Homeschooling in the United States

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The legality of homeschooling in the United States has been debated by educators, lawmakers, and parents since the beginnings of compulsory school in Massachusetts in 1852. United States Supreme Court precedent appears to favor educational choice, so long as states may set standards for educational accomplishment. (See Runyon v. McCrary, 427 U.S. 160 (1976); Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).

Contents 1 History of the controversy 2 U.S. Supreme Court precedent 3 Homeschooling laws and regulations 4 United Nations Convention on the Rights of the Child 5 Examples of state requirements 6 Testing and assessment 7 Recognition of completion 8 Curricula 9 Access to resources 10 Advocacy Organizations 11 Notes and references

[edit] History of the controversy

For decades the source of debate was focused whether it was legal for parents to withhold their children from mandated state school programs and educate them in a home setting pitting those in favor of educational choice against those in favor of public or state controlled education.

Since the late 1980's, the focus on the legality of homeschooling in general has shifted toward whether homeschooling communities can access to state school funds, facilities, and resources and to the degree of control that a state can exercise on homeschooling families regarding areas like curricula and standardized testing.

However in 2008 a panel of three judges on a California Court of Appeals voted unanimously that children must be taught by a credentialed tutor or person with a teaching credential. The court stated that "It is clear that the education of the children at their home, whatever the quality of that education, does not qualify for the private full-time day school or credentialed tutor exemptions from compulsory education in a public full-time day school." ^[1] The California court rejected the parent's reliance on Yoder's holding regarding religious choice. ^[2] However, in March 2008, the court agreed to rehear the case and vacated its prior decision. A final decision is expected in late 2008.

[edit] U.S. Supreme Court precedent

In the U.S., homeschooling is legal in all 50 states. In some states homeschooling parents are occasionally faced with prosecution under truancy laws. The U.S. Supreme Court has never ruled on homeschooling specifically, but in Wisconsin v. Yoder, 406 U.S. 205 (1972)[2] it supported the rights of Amish parents to keep their children out of public schools for religious reasons. The Court has ruled however, that parents have a fundamental right to "establish a home and bring up children" along with the right to "worship God according to the dictates of his own conscience."^[3] This combination of rights is the basis for calling homeschooling a fundamental right under the Supreme Court's concept of liberty protected by the Due Process clause. Laws that restrict fundamental rights are subject to strict scrutiny, the highest standard, if the law is challenged in the courts.

The final two sentences from the Supreme Court's opinion in Runyon v. McCrary, analyze Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925)[3] and the Court holds that a State may set educational standards but may not limit how parents choose to meet those educational standards.

In Runyon v. McCrary the Court analyzed its prior rulings on educational choice:

In Meyer v. Nebraska, 262 U.S. 390 , the Court held that the liberty protected by the Due Process Clause of the Fourteenth Amendment includes the right "to acquire useful knowledge, to marry, establish a home and bring up children," id., at 399, and, concomitantly, the right to send one's children to a private school that offers specialized training - in that case, instruction in the German language. In Pierce v. Society of Sisters, 268 U.S. 510 , the Court applied "the doctrine of Meyer v. Nebraska," id., at 534, to hold unconstitutional an Oregon law requiring the parent, guardian, or other person having custody of a child between 8 and 16 years of age [427 U.S. 160, 177] to send that child to public school on pain of criminal liability. The Court thought it "entirely plain that the [statute] unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." Id., at 534-535. In Wisconsin v. Yoder, 406 U.S. 205 , the Court stressed the limited scope of Pierce, pointing out that it lent "no support to the contention that parents may replace state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society" but rather "held simply that while a State may posit [educational] standards, it may not pre-empt the educational process by requiring children to attend public schools." Id., at 239 (WHITE, J., concurring).

In addition the Runyon Court held that: recognized that "The Court has repeatedly stressed that while parents have a constitutional right to send their children to private schools and a constitutional right to select private schools that offer specialized instruction, they have no constitutional right to provide their children with private school education unfettered by reasonable government regulation."

Additionally, in Meyer v. Nebraska, the U.S. Supreme Court's majority opinion stated that the "liberty" protected by the Due Process clause "[w]ithout doubt...denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized…as essential to the orderly pursuit of happiness by free men." In Meyer, the Court held that a 1919 Nebraska law prohibiting the teaching of foreign languages to school children before high school unconstitutionally violated the Due Process clause of the Fourteenth Amendment.

