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Where Are We Now? The State of Homeschool Laws

February 15–18, 2016   |   Vol. 126, Week 5

Homeschool laws vary greatly by state, and the difference between virtual freedom and heavy regulation can be as simple as a trip across the border. Stay tuned to hear Homeschool Heartbeat host Mike Farris and his guest discuss the best and worst states for homeschooling.

“The era we’re in today is the era of improving the homeschooling laws to recognize more and more freedom.”—Jim Mason

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Have you ever wondered how the freedom to homeschool has changed over the years? Then tune in to this week’s Homeschool Heartbeat,as your host Mike Farris and HSLDA’s Jim Mason discuss the remarkable journey of homeschool law.

Mike Farris: I’m joined today by Jim Mason. Jim is the Vice President of HSLDA’s Litigation Department. Jim, welcome to the program!

Jim Mason: Nice to be here, Mike.

Mike: More than two decades have passed since homeschooling became recognized as legal in all 50 states. It was always legal, because of the Constitution—I just want to make that clear. But the government finally recognized it about 20 years ago, more or less. Tell us what the homeschool laws look like now, compared to how they looked back in the 90s.

Jim: I look at the homeschooling laws as, kind of, eras. And in the first era, homeschooling was largely unknown—that’s kind of the 60s and 70s. And then in the 80s, homeschooling was starting to become popular, but it was largely thought to be illegal, which is why Home School Legal Defense came on the scene. During the 80s and 90s was really the battle to make homeschooling recognized throughout the country as being legal. 

We’re now in a different era. The era we’re in today is the era of improving the homeschooling laws to recognize more and more freedom. Some of the laws that were adopted back in the first era are unacceptable by today’s standards. 

Mike: What’s caused the dramatic shift?

Jim: Several things. First, more and more parents are choosing to home-educate their children for a variety of reasons, including the decline of the public schools, religious reasons, and so forth. 

But probably the most dramatic shift has come because homeschooling has become recognized as legal throughout the country. So more and more people see that as an invitation to get into the pool of homeschooling.

Mike: Thanks. I’m Mike Farris.

Jim: And I’m not!

Mike: Jim, yesterday you described the second era of homeschooling law, where freedoms are being improved on a state-by-state basis. In this second era, what states have made the most dramatic changes in the right direction?

Jim: Well, most recently, one of the most highly regulated states in the country is Pennsylvania. And after many years of attempting to get that law changed—by state organizations and HSLDA working faithfully with them year after year—finally, the legislature adopted the law that gets the superintendents out of the home education approval business. Now they didn’t technically have to approve, but they had to review a whole host of paperwork to determine whether the education being provided was appropriate. 

Today, instead of having to turn in a portfolio, a standardized achievement test, and an evaluation, the only thing that the parents have to turn in is an evaluation by the teacher hired by the parents saying that the education was appropriate.

Mike: Well, Jim, I know that that’s going to relieve a whole lot of moms, especially, in Pennsylvania, because the paperwork burden was enormous in Pennsylvania. Many districts just simply didn’t care what you signed. They’d just, you know, pass you. But many were very problematic in that. This is a real improvement for Pennsylvania and congratulations to the state organization and to the lawyers who worked on that.

Jim, of course, homeschooling laws vary considerably from state to state. Today, which are the states that are the easiest for homeschoolers to deal with?

Jim: Mike, I like to think of this as: which states are the most free? 

The states that are the most free today are Oklahoma—which has an actual constitutional provision that guarantees the right to homeschooling—Indiana, Texas, and Illinois are all private school states in which parents don’t really have to have any contact with the state official. New Jersey has always had a statute that allows parents to homeschool their kids and provide equivalent instruction to what they would get in the public school. And Idaho has just an amazing law that has been crafted over many years of legislative improvement to where it’s virtually completely free in Idaho. 

Mike: Jim, I know that Montana has a really good law. Also, Virginia’s religious exemption, where it’s working properly, is a terrifically good law. About a third of the states, I would say, are basically in the sector that you’ve just described. 

Jim: Yes, I’d agree with that, Mike. States like California—homeschools are considered private schools with a very minimal amount of involvement with state officials. There are other states where homeschools are treated like private schools as well, that require, maybe, a filing of an informational report or something like that. But very little involvement. 

