HOME INSTRUCTION: A NATIONAL STUDY OF STATE LAW
There is a growing trend throughout the country for parents to educate their children at home. Although the reasons are varied, most of these parents claim their interest in home education is based on religious views. The issue from both the legal and the educational point of view is whether the state’s interest in assuring that children are provided a minimum level of formal education is more compelling than the parents’ fundamental right to make choices regarding the manner in which their children are educated. The concern of all of the fifty states in the interest of the children is presented in their compulsory attendance statutes. More succinctly, the central question raised is this: Is the compulsory attendance requirement met by home education and, if so, under what conditions?
Since the early 1970s the press has often featured articles on students entering Harvard and Yale after eleven and twelve years of being educated at home (Whitehead & Bird, 1984). Newspaper articles throughout the country present to the public case studies of children whose parents have made the decision that home instruction is the best choice for their families. The prevalence of the situation is difficult to measure, but estimates are as low as ten thousand to as high as one million children who are currently receiving instruction from their parents at home (Naisbitt, 1982). Many parents fear being identified because of the possible legal implications and consequences.
Legal ramifications vary from state to state. Each state enacts its own compulsory attendance laws, and each is responsible for establishing the statutory requirements for educating its own student population. In 1988, 26 states had specific statutory language dealing with home education1. There were five states with no statutory language referring specifically to home education or direction from the court, leaving the schools and parents to make choices that may be resolved by the courts2.
In many states both school administrators and parents are confused about the rights and responsibilities of each group. Parents interested in home instruction seek information about how to provide this opportunity to their children. School administrators are unclear about their responsibility to meet the compulsory attendance statutes. Too often this gap in the law creates a hostile relationship between parents and school administrators.
The purpose of this research was to examine home instruction from a national perspective. This examination included an analysis of the applicable statutory and case law, including pertinent data gathered from representative states. The results of the research was directed to states such as Illinois where there is confusion among parents and school administrators regarding their rights and responsibilities in the area of home instruction.
Review of the Research and Literature
Legal researchers and other interested authors have studied the legal aspects of home instruction from a state and national perspective. While this research reviewed these papers, it sought to go further by providing legislative recommendations that could be included in state statutes or rules and regulations. This research reviewed, in addition to legal and educational writings, court cases and all current legislation relating to home instruction and compulsory attendance, proceeding then to relate the results of the research to Illinois.
A historical perspective of litigation and development of statutes regarding home instruction was available in the literature, particularly the law review articles. Many authors examined litigation in individual states and related the determination of the courts to the changes in the state laws regarding home instruction. Most of the literature looked at home instruction from a religious perspective. Very little was found regarding parents educating their children at home for non-religious reasons.
The literature showed that the home instruction movement is not one to be ignored and that parents believe they should be deeply involved in the education and development of their children. Without the guidance of the United States Supreme Court, each state must establish its own standards to provide public school administrators with the necessary direction to fulfill their legal responsibility, which is meeting the attendance law requirements while acknowledging the parents’ concern for their children’s education.
The dictionary definition of a school is broad, and the courts and the legislatures differ among themselves as to the proper organization to provide instruction. The state has a compelling interest in assuring that children are provided a minimum level of instruction while parents have the right and responsibility to provide for their children’s education and to determine the suitable forum for their education.
Every state, at the time of this research, had a form of compulsory attendance statute requiring children of a prescribed age to attend a public or private school. The question raised in states where there was no statutory reference to home instruction was, “does home instruction come under the requirements of the compulsory education statute”?
Parents, school administrators, and the public are understandably confused about their rights and responsibilities. This confusion can lead to ill will, resentment, and ignorance.Parents have become a vocal force, working either through litigation or through lobbying efforts, to liberalize the statutes. Litigation efforts are becoming better organized, and parents are receiving more sophisticated legal counsel to avoid prosecution and possible arrest.Is the compulsory attendance requirement met by home education, and if so under what conditions? Yes, home instruction is an acceptable alternative to compulsory education and the conditions to fulfill that choice are identified in each state. The courts have continued to uphold legislation that clearly prescribes the requirements and provides for proper monitoring to insure children receive an adequate education.
