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Maryland’s “Observe Instruction” Rule Overthrown at Last

by Scott Woodruff • July 23, 2019

The last remaining regulation calling for government officials to watch and evaluate homeschool parents as they teach their children has finally been abolished.

In the culmination of a 16-month campaign, the Maryland State Board of Education voted today to strike the homeschool “observe instruction” rule, as well as the related rule requiring umbrella programs to annually visit the site where a homeschool student is receiving instruction.

The board voted 6-1 (with 2 members abstaining) to adhere to the opinion of State Superintendent of Schools Karen Salmon. She said it was time to abolish the rule because it is clear that Maryland homeschool families care about providing a well-rounded education for their children. She added that any attempt to enforce the rule would simply waste resources on what amounts to an invasion of privacy.

The effective date of the rule change is August 12, 2019 (see page 689). I sent a letter (see example) to every public school superintendent in Maryland informing them of the change and urging them to comply.

Meeting with State Superintendent of Schools Karen Salmon HSLDA’s Grace McClellan speaks with Maryland Superintendent of Schools Karen Salmon before the meeting. Salmon was very supportive of the rule change.

Though the regulation had remained on the books for decades, education officials invoked it intermittently and inconsistently. Home School Legal Defense Association also established a solid record of defending families against the regulation.

But a bill introduced by a state lawmaker in 2018 called for elevating the “observe instruction” regulation to the statutory level, which would have made it even more burdensome. Maryland’s homeschool community vigorously opposed the measure, which was subsequently withdrawn.

However, the incident showed the need for renewed efforts to get rid of the rule once and for all.

Shadowy Legacy

As long as the regulation remained, Maryland homeschool families lived under a shadow: the prospect that a public school employee might insist on watching a child be instructed by his or her parent, sitting in judgment on them. It’s worse than ridiculous to think that a person steeped in the public school mindset could watch a homeschool mom interact with her child for a limited time and discern whether she provided acceptable instruction during the year!

What made this situation worse was how public school systems actually used the regulation. Some counties, very sensibly, ignored it altogether. Others insisted that homeschool parents bring their kids into the school office during their annual portfolio review.

Many families were unprepared for this demand and felt vulnerable: they thought they had no choice. But those who contacted HSLDA for help quickly learned they could say “No thank you” and make it stick.

This inconsistent, unfair system invited abuse—and abuse happened. It was also, in my view, unconstitutional.

I offered families guidance on how they could protect themselves. I even drafted a special notice of consent form, for HSLDA members only, in which the family does not consent to allow a school employee to observe instruction.

Try, Try Again

Following the victory against House Bill 1798, on April 12, 2018, I contacted homeschool leaders around the state and asked them to join a new effort to abolish the rule. Every leader I contacted agreed, and each group contributed to the success of the campaign.

While it would have been possible to move forward without the cooperation of the department (by filing a formal petition for rulemaking), we decided that the better first step was to seek the department’s support. On May 18, 2018, therefore, homeschool leaders met with several department staff members. We received a warm and friendly reception.

We presented a compelling case for why the rule needed to go—and found them eager to support the change! They agreed that the department itself would champion the rule change. Thus there would be no conflict between the department and the homeschool community. What a fantastic start!

True to their word, they began the lengthy, cumbersome process of getting the regulation changed. Many administrative steps needed to take place before the change could actually be accomplished.

Finally, this week, the historic vote occurred.

Resisting History

There was a time when five jurisdictions around the nation imposed requirements similar to Maryland’s. One by one, the requirements all toppled in response to HSLDA lawsuits.

But HSLDA never had an opportunity to challenge the Maryland regulation in court for one very simple reason: every time an HSLDA member, with our support, refused to submit to the rule, the official backed down.

Now, the final representative of a class of harsh, unreasonable, and unconstitutional rules is gone. No more Maryland children will have to endure, as one child did during a portfolio review, being harassed and demeaned. Today freedom and dignity take a big step forward!

Scott Woodruff

Senior Counsel

Scott is a seasoned attorney and homeschool advocate with decades of involvement in homeschool legal issues and cases. Read more.

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