Home School Court Report
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VOLUME XIX, NUMBER 2
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MARCH / APRIL 2003


FEATURES

Together for freedom: Passing liberty to the next generation

Letter should fix college admission problems

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The battle for the front door
From the heart
Across the states
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No child left untested

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a contrario sensu (on the other hand)

HSLDA legal contacts for November/December 2002



  COVER STORY  



by Scott Somerville, HSLDA Staff Attorney

Every summer, the National Education Association enacts a resolution calling for the restriction of homeschooling. Every winter, as the state legislatures go into session, the opponents of homeschooling get their best chance to do just that. As a result, Home School Legal Defense Association members are once again scrambling to defend their liberty in some states and are working to advance liberty in others. This legislative season has also seen good bills filed in a number of states. In this article, we will examine how ordinary families have been able to preserve their freedom from powerful forces opposed to home education. By studying how homeschoolers have been effective in the past, we can build towards even more freedom in the future.

THE ANATOMY OF FREEDOM

Homeschooling continues to amaze the experts. At first, the educational experts said it couldn't work: ordinary families around a kitchen table could not possibly compete with the multimillion-dollar educational systems. Political experts said it couldn't last: ordinary citizens could not possibly outwit the hostile and powerful union that dominates the educational establishment. Despite their doubts, homeschooling is still here.

Homeschool weakness
It is not through strength of numbers that homeschoolers have achieved so much freedom. There have been homeschoolers throughout America's history, but they were so scattered throughout most of the 20th century that there wasn't even a name for what they were doing. According to Pat Farenga of Holt Associates in Cambridge, Massachusetts, it was not until 1967 that the term "homeschooling" emerged to describe the underground phenomenon of parents who chose not to send their children to public or traditional private schools. It was rare for any homeschooler in the 1960s or early 1970s to know any other homeschooling family within driving distance. The first homeschool support groups really could meet in a phone booth!

Establishment strength
Homeschooling was treated as a crime in most states, even though educational freedom had been recognized as a constitutional right in Supreme Court cases decided during the 1920s. In California in 1958, a veterinarian took his son out of 4th grade because he was so bored that he was becoming a discipline problem. After teaching him at home for 18 months, the child was doing 9th grade work. The court convicted the father, holding that academic success was no defense to truancy. The court ruled that the state had the right to force the child to do 4th grade work with his 4th grade peers.

Homeschoolers were up against one of America's defining institutions (the public school) dedicated to one of America's core values (education) operated by some of America's most respected professionals (teachers). To add to the challenge, homeschooling appeared on the scene just as the National Education Association was being transformed from an organization of professionals and scholars to a tough and disciplined labor union that wielded its increasing political power to protect the special interests of public school teachers.

Surprising victories
The amazing thing about the early days of home education was that there were any victories at all. The New Jersey courts took people by surprise in 1967 when they ruled that homeschooling satisfied New Jersey's requirement that children attend public school or be "given instruction equivalent to that provided in the public schools for children of similar grades." In most of the other states at that time, however, the only victories homeschoolers won were the small victories of not getting caught.

Indiana and Illinois were exceptions to the rule. Those states had long permitted homeschools to operate as private schools, because their courts had concluded that a "school" was a place where children were educated, regardless of how many children happened to attend. Christian Liberty Academy in Arlington Heights, Illinois, took advantage of this law to offer a private school program to children who were being taught by their parents all across the country.

Homeschoolers across the country argued that their homes were private schools. Some states accepted this approach, and homeschools in those states generally operate as "private schools" to this day. Others prosecuted homeschoolers, with mixed results. Several courts ruled that even though homeschools were not necessarily "private schools," the private school laws were too vague to enable a reasonable person to tell what was legal and what was not. This meant the legislatures in those states had to draft new laws to clarify what was permitted and what was not. In these cases, homeschoolers were able to make sure the new laws permitted some form of home education.

