulations require that private instructors notify the Board of Education about students who receive private instruction and that private instructors maintain attendance records for these students.
HSLDA proposed the following policy recommendations to the OSSE. These provisions would ensure that parents instructing their children would be in compliance with D.C. Laws.
- Time of Filing—A Private Instruction Enrollment Form shall be filed with the office of the state department of education for any student who resides permanently or temporarily in the District, when the student transfers between schools, or who enrolls in, or withdraws from private instruction. The teacher providing the instruction shall submit the enrollment form.
- Information Required on the Private Instruction Enrollment Form—The private instructor shall provide the name, grade level, gender, and date of birth of each minor of compulsory school age receiving instruction.
- Attendance Records—Students enrolled in private instruction shall receive instruction for at least 180 days. Each teacher shall maintain an attendance record for each student which shall be open for inspection to the appropriate District personnel with notice when there is probable cause to believe that private instruction is not in compliance with the statute.
- Curriculum—The teacher offering private instruction shall provide the courses of study that are commonly taught in the public schools. The private instructor shall maintain a portfolio of the student's work, including materials covered, samples of the students’ writings, worksheets, workbooks and results of assessments, for at least two years.
- Immunizations and Vaccinations—The student’s parents shall comply with the District’s child/immunization requirements and maintain health records.
- Standardized Testing—The OSSE will establish a voluntary participation policy which will be available to students receiving private instruction on a voluntary basis.
Members of the State Board of EducationFor more information got to www.sboe.dc.gov
Robert Bobb, Elected Board Member
Term Expires December 2008
William Lockridge, Elected Board Member
District 4 Member (Wards 7 & 8)
Term Expires December 2008
Lisa Raymond, Elected Board Member
District 3 Member (Wards 5&6)
Term Expires December 2008
Laura Slover, Appointed Board Member
Ted Trabue, Appointed Board Member
Term Expires December 2008
Sekou Biddle, Elected Board Member
District 2, Wards 3 & 4
Mary Lord, Elected Board Member
District 1 (Wards 1 & 2)
Christine Johnson, Student Representative
Spingarn Senior High School
Loren A. Stevens, Student Representative
Coolidge Senior High School