Many other Court rulings have established or supported the right of parents to provide home education.

Only a short time after compulsory attendance laws became common in the United States, Oregon adopted a statute outlawing private schools. The U.S. Supreme Court struck down the state law as unconstitutional in its 1925 ruling in Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925)[4]. The Court held that a state may not prohibit a parent from satisfying a compulsory attendance requirement by sending their children to private school. This case has frequently been cited by other courts in support of the proposition that parents have a right to satisfy compulsory attendance requirements though home instruction. Parents' right to homeschool their children has clearly been established through subsequent court decisions to such an extent that any statute attempting to forbid it entirely would certainly be struck down on constitutional or other grounds.

Every state has some form of a compulsory attendance law that requires children in a certain age range to spend a specific amount of time being educated. The most common way for parents to meet these requirements is to have their children attend public school.

[edit] Homeschooling laws and regulations

Homeschooling laws can be divided into three categories:

1. In some states, homeschooling requirements are based on its treatment as a type of private school (California, Indiana, Texas, for example) In those states, homeschools are generally required to comply with the same laws that apply to other (usually non-accredited) schools.
2. In other states, homeschool requirements are based on the unique wording of the state's compulsory attendance statute without any specific reference to "homeschooling" (New Jersey, Maryland, for example). In those states, the requirements for homeschooling are set by the particular parameters of the compulsory attendance statute.
3. In other states (Maine, New Hampshire, Iowa, for example) homeschool requirements are based on a statute or group of statutes that specifically applies to homeschooling, although statutes often refer to homeschooling using other nomenclature (in Virginia, for example, the statutory nomenclature is "home instruction"; in South Dakota, it is "alternative instruction"; in Iowa, it is "competent private instruction"). In these states, the requirements for homeschooling are set out in the relevant statutes.

While every state has some requirements, there is great diversity in the type, number, and level of burden imposed. No two states treat homeschooling in exactly the same way. Generally, the burden is less in states in category 1, above. Furthermore, many states offer more than one option for homeschooling, with different requirements applying to each option.

[edit] United Nations Convention on the Rights of the Child

Law professor David Smolin states that "Article 29 (of the United Nations Convention on the Rights of the Child) limits the right of parents and others to educate children in private school by requiring that all such schools support both the charter and principles of the United Nations and a list of specific values and ideals. By contrast, Supreme Court case law has provided that a combination of parental rights and religious liberties provide a broader right of parents and private schools to control the values and curriculum of private education free from State interference."^[4] While the quote deals with private schools it can also be assumed to extend to private home educational choices because the educational venue must support the U.N.'s values and ideals.

All member nation states (countries) of the United Nations, except the United States and Somalia,^[5] have ratified it.

[edit] Examples of state requirements

Some states don't require any notice of intent. Others require the filing of a notice with local school officials containing specified information. In conformity with the general trend to ease requirements however, only two states, Rhode Island and Massachusetts, still require parents to obtain approval prior to homeschooling. More onerous requirements even include the need to have a credentialed teacher supervise the homeschooled child's education.

Proponents of heavier requirements argue that they are a necessity in order to achieve the societal goal of having an educated public who are prepared to participate in democratic society. There are no scientific studies, however, that indicate heavier requirements produce better results. In general, standardized test scores in states with high requirements are no better than in states with lower requirements, casting doubt on the wisdom of placing high requirements on homeschooling since higher requirements create higher administrative costs.

In California, for example, homeschoolers must either a.) be part of a public homeschooling program through independent study or a charter school, b.) use a credentialed tutor, or c.) enroll their children in a qualified private school (Such private schools may be formed by the parents in their own home, or parents may utilize a number of private schools which offer some kind of independent study or distance learning options). All persons who operate private schools in California, including parents forming schools just for their own children, must file an annual affidavit with the Department of Education. They must offer certain courses of study (generally similar to the content required in public schools, but described in one page rather than the hundreds of pages of scope and sequence requirements that public schools must follow) and must keep attendance records, but are otherwise not subject to any state oversight. There is no requirement in California that any private school teachers, whether the school is large or small, must have state credentials, although all teachers must be "capable of teaching". On Feb. 28, 2008, the California Court of Appeals issued a ruling that effectively makes homeschooling (except for tutoring by certified teachers) illegal in the state of California. The ruling is being appealed to the Supreme Court of California, and the Home School Legal Defense Association is seeking to have the decision depublished.^{[6][7][8][9][10]}