LEGISLATIVE BATTLES

A number of courts in other states ruled against educational freedom, however. By the early 1980s, homeschoolers in many states were left with difficult choices: hide, move, or persuade the legislature to create a new legal option for parents who educate their own children in their own homes. Remarkably enough, homeschoolers were able to persuade one legislature after another to pass homeschool statutes in the 1980s:

>> 1982 Arizona and Mississippi legalize homeschooling.
>> 1983 Wisconsin and Montana follow suit.
>> 1984 Georgia, Louisiana, and Virginia pass homeschool statutes. Rhode Island gives superintendents the authority to "approve" homeschool programs.
>> 1985 Arkansas, Florida, New Mexico, Oregon, Tennessee, Washington, and Wyoming all enact homeschool statutes.
>> 1986 After homeschoolers won a federal court case, Missouri legalizes home education.
>> 1987 Maryland, Minnesota, Vermont, and West Virginia all permit homeschooling.
>> 1988 Colorado, New York, South Carolina, North Carolina, and Pennsylvania allow parents to teach their own children at home.

"The Evil Empire"
Three states (North Dakota, Iowa, and Michigan) prosecuted homeschoolers so fiercely that they became known as the "Evil Empire." One family after another was prosecuted for teaching their own children in their own homes, and the courts were quick to convict. Finally, in 1989, after seven fruitless appeals to the North Dakota Supreme Court, homeschoolers finally won. The legislature legalized home education.

The next state in the Evil Empire fell in 1991, when Iowa finally enacted a homeschool statute. One official within the Iowa Department of Education still did her best to block homeschooling through restrictive state regulations, but freedom-loving families in Iowa worked even harder to keep the freedom they had earned. (In the end, the homeschoolers won, and the disgruntled official left the Iowa Department of Education to work in another state agency.)

By 1993, only one state still routinely prosecuted homeschoolers: Michigan. Then, on May 25, 1993, five judges on the Michigan Supreme Court overruled four dissenting judges to allow sincere religious parents to teach their own children at home without a teacher's license. It was not until 1996 that the state legislature finally allowed any parent to teach a child at home without some assistance from a certified teacher.

Holding the line
In the early days, when homeschoolers were few and far between, a number of homeschool bills got through the legislature without much opposition from the educational establishment. By the early 1990s, however, homeschoolers in most states had gone from "underground" to "mainstream." This meant new legislative challenges as homeschooling grew in numbers.

According to the Wall Street Journal, homeschoolers are remarkably effective at defending their liberty. In an article titled "Home Schoolers Learn How to Gain Clout Inside the Beltway," April 24, 2000, Daniel Golden wrote:
Pennsylvania Congressman Bill Goodling, chairman of the House Committee on Education and the Workforce [now retired], calls home schoolers the most effective educational lobby on Capitol Hill. They frequently volunteer in his election campaigns. "They know the issues," says Rep. Goodling. "And they have an outstanding phone network." A study last year by two University of North Carolina sociologists concluded that home-schooling families are more likely than public-school families to work for political campaigns, contribute to candidates, participate in protests or boycotts, sign petitions and write letters to the editor. "We're the activists," says Michael Farris, president of the 60,000-member Home School Legal Defense Association in Purcellville, Va.

In the old days, the "education experts" had said that homeschooling could not possibly work. As the evidence of homeschool success mounted, the "experts" took a new tack. Now they said, "Homeschooling is fine for some families, but it needs to be regulated to make sure that parents are properly qualified." The general public is more tolerant of homeschooling, but still want "a little more regulation." According to a 1999 Phi Delta Kappan/Gallup poll, 92% of Americans believe homeschoolers should have to take the same tests that public school students take.

This means that homeschoolers are constantly holding the line of the liberty they have already won. In New Jersey, for example, where homeschooling had operated with virtually no government oversight since 1967, the Department of Education issued guidelines in 1997 that would subject every homeschool program to the scrutiny of their local district. In Kentucky, families have battled one disastrous bill after another for years on end. Overwhelmingly, homeschoolers have been able to block legislation that would take away their liberties.

