HSLDA has received questions about what to expect for homeschool freedom with a Democratic president and legislature. While we can’t predict exactly what will happen over the next couple years, we do know that the Democrat party is heavily supportive of public education and receives substantial support from the National Education Association (NEA).

If it were up to the NEA, homeschooling wouldn’t exist. The NEA has drafted a resolution stating that homeschoolers should have to meet all state curricular requirements, including taking assessments; homeschool teachers (i.e., parents) should be certified by the state; and no funding should go to benefit any form of home education. However, the NEA has not put any substantial effort into taking on homeschooling. If that changes, it will likely be in the form of model bills proposed in targeted states.

The federal government’s role regarding homeschooling

The 10th Amendment to the US Constitution, which enumerates the powers granted to the federal government, does not mention education. This means that all power related to education is reserved to the people and the states, not the feds.

However, thanks to Article 1, Section 8, of the Constitution, the federal government has the power to tax and spend for the general welfare—which covers a lot of territory. For example, when the federal government started funding public schools in 1965 to improve the quality of education, state-run schools became subject to federal regulation as a condition of receiving the funds. Since 1980, the federal government has spent $1.5 trillion on K–12 public education. Unfortunately, the quality of education has not improved.

How might Article 1, Section 8, aka the spending clause, impact homeschooling? In 1994, when Congress was reauthorizing the Elementary and Secondary Education Act—the massive federal spending bill that gets passed every so often to fund public schools—the reauthorization measure (House of Representatives 6, or H.R. 6) included a provision requiring all full-time teachers to be certified in their areas of teaching for a state to receive the federal money.

But surely the author of H.R. 6 didn’t intend for this language to apply to homeschool and private school teachers, did he?

Well, he wouldn’t agree to amend the bill to specifically exclude private and home schools from the meaning of the provision, so homeschoolers and private schoolers launched an intensive lobbying effort to get the bill changed. Our impact was so powerful that when the bill was finally brought to a vote in the House, the amendment went down by 410–1—and an amendment recognizing that Congress had no authority over private and home schools passed!

But let’s say the original provision had passed instead. The states would have amended their education laws to implement H.R. 6’s certification requirement, including homeschoolers in the requirement. Congress would then have been doing indirectly what they can’t do directly: regulating homeschooling.

Could Congress attempt something similar in the future? Yes, and that’s why HSLDA rigorously monitors all bills in Congress that have any impact on education. If we must mobilize the homeschooling network to defeat such an attempt again, our prayerful hope will be that we duplicate the result we had back in 1994.

Friendly fire

Even friends of homeschooling can threaten homeschool freedom, while generously trying to help. Some of our friends in Congress mistakenly believe that all homeschoolers want federal funding. But when we inform them to the contrary, they understand our concern: funds bring “strings.”

At the state level, some well-meaning school choice advocates also assume that all homeschoolers want state funding. However, many homeschoolers have discovered government dollars ultimately bring more regulation, which is not in the best interest of the kids who benefit the most from homeschool freedom.

The United Nations Convention on the Rights of the Child

Another risk to homeschooling on the federal level is the UN Convention on the Rights of the Child (CRC). Although this treaty was signed by President Bill Clinton in 1994, it has never been ratified. If ratified (requires a two-thirds vote in the Senate), the CRC would become law in our country, superseding state laws. This would seriously diminish parents’ freedom to make decisions about raising their children and could potentially harm homeschooling.

The states’ role regarding homeschooling

In addition to education being reserved to them in the 10th Amendment, states assert their authority over education in their own constitutions, and the Supreme Court has supported this. For example, in the case Wisconsin v Yoder, the Supreme Court said that the states have a legitimate interest in education because it promotes citizens’ literacy and self-sufficiency.

At the same time, the court in Yoder upheld the right of an Amish family to not send their children to public school. The Supreme Court also ruled, in Pierce v Society of Sisters, that parents have a constitutional right to not submit their children to a public education. HSLDA has used these two Supreme Court cases to argue that homeschooling is a fundamental constitutional right and that states must recognize it as a legal parental choice in education.

So how much can a state regulate homeschooling? In both Yoder and Society of Sisters, the court said that parents have a right to direct their children’s education, but also that states can reasonably regulate private education.

The Supreme Court has never directly addressed homeschooling—but other courts have. In Arkansas, for example, a federal circuit court ruled that the state could mandate standardized testing of Christian homeschooled children under public school supervision. The court surmised that since this was the least restrictive means for the state to achieve its compelling interest in education, the testing requirement was a reasonable regulation.

Thus, based on case law, states might be legally able to get away with a fair amount of regulation, which is why it’s critical that homeschoolers protect our freedom in the state legislatures. Once a regulation or law is passed, there is no guarantee that a court will ever declare it unconstitutional.

How COVID-19 could change state regulations

State homeschool organizations have their work cut out for them each year, both keeping an eye on the legislatures for bills that could affect home education and lobbying for homeschool freedom. This year, homeschoolers could see heightened efforts to regulate us because of how COVID-19 has impacted public education. There has been a several-fold increase in parents choosing to teach their kids themselves rather than struggle with public school online options, which poses a significant threat to public education’s revenue base. For those who believe that it’s the government’s rather than the parents’ responsibility to ensure all these kids are really learning, homeschool regulation will seem the logical next step.

The kinds of regulations that we could see advanced are additional notice requirements, statewide curriculum standards (for example, a bill mandating certain forms of curriculum has been introduced in Nevada), standardized testing, and increased teacher qualifications.

Regulations are sometimes introduced in the wake of a high-profile child abuse case involving children who are not in school or are being homeschooled. Some regulation proponents sincerely believe that these laws protect children. Other proponents simply want to see homeschooling banned.

Last year, Harvard law professor Elizabeth Bartholet kicked up a storm with her article calling for such stringent regulations that they would have spelled the obliteration of homeschooling. Based on her strong ideological opposition to parents teaching their own kids, she claimed that homeschooling yields an inferior education, that homeschooling parents are free to abuse their children, and that they shelter them from differing viewpoints.

Finally, we could see efforts to pass state laws granting children a fundamental right to a public education, which could create all sorts of problems for homeschooling. (This would flip parents’ responsibility to provide their children with an education to a “positive” right and a state responsibility. Read this article for a helpful explanation.)

How can we protect homeschool freedom this year?

We have seen numerous blessings for homeschooling families over the years. What was at first a tiny group of families has become millions of children worldwide. No one could have predicted such an educational shift!

HSLDA will keep doing what we always have been doing.

In every state and territory, we’ll continue working together with you to fight any efforts to reduce current homeschooling freedoms. We’ll monitor and oppose harmful legislation, strongly depending on the vigilant work of state homeschool organizations.

We’ll advocate for homeschooling in courts, legislatures, media, and public opinion. We’ll continue to support families practically, alongside the hundreds of organizations that help homeschoolers nationally, statewide, regionally, and locally. (And we'll rely on your family’s powerful grassroots voice and local involvement—making a difference in your own community and beyond.)

Finally, we’ll continue to pray for God’s continued blessing and protection on this great movement.

Homeschooling’s future is bright. With the Lord’s blessing and your partnership, homeschooling will continue to grow into a viable option for more and more families.