Texas, which is considered to be very friendly toward homeschooling (after losing a landmark case when it attempted to outlaw homeschooling), has very minimal requirements. The Texas Education Agency (TEA) has no authority to regulate home schools (TEA considers home schools to be equivalent to "unaccredited private schools"; TEA states that private schools are not required to be accredited, and it has no authority to regulate those either). The requirements (based totally on state law, or more precisely the absence of state law), are based on a near-laissez faire attitude toward homeschooling, and are as follows:

• State law only requires that a school (of any type) curriculum 1) must teach "reading, spelling, grammar, mathematics and a study of good citizenship" (the latter is interpreted to mean a course in civics), and 2) must be taught in a bona fide manner (which means there must be a real intent to actually provide education). Texas Home School Coalition (THSC) FAQ The curriculum may be of any type of media (textbooks, workbooks, other printed material, and computer-based of any type including the Internet) and can be obtained from any source(s) desired, and does not have to be approved or even provided to the state or the local school district.
• State law does not specify any minimum number of days in a year, or hours in a day, that must be met. Nor does it mandate a specific time of the day during which classes must be held; this has occasionally (according to the THSC) caused students to run afoul of local curfew laws.
• State law does not require achievement tests for home school graduating seniors.
• State law does not restrict home school families from combining into one group setting (though THSC cautions that whenever more than three children outside the family are involved, this could cause problems with local zoning ordinances and may also require a state license for child care).
• State law does not require registration or annual filings.
• State law does not require any teacher credentials, or any capability for that matter.
• State law requires notification only if the child was previously in a public school and is withdrawn; the notification required is merely a letter notifying the school district of the parent(s)' intent, and only one letter is required at the outset (annual letters are not required). Parents who home school from day one are not required to give any notice.

The law in Ohio that excuses students from compulsory education is the Ohio Administrative Code, Chapter 3301-34. Under this law, home education is defined as education that is directed by the parent/guardian of the child. The purpose of the law is to ensure that parent rights to homeschool their children are not violated. Before the homeschooling process begins, the parent/guardian must notify the superintendent in his/her child’s school district. Some school districts have forms that they use. As long as the following information is provided in a letter or other form of notification, parents do not have to use the school district forms. Information that needs to be provided in a form of notification to the superintendent before homeschooling begins includes: the school year, name of parent and address (telephone is optional), child's birth date, parent signature guaranteeing that the subjects listed in the Ohio Administrative Code will be part of homeschooling, outline of the curriculum that the parent plans to cover in the next year, a list of materials (textbooks, etc.) that the parent plans to use, parent signature guaranteeing that the child will be in home education for 900 hours during the upcoming school year, and finally assurance that the home instructor has a high school diploma or the equivalence of a high school diploma. Parents must also send an academic assessment to the superintendent from the previous school year. The academic assessment report needs to be one of two things: either the results of a nationally normed, standardized test or a written narrative. The written narrative should include samples of the student’s work. The superintendent must notify the parents within fourteen days of his/her decision.^[11]

[edit] Testing and assessment

States also differ in their requirements regarding testing and assessment. Following the general trend toward easing requirements, fewer than half the states now require any testing or assessment. In some states, homeschoolers are required either to submit the results of a standardized test (sometimes from an established list of tests) or to have a narrative evaluation done by a qualified teacher. Other states give parents wide latitude in the type of assessment to be submitted.

Again, using California as an example, students enrolled in a public program are encouraged to take the same year-end standardized tests that all public school students take, but students using tutors or enrolled in any private school, homeschool or not, are not required to take any tests. Texas also does not require standardized tests for any student outside the public school arena, and absence of such tests cannot be used to discriminate against enrollment in higher education.

[edit] Recognition of completion

There are also differences between the states in graduating children from homeschools. In states in which homeschools must be or can be operated as any other private school, graduation requirements for all private schools in that state generally also apply to the homeschools. Some state education laws have no graduation requirements for private schools, leaving it up to the private schools to determine which students have met the graduation requirements, and thusly allowing homeschoolers the same privilege (for example, as stated above, Texas considers home schools to be equivalent to unaccredited private schools). And in yet other states, homeschoolers receive no official recognition that is equivalent to graduation. Independent homeschoolers in Florida, for example, cannot truthfully claim to have "graduated", even after completing twelve years of homeschooling (however, Florida does grant such students equal access to the state's system of public colleges and universities).