Rewarding success
Homeschooling is the most successful educational reform movement in America, and some state legislatures have been willing to reward homeschoolers for their success instead of punishing them. Arizona abolished its testing requirement in 1995. The Colorado Legislature has repeatedly reduced burdens on homeschoolers over the years, thanks to some very effective homeschool activists in that state. Illinois and Minnesota now offer tax credits to homeschoolers. Nevada just adopted new homeschool regulations that free homeschoolers from teaching the same hours as public schools or meeting public school Content and Performance Standards. In 2001, New Mexico dramatically streamlined its homeschool statute, abolishing annual testing requirements. Oregon eased its requirements from annual standardized testing to tests in four grades, while Virginia lowered its "cut-off score" from the 40th percentile to 23rd percentile. West Virginia, which requires the homeschooling parent to have "four years of formal education higher than that of the most academically advanced child," has waived that requirement each of the last several years.

THE PRICE OF LIBERTY

Not every state has been so willing to expand homeschool liberty. Many families in Pennsylvania and New York were disappointed last fall when their elected officials rejected bills that would have reduced many of the regulatory burdens in those states. It is possible to advance freedom in difficult states, but homeschoolers have to be willing to work hard and work together. HSLDA is committed to providing our members with the tools they need to prevail.

Educated citizens
Ordinary citizens can make an impact on their legislature if they know what legislation is being considered and why it should be supported or opposed. HSLDA invests a great deal of time and effort in tracking any legislation that might affect homeschooling, parental rights, or religious liberties. We track important legislation on our website, and send "e-lerts" to our members and friends when it is time to take action.

Effective citizens
Homeschoolers are some of the most effective citizens in our participatory democracy because they actually participate. Time after time, when HSLDA has asked our members to contact their elected officials about proposed legislation, our members have taken immediate and effective action. Legislators find it easy to ignore one or two calls or letters, but they rarely ignore the combined impact of aroused homeschoolers.

Homeschoolers can be very effective in talking to legislators or their staff because, unlike so many other constituents, homeschoolers are not asking for benefits. A polite, articulate parent (or child) can go a long way towards persuading legislators that homeschoolers have earned their freedom.

It is important to be polite when dealing with legislative staff. This can be difficult in some cases: not all legislators support homeschooling, and some legislative aides can be rude, arrogant, and dishonest. For example, aides who have already received dozens of calls about a bill they have never even read can be tempted to say something like, "You don't know what you're talking about; that particular bill has nothing to do with homeschooling." While it might be tempting to be equally rude in return, it is vastly more effective to be as polite as possible on the phone and then to immediately inform HSLDA of the specifics of the conversation. With our e-lert capability, we can explain the problem to our members and even give them the exact language of the bill so that they can read it out loud to the staffer. Our job is to overwhelm the opposition with countless well-mannered, well-informed calls.

Low-maintenance legislators
Defending freedom is hard work, and in most states, homeschool freedom is at risk each year. As Judge Gideon Tucker observed in 1866, "No man's life, liberty, or property is safe when the Legislature is in session." The only long-term defense of liberty is to elect legislators who understand and support homeschooling.

There are few high school civics lessons that provide more short- or long-term value than volunteering to help with an election campaign. Election campaigns can be big and expensive, like the ones for federal representatives who serve in Washington, DC, or they can be local and much more personal. State representatives usually run low-budget campaigns that depend heavily on yard signs and door-to-door canvassing: perfect projects for the motivated homeschool teen. In any election year, there ought to be at least one local candidate that your family could volunteer to help. If you help a candidate win, you can rest assured that he will remember who helped him win when homeschool freedoms are at risk. Even if your candidate loses, your experience in the campaign will make you much more effective in the future. Besides: your candidate's opponent just might realize that it isn't good politics to make the homeschoolers mad!

CONCLUSION

Our Founding Fathers believed in hard work, personal responsibility, and self-control. They believed in self-government, wherever possible, and established a system where active and informed citizens could prosper. Much has changed in the last two hundred years, but the Constitution they adopted to "secure the Blessings of Liberty to ourselves and our Posterity" is still in force. As long as homeschoolers are willing to stay informed and work together, we can pass that liberty on to another generation.