The necessity of continuing to search for better and clearer answers to the questions in this study is the right and obligation of all involved in the education of the children of this country.
This study was primarily descriptive in nature using appropriate qualitative methods to obtain data. The three methods used were survey, interview, and legal research. This methodology, the presentation that included tabular data and narrative documentation, disclosed historical development, current practice, and future trends.The compulsory education and/or home instruction statutes in the fifty states were researched and grouped into four major categories with respect to their particular recognition of home instruction as a permissible alternative to public school attendance3. These four categories are:
A. “Explicit Language Statute” states‑‑states having statutes which explicitly permit home instruction.
B. “Equivalency Language Statute” states‑‑states having statutes which simply require attendance in public schools “or their equivalent.”
C. “Qualifies as Private School” states‑‑states having statutes which do not explicitly mention home instruction, but did permit private school attendance, and their courts or state boards of education construed “private schools” to include home instruction.
D. “Silent Language Statute” states‑‑states having no statutory language at all beyond a bare compulsory attendance law, leaving the permissibility of home instruction, and guidelines for it, entirely to the courts, attorney generals or the state rules and regulations.
The preceding statutes and supporting laws were identified by independent research and through the information obtained from the survey sent to the fifty chief state school officers.
Cases at the federal and state level were studied primarily for their interpretation of statutory language regarding both the state’s interest and the parents’ rights. Court decisions involving home instruction and the compulsory education statutes and administrative rules and regulations from the states were analyzed, compared, and contrasted. Particular attention was given to Illinois court decisions to determine if an Illinois “public policy” was identifiable. Such a policy was established by the Illinois supreme court in the People v. Levisen (1950) decision.
Follow-up telephone interviews were conducted with designated personnel in seven state education departments. The purpose of the interviews was to validate the data already collected and to find information regarding the political forces that have affected the legislative process. The criteria used in identifying these seven states included (a) significant developments in the past ten years, (b) geographic diversity, (c) availability of historical materials, and (d) availability of current data. As a result of the research, the most desirable elements of model legislation and/or administrative procedures were identified. It was the intent of this effort to aid local districts, state agencies, and lawmakers to develop policies and laws about home instruction. Recommendations were made for the development of legislation in the states in which there was no explicit authority for home instruction. These included elements that should be in statutes or regulations for home instruction.
The central question raised in this research was this: Is the compulsory attendance requirement met by home instruction, and if so under what conditions? The following conclusions demonstrate that this requirement is satisfied under a variety of circumstances. These circumstances vary throughout the fifty states. In some cases home instruction is permitted by specific statutory enactment while in other cases it is permitted by court decisions. Additionally, in a limited number of jurisdictions, home instruction is practiced by default, that is, with neither legislative nor judicial sanction. The conclusions follow:
1. Parents may choose educational alternatives for their children, but the state has a right to regulate these choices within certain limits. Parents believe it is their right and responsibility to provide for their children’s education and to decide what is the proper forum for that instruction. However, the state has a compelling interest in assuring that children are provided a minimum level of instruction. The amount of litigation and the extensive lobbying efforts over the past twenty‑five years is evidence of this dichotomy. The research has confirmed that the parents have judicially protected rights in this area. The dual roles of the state and the parents are not free from conflict.
2. State and federal courts generally agreed that home instruction is a public policy issue that should be decided by the particular state. The Supreme Court has ruled that education was a legitimate interest of the state. Where such a public policy was found to exist, the state legislature may recognize it through appropriate legislation.
3. All fifty states have compulsory attendance statutes which provide for private school attendance but do not necessarily allow home instruction as an exemption to the compulsory attendance statute. Over fifty years ago the Supreme Court established both the propriety of private schools as an acceptable alternative to public schools and that the state could not deny this choice because of the Equal Protection Clause of the fourteenth amendment. However, other federal court and state court decisions have held that the denial of home instruction as an alternative to public education does not violate the Constitution.
