HOME EDUCATION: A CRITICAL REVIEW OF THE STATUTES AND CASE LAW

Parental interest in home schooling has grown rapidly in the past decade.  Consequent to this increased interest, judicial and legislative activity has mushroomed.  State law regulating home schools is now in a constant flux.  One negative result has been that some judicial opinions have not kept pace with the growing research and parents seeking to determine their legal position are often confronted with numerous laws varying from state to state.
            The 125-page study, “Home education:  A critical review of the statutes and case law• (1987), by this writer reviews the current law in all 50 states, the District of Columbia, Puerto Rico, American Samoa, Guam, and the Virgin Islands.  A summary of each statute is set forth in an appendix.  Another appendix
categorizes the various jurisdictions into the type of statute enacted respecting compulsory education.  The study begins by historically overviewing the development of American education and then listing some of the objections to public education.  Federal statutory and case law is then reviewed, followed by state statutory and case law, which is divided into three basic categorizations:  public or private school, equivalent, and home school statutes.  The study is documented throughout with copious footnotes, and the information contained in these notes provides an excellent source for exhaustive research.
            Since the United States Constitution is silent on the subject of education, the Tenth Amendment is generally thought to preserve education as a state concern.  However, the Tenth Amendment has not prevented the U.S. Supreme Court from issuing opinions affecting education.  The Court has opined that
education is “perhaps the most important function of the state and local governments” (Brown v. Board of Education, 347 U.S. 483, 493 (1954).  The power of the state is not absolute; it is to be balanced by parental liberty and free exercise of religion interests, the latter affording greater protection than the former.  Meyer v. Nebraska, 262 U.S. 390 (1922); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406
U.S. 205 (1972).  Though states have a significant interest in education, such interest is not so extensive as to effectively eliminate the alternatives offered by nonpublic schools (Farrington v. Tokushige, 273 U.S. 284 [1927]).
            All 50 states have enacted some form of compulsory education statute.  These statutes fall into three general categories.  The first category provides that a child shall attend a public or private school; the second category requires attendance at a public school or equivalent instruction; the third category specifically allows for home schools.  Ten states, American Samoa, and Puerto Rico have the first type.  Thirteen states and the District of Columbia have the second type.  Twenty-seven states, Guam, and the Virgin Islands have statutes specifically allowing for home schools, and of this number, only Alabama and
California require certification of the home school teacher.  Thus, the majority of states now have home school statutes, and the clear trend is toward enactment of such statutes.
            The issue facing a home school parent in a state having a public-private school statute is whether the home school qualifies as a private school.  Some state judicial decisions once construed “private school” to mean an institutional-type school, and thus disallowed home schools (e.g., Washington, but now this state has a home school statute).  Meanwhile, some courts still cling to the institutional  interpretation.  For example, leading New Hampshire decisions have held that a home school is not a private school because home schools, allegedly, back the element of socialization.  State v. Hoyt, 146 A. 170 (N.H. 1929).  (But note that the New Hampshire State Board of Education has adopted home schooling regulations despite the
state statute and case law.)  In contrast to the New Hampshire courts, some states (e.g., Illinois, and most recently, North Carolina) have ruled that a home school is a “private school”  (People v. Levisen, 90 N.E.2d 213 [Ill. 1950]; Delconte v. State, 329 S.E.2d. 636 [N.C. 1985]).
            Constitutional challenges waged against statutes of the public-private type have received mixed results.  Some courts have suggested no constitutional right can be raised, while other courts have intimated that a constitutional right can be raised, while other courts have intimated that a constitutional right does exist in the due process clause of the fourteenth amendment or the free exercise clause of the first amendment.  Arguments that the term “private school” is unconstitutionally vague have been met with both success (Washington and Georgia, both of which now have home school statutes) and failure (Arkansas, which also now has a home school statute).  Kentucky is an example of a state which has a public-private statute but has no judicial decision directly addressing home schools, yet the Kentucky State Board of Education classifies a home school as a private school.