Mike: Now tell us about the tougher states?

Jim: Well, some of the tougher states are the less free states. Even though Pennsylvania has improved its law recently, it still has a very burdensome requirement on homeschoolers to keep lots and lots of records, to file an affidavit at the beginning, standardized achievement tests, and so forth. 

In New York, in the early days, it wasn’t really clear how to homeschool and there was a regulation adopted that made it very clear how you could legally homeschool in New York. But it imposes terrific burdens, including [that] parents still have to provide quarterly reports, which is an unacceptable requirement by today’s standards. And we’re constantly looking for ways to improve that. 

Massachusetts and Rhode Island are two of the remaining states that require actual approval before you can homeschool, which means you have to submit documents to the school district, and the school district has to approve your ability to homeschool. And that’s something that we’re also really trying to change. 

Mike: Jim, that’s a lot of progress, but there’s still a lot of work to be done.

Jim: So today, I’m going to ask Mike the questions. Mike, can you tell me about a case I did that illustrates the point that I can’t make myself?

Mike: Yes, I can Jim. You see, you had a New Jersey family. And they got the light after a while. They had their child in the public school, and the girl, in this particular case, became high school-age. This little rural New Jersey district contracted with a public school just across the border into New York.

Now, New Jersey homeschooling law is free, and in New York, the homeschooling law is highly regulated. When the girl decided, and her parents decided, rather, to take the girl out of the public school and homeschool her, the officials had the audacity to claim that New York’s law was controlling. The reason they did that is they wanted the more highly regulated New York law so they could exercise more control.

And the judge was buying this for a while, but ultimately, we argued that the compulsory attendance law had been passed in New Jersey, and at least he understood that much of the law, and he ruled in our favor.

But it really illustrated for this family the real, important difference between a highly regulate state like New York and a free state like New Jersey.

Jim: Boy, Mike, stories like these prove the value of federalism. For Mike Farris, I’m Jim Mason. And he’s not!

Mike: Jim, a lot of us spend a lot of time thinking about, talking about, the 2016 presidential election. What do you see coming for homeschoolers on the issues that are developing on the campaign?

Jim: Well, one of the big issues, of course, is how much control the national government is going to have over the education of children out in the states. We, of course, believe that education is a local function and that each state should be able to dictate how it regulates.

The Common Core is something that’s really important for our listeners to watch, because each of the candidates has a very distinct position on Common Core and someone who is in favor of the Common Core is very likely to—whether on purpose or not—introduce more federal control over local education issues. 

Mike: Do any of the candidates seem to know anything about the UN Convention on the Rights of the Child and other treaty issues that could dramatically impact the rights of homeschoolers?

Jim: From my analysis, Ted Cruz seems to understand the importance of the United States maintaining its sovereignty for our own internal, domestic governance. Rand Paul also seems to understand the importance of actually negotiating treaties, as opposed to giving away our sovereignty through executive and other measures. 

Mike: And I can add that I know that Mike Huckabee has opposed those particular treaties as well. My best guess about the other candidates is that they simply haven’t studied the issue.1

On the Republican side, I would say probably that most of them may have good instincts, but their knowledge base is lacking for the most part in that.

But on the Democratic side, you can be guaranteed that Hillary Clinton, who used to be the chairman of the Children’s Defense Fund, will do everything within her power to move the UN Convention on the Rights of the Child and these other human rights treaties. So, something to be watching for.

Jim: I agree, Mike, we need to be very vigilant.

Mike: I’m Mike Farris.

1Senator Marco Rubio also opposes the United Nations Convention on the Rights of Persons with Disabilities. Visit our UNCRPD microsite for more details.

Jim MasonJim Mason

Home School Legal Defense Association Deputy General Counsel Jim Mason has defended homeschoolers from truant officers, school superintendents, and social workers in courts and administrative tribunals all over the country. He obtained his undergraduate degree at Oregon State University and his law degree at Regent University. Jim served in the United States Navy and is a veteran of Operation Desert Storm. He and his wife, Debbie, have homeschooled all of their seven children. Their oldest son is a student at Grove City College in Pennsylvania. They live in Virginia’s Shenandoah Valley.

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