4. Most court cases have rejected religious claims as reasons for parents to provide their children with home instruction. The only Supreme Court decision dealing with home instruction (Wisconsin v. Yoder, 1972) recognized the firm and long established religious beliefs of the Amish. It was believed by most authorities that only where the religious interest is of such unique strength will it receive sufficient constitutional recognition to qualify as an exemption to the compulsory attendance statute.
5. Sincerity of beliefs and quality of a program are not enough if the parents do not comply with the statutes. The courts will not accept programs that violate the requirements of the state laws or that deprive children of their rights to an adequate education. The role of the courts is to interpret and enforce the laws of the states, not to evaluate the value of a home instruction program or the religious convictions of the parents.
6. Home instruction will not qualify as a private school if the compulsory attendance statute clearly establishes separate requirements for home instruction and private schools. To avoid the specific requirements of home instruction, parents often call their program a “private school.” Courts have found this tactic to be unacceptable if home instruction is defined and provided for in the statutes.
7. The number of states that have statutory authority or regulations for home instruction has increased in the 1980s. Most of these legislative actions have been a reaction to court decisions and lobbying efforts. At the time of the research, 1988, 26 states had explicit statutory language to allow for home instruction. The statutory or case law in 7 states allowed for home instruction to fulfill the private school exemption of compulsory attendance. In 12 states, home instruction was an acceptable exemption if the program was equivalent, comparable, or regular and thorough. In 5 states there was no statutory authority or case law to provide for home instruction as was the condition in the other 43 states. Three of these 5 states with “silent statutes” rules and regulations had been promulgated to establish procedures to be used by the appropriate agency in determining if a home instruction program was an acceptable exemption to a specific compulsory attendance requirement. In the four remaining states, there was no direction to determine the acceptability of such a program.
8. The state’s utilization of its authority to regulate education by monitoring and approval of home instruction programs varies throughout the country. The approval process happens when the parents indicated their intent to educate the child at home. Monitoring activities include home visitation, testing, and other means of evaluating the student’s progress. The compelling interest of the state in adequate education for its citizens has met the constitutional test for allowing governmental regulations. The state’s authority to regulate home instruction, either through monitoring or approval, is a point of contention between the state and the parents. The issue raised in many court cases is how much regulatory control the state has over the education of the children. An analysis of the cases showed that if the procedural requirements for approval of a home instruction program are reasonable and clear and there are due process opportunities, the state’s legitimate interest in developing an educated citizenry persists over the parents’ fundamental right to make choices regarding the manner in which their children are educated.
9. The burden of proof is on the parents to show that they are providing their children with a proper education and are following the requirements of the state laws. The burden of proof for verification of non-attendance is on the state. Tobak and Zirkel (1982, p. 8) describe in their writings the importance of this conclusion of the sharing of the burden of proof stating, “[T]he balanced approach considers both the state’s interest in education and the parent’s freedom to choose. In addition, and perhaps most importantly, it permits a greater focus on the best interests of the individual child.”
In analyzing statutes and judicial decisions, three principles must be kept in mind:
(1) Regulating education is the responsibility of the respective states.
(2) Each state should determine whether its public policy should permit home instruction.
(3) It is up to the legislature of each state to codify that public policy into proper legislation. In San Antonio Independent School District v. Rodriguez (1973) the United States Supreme Court held that education is not a fundamental right provided for in the United States Constitution, but educating children is a legitimate state function, to be carried out in compliance with constitutional safeguards. The legislature in each state must determine if home instruction tends to be injurious to the public or against the public good. If not, then it is proper public policy. The courts have continued to recognize that if home instruction is proper public policy, it is the legislature’s responsibility to provide for this form of education in the laws of the state.