Homeschooling is increasingly becoming recognized as a viable alternative to institutional education, and fewer families are being targeted for prosecution. In an unintended demonstration of the increasing acceptance of homeschooling, the outgoing Superintendent of Public Instruction for the state of California, Delaine Eastin, caused a furor by telling the state legislature that homeschooling was illegal and that families could not form private schools themselves or teach their children without credentials. She called for a legislative "solution" to the growing "problem" of homeschooling. The legislature balked at taking any action. Then, Ms. Eastin's successor, Jack O'Connell, instructed his legal staff to review the state laws. Homeschooling advocates were informed by one of the Department of Education attorneys that the state was reversing the position it had taken under Ms. Eastin's tenure. Statements that parents could not teach their own children or form their own private schools were removed from the state Department of Education website. Although some officials still maintain traditional views, truancy prosecutions in California are much rarer now than they were under Ms. Eastin's leadership. Those prosecutions that are still pursued routinely fail, and district attorneys now usually refuse to file such cases.

[edit] Curricula

Curriculum requirements vary from state to state. Some states require homeschoolers to submit information about their curriculum or lesson plans. Other states (such as Texas) just require that certain subjects be covered and do not require submission of the curriculum. While many complete curricula are available from a wide variety of secular and religious sources, many families choose to use a variety of resources to cover the required subjects. In fact, it is not uncommon for a homeschooled student to earn a number of college credits from a 2- or 4-year college before completing the 12th grade.

Some states offer public-school-at-home programs. These on-line, or "virtual", public schools (usually "charter" schools) mimic major aspects of the homeschooling paradigm, for example, instruction occurs outside of a traditional classroom, usually in the home. However, students in such programs are truly public school students and are subject to all or most of the requirements of other public school students. When parents enroll their children in such a program, they effectively surrender control over the curriculum and program to the public school, although a casual observer might think they are homeschooling. Some public-school-at-home programs give parents leeway in curriculum choice; others require use of a specified curriculum. Full parental control over the curriculum and program, however, is a hallmark feature of homeschooling. Taxpayers pay the cost of providing books, supplies, and other needs, for public-school-at-home students, just as they do for conventional public school students. The U.S. Constitution's prohibition against "establishing" religion applies to public-school-at-home programs, so taxpayer money cannot lawfully be used to purchase a curriculum that is religious in nature.

[edit] Access to resources

A minority of states have statutes that require public schools to give homeschooled students access to district resources, such as school libraries, computer labs, extracurricular activities, or even academic courses. In some communities, homeschoolers meet with a teacher periodically for curriculum review and suggestions. The laws of some states give districts the option of giving homeschooled students access to such resources.

Access to interscholastic athletic competition varies from state to state.

• Some state athletic associations, such as the Kentucky High School Athletic Association,^{[12] [13]} completely ban homeschoolers from interscholastic competition; both by prohibiting homeschoolers to compete for a state federation member school as well as by prohibiting member schools to compete against independent teams made up of homeschoolers. In such states, homeschoolers may only compete amongst other homeschoolers or against schools that are not members of the state's interscholastic athletic federation.
• Other states allow homeschoolers to compete for the public schools that they would otherwise attend by virtue of their residence; for example, current University of Florida quarterback Tim Tebow was able to play high school football because under Florida law, a public school must allow homeschoolers resident in its attendance area unimpeded access to extracurricular activities, including varsity athletics. Tebow's success has inspired similar legislation to be introduced in other states.^[14]
• Still other state interscholastic athletic associations allow homeschoolers to organize teams that compete against other established schools, but do not allow homeschoolers to compete on established school teams. The Texas Association of Private and Parochial Schools, the largest of several governing bodies for non-public schools in Texas, uses this option, as does the Michigan High School Athletic Association, though the MHSAA allows such contests during regular season play only.

[edit] Advocacy Organizations

To help protect the rights of parents to legally homeschool their children membership organizations have been started. There are several national level groups

• Home School Legal Defense Association HSLDA (Site is helpful for learning about each state's laws.) [5]
• Alliance for Intellectual Freedom in Education [6]
• American Homeschool Association [7]
• National Home Education Network [8]
• Association of HomeSchool Attorneys [9]
• National Home Education Legal Defence [10]

[edit] Notes and references