October 15, 2001

Delaware State Child Care Booklet Requires "Licensing" of Home Schools

Home School Legal Defense Association recently responded to a document that an agency of the state of Delaware has begun sending out explaining child care regulations in the state. Without any legal authority, the Delaware Office of Child Care Licensing (OCCL), a division of the Department of Services for Children, Youth and Their Families (DSCYF), is requiring home schoolers who provide paid instruction to non-related children to be "licensed."

Following is the text of the letter we sent to DSCYF:

"In reviewing the licensing requirements for family child care homes effective June 1, 1994, as set forth in the DELACARE booklet, it states that the legal basis for the licensing requirements is in two places in the Delaware Code: Title 31, Chapter 3, Subchapter II, Subsections 341-344 and Title 29, Chapter 90, Subsection 9003(7). In reviewing these statutory provisions, I note that the former relates to the regulation of a "boarding home," not a private school or home school or any other form of education. The latter Code provision setting forth the powers, duties, and functions of the Department of Services for Children, Youth and Their Families relates to residential and nonresidential childcare facilities, not private schools or home schools. Thus, there appears to be no statutory authority for the Department to regulate the education of children in any setting. The Department has presumed to include education as an area subject to its licensing requirements without citing any statutory authority to do so from the Delaware General Assembly. It would appear that any such authority would be vested in the Department of Education under Title 14 of the Delaware Code.

"The most disturbing provision of the enclosed document from the OCCL is the statement to parents that 'you must prove your eligibility for exemption from licensing to OCCL.' In America, citizens do not have to prove to the state that they are not guilty of some violation of the law. Instead, under the Fifth Amendment to the United States Constitution, citizens are presumed to be innocent until proven guilty and have the right to remain silent during any investigation or court proceedings against them. Accordingly, we are advising our member families in Delaware that they are not required to provide any information to OCCL about the nature of their home school.

"Home School Legal Defense Association is committed to defending the constitutional rights of parents who have elected to educate their children at home. In most cases we are successful in resolving differences between our members and state officials without the necessity of litigation. However, when necessary, we assert the civil rights of our members in federal court actions against these officials under 42 USC §1983 seeking both damages and reimbursement for legal expenses. I trust that no such action will be necessary against Delaware officials attempting to implement the unlawful policy described in the enclosed document."

We encourage member families who come across unauthorized policies like this to contact HSLDA so that we can stop illegal government expansion.