A structure for alternatives to public education, particularly that of home instruction, is imperative. (For example, Barrett  has developed a suggested “Home Education Act.”) The more clearly the structure is defined the less likely it is that litigation will result. A structure does not necessarily imply state control. Ambiguity in the statutes and other laws in the states have resulted in litigation and unnecessary expense and frustration. In states where there is no explicit authority for home instruction, legislation is needed and that legislation should be a balance to protect the interest of the state and the parents’ rights. Home instruction should be a specific exemption identified in the compulsory attendance statute. It should not be included under the private school exemption, nor should implied equivalency language be used. The legislation may take the form of explicit comprehensive language in the statutes or explicit language in the statutes to provide authority to the state board of education to develop regulations regarding home instruction. At a minimum, statutes and/or regulations should not be overly restrictive. The laws should be flexible but clearly stated. There should be options for compliance. The law should include:
(a) a clearly stated definition of terms including home instruction, private schools, instruction, course of study, and equivalency,
(b) an accounting procedure to identify all students of compulsory attendance age,
(c) a procedure to file statement of intent,
(d) options to evaluate the competency of the instructor,
(e) a statement of minimum academic standards,
(f) a minimum number of hours of instruction per year or a clearly stated definition of a school day,
(g) provisions for support to the parent by a certified teacher or an accredited institution,
(h) accountability procedure for identifying the student’s progress,
(i) a monitoring procedure to verify if the child is receiving an adequate education,
(j) a clearly established authority for enforcement of the laws,
(k) due process procedure, and
(l) a means to protect the child from educational neglect.
Parents in an increasingly mobile society who choose to educate their children at home should not be subjected to different standards, tests, and criteria simply because their address changes. A child’s education should not be a function of geography. A uniform home instruction law adopted by all states would solve that problem and reduce the uncertainty about home instruction. Indeed, at least one expert has written:
Differences in home schooling legislation from state to state reflect our long standing tradition of local control of public education. But, they also give home schoolers and their lawyers plenty of opportunity to haggle over the wording of state laws that basically are constitutionally sound. Some uniformity in home schooling laws might reduce the legal wrangling simply by giving more weight to legal language that already has been tested in courts. . .
It would help if someone went a step further and recommended a uniform home schooling law based on state statutes that have passed judicial muster. A uniform policy might look like a spot of tarnish on the holy grail of local control, but it would go a long way toward reducing confusion and litigation over home schooling. (Splitt, 1988, p. 8)
In many states public school administrators and parents are uncertain of their legal rights and responsibilities regarding home instruction because of ambiguity in laws or recent decisions in courts. School administrators grope for guidance in their dealings with families who are interested in educating their children in the nontraditional setting of home instruction.
Schools and their administrators and parents should be aware of their rights and responsibilities. Cooperation between the two would be in the best interest of the students. The desirable end goal of education should be agreed to by all parties. That goal should be stated broadly in terms of the ultimate product, the whole student.
1 Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Louisiana, Minnesota, Mississippi, Missouri, Montana, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming. Alaska’s explicit language refers to correspondence programs as part of the public school system.
2 Alabama, Kansas, Nebraska, New Hampshire, Oklahoma.
3 Admittedly, such categorization runs the unavoidable risk of over‑simplification. There were, to be sure, subcategories and “cusp” situations which will be discussed below. Information for these groupings was based on data obtained from surveys of state agencies as well as from the language of the statutes. Some overlapping of categories was inevitable. An example is Oregon, which was placed in the category of explicit language, where the statute referred to term “equivalent instruction” by a parent or tutor. The two states with rules and regulations and silent statutes did provide explicit requirements for home instruction, yet these rules and regulations did not have for this research the same political impact as statutory language provided through legislation. Consequently, for this research these two states were placed in the grouping of silent states.
Barrett, N. (1985). Home Education Act. In Education source book: The state legislators’ guide for reform 11. Washington, DC: American Legislative Exchange Council.
Naisbitt, John. (1982). Megatrends. New York, NY: Warner Books.
People v. Levisen, 404 Ill. 574, 90 N.E.2d 213 (1950).
San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 35 (1973).
Splitt, D. A. (1988). School Law. Executive Educator, 10 (December), 8.
Tobak, J. W., & Zirkel, P. A. (1982). Home instruction: An analysis of case law. University of Dayton Law Review, Fall 1982, 6‑10.
Whitehead, J. W., & Bird, W. R. (1984). Home education and constitutional liberties. 23‑24 Westchester, Il: Crossway Books, division of Good News Publishers.
Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed. 2d 15 (1972).
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