Kansas Executive Order number 20-59, which mentions private schools many times, is scheduled to go into effect on August 10. I do not believe, however, that the order applies to a typical homeschool.
By “typical homeschool,” I mean parents teaching their own children who have registered their program as a non-accredited private school with the Kansas State Department of Education.
I base my belief on the wording of the order, which mandates health precautions to be carried out in specific facilities that typical homeschools do not have. For example:
- Paragraph 1 places mask-related mandates on private schools that have “school attendance centers.”
- Paragraph 2 places social distancing mandates on private schools that operate “school buildings or facilities.”
- Paragraph 3 mandates hand-sanitizer usage in “private [school] . . . classrooms . . . buildings or facilities.”
- Paragraph 4 creates a temperature-checking mandate related to “attendance centers.”
On the other hand, the homeschool movement has sparked a great deal of innovation and creativity. As a byproduct of this tremendous inventiveness, there are many ways that small Kansas private schools and school-type programs operate other than what I have described as a “typical Kansas homeschool program.”
If you are involved in a private school program that is not what I refer to as a “typical homeschool program,” you would be well advised to seek out legal help so a lawyer can analyze your unique situation and give you individualized advice.
There is a lively discussion underway about whether the governor has authority to issue orders affecting homeschools or non-accredited private schools. It is a complex topic.
Once an emergency has been declared, the governor can issue orders. A properly issued order is “the law of the land” so long as it remains in effect.
There are, however, at least four important limitations on the governor’s executive order power:
- Kansas statute 48-924 (related to disaster emergencies)
- Kansas statute 48-925 (related to the power of governor during a disaster emergency)
- The Kansas Constitution
- The US Constitution
Since an executive order is a type of law, it can be struck down as unconstitutional just like a law enacted by the legislature.
Executive orders are not a type of martial law. The US Supreme court has said that martial law is not permitted so long as the courts are open and the usual civil authorities are operating.
An excellent analysis containing more detail than I can place in this short bulletin can be found in the March 24, 2020, memorandum from Kansas Attorney General Derek Schmidt. Because it was written several months ago, it does not specifically discuss Executive Order 20-59.
Also of potential interest to the homeschool community is Executive Order 20-58. As of this writing, however, it cannot go into effect because it has not been signed. Furthermore, since the Kansas State Board of Education did not concur in the order, it may never go into effect.
Homeschooling is a constitutional right. If any executive order threatens the rights of parents to homeschool their children, HSLDA’s team of seasoned litigators, fresh off an important victory in the Virginia Supreme Court, will be ready to respond. If you believe an executive order is infringing on your right to homeschool your child, feel free to contact us and allow us to review your situation.