            The issue facing parents in a state which has enacted an “equivalent” statute is whether the home school offers equivalent instruction to that offered in a public school.  Iowa is an example of an equivalent statute that specifically requires teacher certification.  If the statute does not require certification, the issue may be whether noncertified instruction is equivalent to certified instruction.  Since certification unduly regulates nonpublic schools (though not all courts have agreed) there is a good argument as to the constitutionality of such regulation.  The best test, as some courts have so ruled, for determining equivalency is through standardized testing (e.g., Kentucky, when addressing a public-private statute;
contrast this with North Dakota, which also addressed a public-private statute and, though conceding certification may not equate with teaching competence, held such regulation is nevertheless reasonable).
            Though the focus under equivalent statutes should be academic equivalence, some courts still antiquatedly reason that home schools cannot be equivalent because of the so-called socialization element.  The better reasoned cases (e.g., Indiana and Massachusetts) have soundly rejected socialization as a factor to be considered in determining equivalency.  For example, the case of State v. Peterman (70 N.E. 550 [Ind. Ct. App. 1904]), rightly held that the number of persons does not make a place of instruction any more or less a school.
            The equivalent-type statute lends itself most easily to challenges based on vagueness.  If the statute does not define equivalent instruction, then the State Board of Education (a regulatory and not a judicial or legislative branch of government) is granted too much unchecked authority to determine the requisite education.  A common person of ordinary intelligence has little or no guidance by which to determine compliance with the statute.  Constitutional challenges based on parental liberty and free exercise of religion have sometimes prevailed.  Unfortunately, some cases, for whatever reason, have failed to raise free exercise allegations, even when the parents chose to home school in part because of religious convictions.  Though free exercise challenges have generally met with more success than parental liberty challenges, some courts have myopically construed the United States Supreme Court case of Wisconsin v. Yoder, supra, so narrowly that the only winning religious challenge would be one grounded in the Old Order Amish religion.
            The final category of state statutes include those specifically allowing for home schools.  As expected, litigation under a home school statute is not as active as under the other two aforementioned types of statutes.  Ironically, some parents have argued their home school should be classified under the
statute as a private school rather than as a home school.  Such litigation has occurred in Florida, where the former statute required certification of home school instructors but not of private school teachers.  This issue is now moot since a recent Florida statute no longer requires certification of home school teachers.
            Constitutional challenges against the teacher certification requirements of Alabama and California have so far proven unsuccessful.  The Missouri home school statute was declared unconstitutionally vague because of the “equivalent” requirement, but the amended statute wisely omits the “equivalent” section.
            Regulation of the home schools may be more expansive under a home school statute than under other types of statutes.  This is so because the statute specifically addresses home schools.  Mississippi represents one of the most lenient statutes, requiring only that the parent notify the superintendent.  Tennessee probably represents one of the most regulated statutes, imposing potentially different requirements for grades K to 8 and grades 9 to 12.  Some statutes require the parents to have a minimal education, to be “qualified” to teach, or to have a certain level of college training. Other requirements may include submission of a proposed curriculum, attendance records, achievement tests or some form of evaluation, number and length of school days, and possibly health and safety inspections.
            Much has been done judicially and legislatively towards allowing home schools, yet further reforms are necessary.
 
            Editor’s note:  Mathew D. Staver is an Associate in the law firm of Zimmerman, Shuffield, Kiser, & Sutcliffe, Orlando  FL;
B.A, Southern College (1980); M.A., Andrews University (1982);
J.D., University of Kentucky (1987); member of American Bar
Association, Florida Bar Association, and Orange County Bar
Association; Mr. Staver and his wife, Anita (M.Ed., Candidate),
home school their nine(c)year(c)old daughter, Meredith.  He may be
contacted (at 1022 Worthing Court, Winter Park  FL  32792) to
inquire about obtaining a copy of his manuscript.