March 14, 2008

Two Bills Diverged In a Yellow Wood

Editor’s note: Since this article was posted, Delegate Michael D. Smigiel Sr.’s office has agreed to remove the problematic definition of “homeschooling” in House Bill 1249 and replace it with one lining up with state law.

Two bills opening new academic opportunities for homeschoolers have been filed—but why would HSLDA support one and oppose the other?

The Maryland Legislature recently created a grant program for two- and four-year Maryland colleges, allowing them to provide free or reduced-rate college classes to students with financial need who were still enrolled in high school. The hitch was that the high school student had to be enrolled in a secondary school. Maryland homeschool students are not considered to be “enrolled in a school,” so they were excluded from the program. Efforts were begun to open up the program to homeschoolers.

A bill was prepared to accomplish this: H.B. 1077, sponsored by Delegate James E. Malone Jr. Malone’s bill was the result of close collaboration between HSLDA, Christian Home Educators Network (CHEN), and the sponsor. As a result, the bill was carefully crafted to minimize the likelihood of unintended negative consequences. The bill grafted the current legislative definition of homeschooling into the bill, avoiding the hazards of using undefined phrases in law.

About the same time, another bill was drafted to give schools authority, at their discretion, to allow homeschoolers to participate in academic classes or extracurricular activities. Delegate Michael D. Smigiel Sr.’s House Bill 1249, however, was drafted without input from HSLDA. Though it was motivated by the goal of increasing opportunities for to homeschoolers, it contained a fatal flaw. Rather than following the definition of homeschool already in the law, the bill creates a new one: “a student who participates in a home instruction program under written agreement with the county superintendent.” Requiring an agreement is virtually identical to requiring prior approval.

This definition is not only wrong, but dangerous. It is wrong because homeschooling falls under this provision of state law: “regular, thorough instruction during the school year in the studies usually taught in the public schools to children of the same age.” The statute does not require any contact with the local superintendent, and does not require an agreement. Most families comply with the law by filing a notice of intent under the home instruction regulations, but that is far different from being forced to enter an “agreement.”

It is dangerous because if the bill passes, its narrower definition of homeschool may have unexpected consequences. In addition to simply stating the letter of the law, statutes also set a tone and create broad expectations. This bill’s requirement of agreement (approval) sets a tone hostile to homeschool freedom and may lead to officials having raised expectations of control over families.

Also, the agreement (approval) definition could be borrowed and applied in harmful ways to families in a variety of situations. A judge might use this narrow definition to guide him when ruling on a homeschool case, with disastrous consequences. Or an official might demand that all families obtain an agreement before starting to homeschool. Once it is required that some homeschoolers obtain an agreement to homeschool, it is an easier step to demand that all obtain an agreement.

If it is desired that homeschoolers get access to public school classes and extracurriculars, it must be done the same way it has been done in other states: without undermining the liberty to homeschool for the many who will choose not to participate, and without creating a tone or precedent that could lead to future erosion of liberty.