Home Schooling and "shared" Enrollment: Do Nebraska Public Schools Have an Obligation to Provide Part-time Instruction?

• Publication year: 2021

79 Nebraska L. Rev. 840. Home Schooling and "Shared" Enrollment: Do Nebraska Public Schools Have an Obligation to Provide Part-Time Instruction?

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Tim W. Thompson*

Home Schooling and "Shared" Enrollment: Do Nebraska Public Schools Have an Obligation to Provide Part-Time Instruction?

I. INTRODUCTION

In the United States approximately one million school-aged children are being educated at home.1 In Nebraska about 4,700 children are home schooled.2 Home-schooling is one of the major trends of the 1990s, the effects of which will be felt into the twenty-first century.3 Families are turning to home education primarily for religious reasons. However, others teach their children at home because they are concerned about the quality of instruction, curriculum, and textbooks in the public schools or about the influences of peer interaction at public schools.

As a result of this growing popularity of home-schooling, public school districts are increasingly being subjected to legal challenges

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brought by parents of home-schooled students who want to enroll their children in the activities of public schools. The issue has arisen because "[d]espite the variety of sequenced and integrated curriculum materials now available for home schooling, homes simply cannot provide many enrichment activities - such as band, orchestra, choral activities, forensics, and many sports - without cooperation from some established education institution."4 Eighty-one percent of home educators feel that they need or want to enroll their children in extracurricular activities at public schools, and seventy-six percent of home educators would like to enroll their children "part-time" in academic courses in public or private schools.5 To date, however, the majority of legal efforts by home-schooled students to gain access to public school activities have failed.

II. HOME SCHOOLING IN NEBRASKA

Educating children at home has become popular primarily due to state legislative enactments authorizing home instruction.6 Most state statutes prior to 1980 either prohibited home-schooling or failed to address the issue.7 Today, however, home-schooling is authorized in some form in every state.8

Initially in Nebraska home-schooling was only authorized when the requirements for approval and accreditation required by law and the rules and regulations adopted and promulgated by the State Board of Education9 violated the sincerely held religious beliefs of the parents.10 In 1999, however, the Nebraska law on home-schooling was expanded to authorize parents who merely wanted to "direct their child`s education" to home school their child.11 The legislative aggrandizement of the categories of authorized home-schoolers was in response to assertions by some parents that the prior legislative

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requirement that parents provide the Department of Education with a sworn statement12 that their children were being home-schooled due to sincerely held religious beliefs forced them (or tempted them) to submit false statements.13 Arguably, the ease with which the homeschool exception was expanded14 reveals a legislative fondness for home-schoolers and their parents.15

Nebraska Revised Statutes section 79-1601 and Rule 13, which was promulgated by the Nebraska Department of Education, delineate the procedures and requirements for parents to follow when they elect not to meet the legal requirements for state approval and accreditation. Rule 12 was adopted by the Nebraska Department of Education in 1999 to address the requirements for students seeking exempt status based on the parents` desire to direct the education of their children.16 Under either Rule 12 or 13, a home educator must provide a program of sequential instruction in the language arts, mathematics, science, social studies, and health. In addition, the home-educated student

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may be subject to regular achievement testing by the Nebraska Department of Education.

When parents of children who do not attend the public school are denied access to the activities of the public school, litigation may result. In general, these judicial efforts have been largely unsuccessful for the home-schoolers. Success, however, has been found in the legislative arena where statutes have been enacted permitting homeschooled students to participate in the activities of the public school. A. Statutes

Fifteen states have enacted statutes, rules, or regulations that specifically guarantee some type of public school access to students educated primarily at home.17 Nebraska, however, is not one of those

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states.18 Therefore, in Nebraska, a parent of a home-schooled student may feel the need to litigate the issue of the rights of his or her homeschooled child to participate in public school activities.

B. Case Law

The litigation that has arisen regarding the legal obligation of public schools to allow access to home-schooled students is generally based on the contention that the denial of access was a violation of free exercise of religion, equal protection of law, and due process. Most courts addressing the issue have applied the rational-basis analysis19 and eventually determined that they should enforce the public school district`s policy of full-time enrollment in the public schools as a requirement to participate in public school activities. Further, most of the cases arise as a result of requests to participate in extracurricular activities and not as requests to participate in the public school curriculum.

1. Classroom Instruction

Two reported cases have analyzed parents` requests to have their home-schooled children be allowed to participate in the public school curriculum on a limited basis. The two reviewing courts reached opposing conclusions.

In Swanson v. Guthrie Independent School District No. I-L,20 parents who were home-schooling their daughter sought to have her par

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ticipate in a public school program on a part-time basis. Annie Swanson sought to participate in foreign language classes, vocal music and some science classes. Annie`s parents believed that the public school had a greater ability to teach these classes than they did.21 The school board denied the parents` request and adopted a policy that required all students enrolling in their school to enroll on a full-time basis only.22 The parents challenged the board`s denial, alleging that the district`s policy violated their child`s constitutional rights.

The Tenth Circuit held that the child did not have a constitutional or statutory right to attend classes at the public school on a part-time basis.23 In so holding, the court reasoned that the policy did not restrict the parents` right to the free exercise of religion as the full-time attendance policy was neutral and of general applicability on its face; in that, it applied to all children who wished to attend public schools on a part-time basis. 24 The court further reasoned that the policy did not violate the parents` constitutional rights to direct their child`s education in any way they choose because such right is limited in scope and parents may not control every aspect of a child`s education to the exclusion of state authority.25

In Snyder v. Charlotte Public School District,26 a sixth-grade parochial student wanted to enroll in the band course at the public school. She was denied enrollment because the board`s policy limited enrollment in all classes to only full-time public school students. The stu-dent`s parents filed suit, claiming that the board`s policy violated their constitutional rights to free exercise of religion under the First Amendment and to equal protection under the Fourteenth Amendment.

The Supreme Court of Michigan held that the public school was required to offer shared-time programs.27 The court based its decision on a Michigan statute that gave a resident of the district who was at least five years old the right to attend school in the district.28 The court reasoned that because this statute was not conditioned upon full-time attendance, part-time attendance must be allowed.29 The court stated that there was no evidence that part-time attendance would disorganize and disrupt the maintenance of the school, noting that "[i]t would be just as easy, economical and convenient (if not more

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so) to open these classes to nonpublic school students as it would be to provide these classes to them if they became full-time public school students."30 The court further stated that nonessential elective courses, such as band, art, domestic science, shop, advanced math and science classes, need not be taught in nonpublic schools and are the courses that have traditionally been offered on a shared-time basis.31 The court ruled that "once these types of courses are offered to public school students in the district, they must also be offered to resident nonpublic school students."32

2. Extracurricular Activities

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