Home Schooling in Kansas Friend or Foe
| Publication year | 1994 |
| Pages | 30 |
| Citation | Vol. 63 No. 02 Pg. 30 |
63 J. Kan. Bar Assn. February/March, 30 (1994). HOME SCHOOLING IN KANSAS FRIEND OR FOE
February/March, 1994
Copyright (c) 1994 by the Kansas Bar Association; David S. Adams
Four years ago this lawyer had never heard of parents "home schooling" their children. Surprisingly, I have encountered a number of families since then who are conducting class for their children in their own homes. Upon occasion I have been asked about the legal issues involved in home schooling and have found that Kansas is one of the few states in the country that has not squarely addressed the issue. Kansas practitioners need to be aware of the legal issues involved in home schooling to better serve this growing segment of parents.
HOME SCHOOLING: AN OVERVIEW
It is true that a growing number of parents today are seeking to educate their children at home. While exact numbers are hard to determine, the estimates range from 300,000 to as many as one million children being schooled at home, and most of the evidence indicates there has been a dramatic increase, possibly tenfold, in the past decade. [FN1] It has been recently estimated that Kansas has at least 5,000 families involved in the home schooling of their children. [FN2] The reasons vary, but a large percentage cite a disillusionment with the public education system for one reason or another. [FN3]
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General studies and research have consistently pointed to above average academic achievement by home schooled children, especially in reference to their public school counterparts. [FN4] Not everyone, however, is singing the praises of home schooling. The large teachers' groups and education associations have consistently viewed home schooling with a skeptical eye and have regularly sought a requirement that a parent must have a teacher's certificate before a home school can be started.
Generally, criticism of home schooling is centered on the premise that children taught at home will be deprived of needed socialization skills. [FN5] Also cited are the specialized skills of trained educators and the general lack of such abilities in parents. [FN6] Another criticism is that home schooling may be used as a coverup for mistreatment of children. [FN7]
Kansas currently has a compulsory school attendance law that does not specifically provide for home education. [FN8] Proposed amendments to the statute that would specifically allow parents to educate their children at home have failed to pass.
Compulsory school attendance statutes are currently in effect in all 50 states. [FN9] These statutes largely evolved in the late 19th Century and early 20th Century. [FN10] From the founding of the American colonies to the development of large public school systems in the late 19th Century, American education had been predominantly private in nature. [FN11] Parents were free to educate their children at home by themselves, with tutors, at church schools, or through private educators. [FN12] Statutory laws were uncommon as most parents accepted a duty to educate their children much as they had accepted a duty to clothe, feed, and otherwise support their children. [FN13]
The principal question that arises in the area of home schooling today is this -- in order to fulfill the state's interest in having an educated citizenry, to what extent may the state restrict the right of parents to direct the education of their children? This article will explore the issue of home schooling from a constitutional perspective and in light of recent legal developments. The history and future of home schooling in Kansas will also be addressed.
LEGAL DEVELOPMENTS IN THE AREA OF HOME SCHOOLING
As one might guess, the increasing number of families home schooling their children has led to many legal fights. Usually the problem begins when state officials, not recognizing a home school as a "school" for purposes of the compulsory attendance statutes, seek to prosecute parents criminally for educational neglect. Such prosecutions and the threat of such prosecutions have resulted in many changes across the nation in statutory and case law regarding home schooling.
Home Schooling Statutes
Prior to 1982, only three states had laws dealing specifically with the subject of home schooling. [FN14] Since 1982, thirty-two states have changed their compulsory attendance law or amended their regulations, to allow specifically
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for home schooling under certain conditions. [FN15] Ten of these statutes or regulations have been changed or amended since 1988. [FN16] The remaining states are still trying to deal with home schooling under their long-standing compulsory attendance statutes, resulting in many legal problems.
States with specific home schooling laws. The common thread running through state laws that specifically address home schooling is that instruction at home is a protected avenue of education subject to some assurances of adequacy by the state. These "assurances of adequacy" vary, but there are some prevalent procedures used by many of the states.
Generally, specific home schooling laws require parents to give a public official notice of their intention to home school. Four states require "approval" by local school officials before home schooling will be allowed. [FN17]
Twenty-five states have required that some form of standardized achievement tests be used to evaluate the progress of a homeschooled child. [FN18] New Hampshire, in the most recently passed home schooling statute, has used standardized tests as one of several possible evaluation means for home-schooled children. [FN19] Many states do not set specific requirements on how well a home-schooled child must perform before the home school will be allowed to continue. [FN20]
All home-school laws have required parents to teach certain basic classes, and all have set a minimum number of days or hours of instruction. [FN21] Most of these home schooling laws consider parental qualifications a non-issue. Twenty states set no educational requirements for home schooling parents, [FN22] and four require only a high school diploma or GED. [FN23] Of the remaining states with home schooling laws, six require some college education, but there are exceptions provided in five of these states. [FN24] Arizona and North Dakota require a parent to pass a basic skills test. [FN25]
Other states and their compulsory attendance laws. States that have not specifically passed laws addressing home schooling have varied widely in how they deal with this growing phenomena. The compulsory attendance laws of these states generally say one of two things. "Private school" statutes, like the one in Kansas, say that if a child is not in a public school the child must be in a private school. [FN26] "Equivalency" statutes say that a child must be receiving some sort of equivalent instruction to that given in a public school. [FN27] In either case, these statutes have been the source of frequent litigation and turmoil as courts and public officials are asked to decide whether home schooling will qualify as a "private school" or "equivalent instruction" for purposes of the compulsory attendance statute. Not surprisingly, the outcomes have varied even in states with seemingly similar statutes. [FN28] States that have not specifically determined how to approach home schooling, including Kansas, have often left those in charge of enforcing truancy laws without guidance. Unfortunately, the deciding factor is sometimes the attitude a public official has toward home schooling in general, and not the particular facts of the case. [FN29]
Case law developments
For those states not having specific home schooling
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statutes, there has been considerable confusion in interpreting the compulsory attendance statutes and how they apply to home schooling. This has been especially true in the last decade as the number of home schooling parents has dramatically increased.
Specific home schooling statutes. In general, states that have passed specific home schooling statutes have become less burdened by litigation problems. Some of these statutes are relatively new, but others have been in place for nearly a decade. Few problems have been encountered with the requirement that parents file an intent to home school with the state. [FN30] There has, however, been resistance where the parent must gain "approval" from the state before being allowed to home school. [FN31] These parents submit that they should not have to petition the government for a right that is already theirs -- namely the right to direct the education of their children. Problems have also been encountered in those states requiring visits by public officials to inspect home schools. [FN32]
"Equivalency" statutes. A fair amount of litigation in regard to home schooling has been generated by those states requiring "equivalent instruction" for children not in public schools. [FN33] Several courts have looked at these "equivalency" statutes and held that they were unconstitutionally vague. [FN34] These courts have said that if a parent is going to be criminally prosecuted for violating the compulsory attendance statute, there must be more definite standards of "equivalency" by which these parents can conform their conduct. [FN35] Only one of these courts approached the statute in light of the parents' fundamental right to direct the upbringing of their children. [FN36]
In the case of Care and Protection of Charles, [FN37] the Massachusetts Supreme Court found that its compulsory attendance statute was not unconstitutionally vague, but at the same time found that local superintendents and school committees did not have unbridled discretion to approve or reject a home school. [FN38] The court found that the...
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