“Homeschools”
By Richard R. Hammar, J.D., LL.M., CPA
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Any discussion of private schools would be incomplete without some reference to homeschools. An increasing number of parents are choosing to educate their children at home. A few courts have ruled that parents who educate their children at home are not in violation of state compulsory attendance laws requiring minor children to be educated in public or private schools. This conclusion is based on a finding that a compulsory attendance law is “void for vagueness” since it permits children to attend private schools but does not define the term private school with sufficient clarity to enable parents who educate their children at home to determine if they are in compliance.1
However, most courts that have addressed the question have ruled that parents who educate their children at home are in violation of compulsory attendance laws. Such courts typically find that home instruction cannot reasonably be included within the term school, and that prosecution of parents for violating the law does not abridge their constitutional right to freely exercise their religion.2 These courts often rely on the Supreme Court's dictum in Wisconsin v. Yoder3 that “the power of the parent, even when linked to a free exercise [of religion] claim, may be subject to limitation . . . if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.”
To illustrate, a federal district court in New York ruled that a state law governing “homeschooling” did not violate the constitutional right of fundamentalist Christian parents to the free exercise of their religion.4 The law in question required that educational services provided to a minor “elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools.” The law also required that homeschooling be conducted by “competent” instructors, and called for periodic standardized testing and the approval of a homeschool's curriculum and textbooks. Visits of homes in which homeschooling occurs also was mandated. A group of parents challenged the law, contending that the state “did not have jurisdiction” over their children's education. In particular, the parents maintained that their religious beliefs compelled them to give their children a religious education in which religious values are “interwoven” into every area of study, and that the New York law violated their right to religious freedom by reserving unto the state the power to approve or disapprove the manner in which they accomplished the religious education of their children. The court acknowledged that “it is with trepidation that [we] interfere with the traditional interest of parents with respect to the religious upbringing of their children.” Nevertheless, the court concluded that the state's interest in ensuring an adequate education for its citizens was sufficiently compelling to justify the legal restrictions on homeschooling. The court observed:
Unless a child is a member of an identifiable religious sect with a long history of maintaining a successful community separate and apart from American society in general, it must be assumed that the child must be intellectually, socially, and psychologically prepared to interact with others who may not share the views of the parents in the [present case]. A state's interest in establishing standards for the education of its young in order to prepare them for participation in American political and economic processes as well as to nurture and develop their human potential overrides the interest of parents to teach their children in a religious school or at home free from governmental interference.1
The court acknowledged that the parents feared that the state would require them to teach secular matters inconsistent with their religious beliefs. While acknowledging that “there may be cases in which the manner the state enforces the mandate of [the law] unnecessarily infringes the free exercise rights of particular parents,” the court concluded that “the mere possibility that such cases might arise is not enough to invalidate” the state law. As a result, the court rejected the parents' challenge to the constitutionality of the New York law. Similarly, a federal appeals court rejected the contention of homeschoolers in Arkansas that a state law regulating homeschooling violated their constitutional right to religious freedom.2 The court concluded that the state had a “compelling interest” in the education of its citizens, and that such an interest outweighed the alleged religious convictions of homeschooling parents, provided that the state employed “the least restrictive means” of accomplishing its compelling interest. The court observed that the only restriction imposed by the state of Arkansas on homeschoolers was the requirement that their children take standardized achievement tests periodically. This limitation, concluded the court, was far less burdensome than other state--imposed limitations that had been upheld by the courts in other states, and was clearly the “least restrictive means” of assuring that the state's compelling interest in the education of its citizens was being accomplished.
Several other courts have reached similar conclusions.3
For related information on this topic see the following articles:Incorporation and Tax Exemption of Private Religious Schools
Proof of Nondiscrimination in Private Schools
Right to Attend Private Schools
The Distinction Between Public and Private Education
Discharge and Discipline of Students of Private Schools
Discharge and Discipline of Teachers
Application of Federal Labor and Discrimination Laws to Private Schools
Government Regulation of Private Schools
Zoning Laws and Private Schools
Safety and Health Regulations for Private Schools
Taxation of Private Religious Schools
Child Abuse Reporting Requirements for Private Schools
Legal Liability for Student Injuries