The Washington Times
April 25, 2000

Access to special services varies from state to state

By Michael Farris
The Washington Times
April 25, 2000

Christopher Hooks, 12, needs speech therapy. Even though he is home-schooled, one reasonably would assume he falls into the definition of “all children” who are to be offered such services under the Individuals With Disabilities Education Act (IDEA).

The Clark County School District in Las Vegas refused to provide such services when Christopher’s parents applied for them in the 1996-97 school year. The reason? Federal law didn’t compel the district to do so.

Here’s the reasoning, which is bolstered by a “letter ruling” from the Clinton administration’s Department of Education. IDEA requires public schools to offer at least minimal (formally called Tier III) special education services to “private school” students. If home-schoolers are labeled as private-school students by their state’s law, then they get Tier III services. If they are labeled home-schoolers by state law, then they do not.

What this means is that home-schoolers in California, Texas and Illinois, to name three examples, get services. Home-schoolers in Virginia, Nevada, Oregon, New York and many other states do not get services.

In all, home-schooled students from seven states clearly get services. Students from 11 states clearly do not. In the rest of the states, it is a jumbled mess because home-schoolers can elect between a form of private schooling and a separate category formally labeled home-schooling.

Congress does some funny things from time to time—but it would be unfair to accuse Congress of voting for a law that required so many lawmakers to vote to give students in a handful of states special-needs services while denying such services to students from their own states.

There may be a few lawmakers who would vote to deny special-needs funds to all home-school students, but there is not a single representative or senator who would vote to place home-schoolers in his own state in a peculiarly disadvantaged position compared with other states.

The debate between the Hooks family and the Clark County schools is now before the U.S. Court of Appeals in San Francisco. I argued the case before the court on April 12.

Since the appeal was filed about a year ago, the Nevada Legislature has approved an amendment that requires local school districts to give the same level of Tier III services to home-school students as federal law requires they give to private-school students.

So the Hookses’ lawsuit—which could still set a national precedent—will decide only whether the Clark County schools were right in denying services in the past. If the Hookses win, they will be reimbursed for the services they had to pay for in the interim.

And the school district had better hope the Hookses win; otherwise, it will not be eligible to receive federal reimbursement for the services it supplies to home-schoolers under the new state law.

Why do I say that?

The law that allows states to get reimbursed is triggered by a count of “private school” students who received Tier III services in the previous year. Nevada hasn’t relabeled home-schoolers as private schoolers.

One law says only “private school” students receive services—in this case, “private school” includes home-schoolers. Another law says only “private school” students can be included in a school district’s count for federal reimbursement—in this case, home-schoolers are excluded. Obviously, the term must mean the same thing in both places.

The Hooks decision would wipe out the distinction between “private school” and “home-school.”

During oral argument, I was asked what I thought about the federal role in education generally. The three-judge panel didn’t seem surprised when I answered I would prefer the complete elimination of any federal role.

But so long as the federal government keeps taking money out of the pockets of home-schooling families and giving it to the Department of Education, we are going to be there demanding equal treatment, no matter what state we live in.

Michael Farris is the father of 10 home-schooled children and president of the
Home School Legal Defense Association

Copyright 2000 News World Communications, Inc. Reprinted with permission of The Washington Times. Visit our web site at http://www.washtimes.com.