THE LEGAL SIDE OF HOMESCHOOLING:
An Overview of the Legal Risks and their Solutions

The Academy endorses the work of the HSLDA.

by Thomas R. Orr, Esq.

Families homeschooling for the first time often have questions about legal challenges or threats that they might face from local or state education authorities. Those who do seek an answer to these questions are often faced with a confusing array of laws, policies, and regulations that not only vary from state to state, but also between school districts, and school officials within the same state or district.1 In response to this confusion, many already involved in homeschooling have joined associations like the Home School Legal Defense Association ("HSLDA"). Such associations provide some excellent reference materials, ongoing newsletters, and other informational materials.2 Their most prominent feature, however, is the limited legal services that they offer in exchange for an annual insurance-like fee. Such associations also often conduct high-visibility lobbying efforts to promote changes in federal, state and local laws related to homeschooling. We applaud and endorse the good intentions and work of the HSLDA, and all those who likewise seek to protect and benefit all homeschoolers. The Great Books Academy is an HSLDA member organization, allowing its members to obtain a discounted membership.

Do you need legal insurance? Do you need to join an association to protect your legal interests? If you are in a state or school district involved in on-going harassment of homeschoolers, or denial of their rights, then it might be a very good idea to get the insurance and join a homeschool legal defense organization. But, is there a realistic chance that local authorities will challenge you legally if you homeschool?

Despite the headlines that one occasionally sees, statistics establish that very few these families will face an in-court battle. For example, a study of cases handled by one homeschool defense association between 1984 and 1990 showed that out of thousands of families served by the organization, only twenty-eight had ever had contact from local officials. Of those twenty-eight, only eighteen families were summoned to court. Seventeen of those families won their day in court and, most significantly, sixteen of the families won without a lawyer.3 As one prominent attorney explains: "Even in restrictive states, the percentage of parents who actually get prosecuted is only a little higher than the percentage who get struck by lightning. They're very selective about who they prosecute, and the vast majority of parents, even in these states, get left alone."4

This is not to say that local school districts and superintendents will not, on rare occasions harass homeschoolers, or that local child protective services, who are sometimes biased against homeschooling families, will not investigate homeschooling families based on false reports of child abuse. Indeed, some recent reports out of California would indicate that these tactics, particularly false claims of child abuse against homeschooling parents, are on the rise. These cases can and do happen - but to a small minority. Careful adherence to local and state laws is the ounce of prevention that will avoid the pound of cure needed through legal action.

What should you do if you find yourself in this unfortunate minority? HSLDA is a good place to start, but if you are not a member, they are free, of course, not to accept you as one once a problem has already arisen. As a trial lawyer experienced in litigation involving school districts and other government entities, I would suggest that consulting with an experienced local lawyer is a good first step. Specialized law firms experienced in state law and state courts generally represent school districts. A good counterbalance to such experienced local adversaries is a local attorney or firm with well-established relationships in the local business, political and judicial community. The attorney should be one with a command of local law and procedure, the ability to work out problems short of litigation, and a reputation for a willingness to take worthy cases to trial. But a call to the HSLDA is an inexpensive place to start, and they might be able to refer you to a good local attorney experienced in these matters.

Bringing in a national homeschool defense organization, if you are a member, is a step that should be carefully considered. Such associations may bring expertise, knowledge and additional resources that can prove helpful. But they can also bring a level of publicity and a litigation strategy that is counterproductive to a quick resolution in the best interests of the family. Although laudatory in their goals and efforts, these associations have also been criticized on other levels. Some have criticized such associations, we think unfairly, for: fostering an unwarranted dependency on their services; imposing their own ideas of what is the best homeschool method; requiring the same information from members that is demanded by hostile school officials (i.e. test results, curriculum, academic background of the parent, notification of previous contact with officials, etc.); lacking the requisite familiarity before local and state courts;5 engaging in legal actions and legislative lobbying that might inadvertently strengthen state and local control over homeschooling families.6 However, criticism does not always equate with reality, and is often unfair and ill-motivated, so you need to consider and form your own judgements on these matters. In our opinion, the HSLDA has been of absolutely enormous help and assistance to the great majority of homeschoolers they have represented, and to the homeschool movement as a whole, and as stated above, we endorse their work.

Families should approach legal challenges with the same courage and individuality that they originally approached the question of whether to homeschool. As the U.S. Supreme Court has observed: "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right coupled with the high duty to recognize and prepare him for additional duties."7

Most states recognize the foregoing principle in some form or another and, with each passing year, homeschooling is becoming more and more accepted. Indeed, one recent study estimated that there are at least 1.23 million homeschooled children (other estimates range to over 2 million).8 Legal challenges from school officials are the exception - not the rule. This gives parents the ability and the duty to put out small legal fires before they flare up into uncontrolled litigation conflagrations.

Knowledge of your state's regulations and precompliance with them provides a safe harbor. Indeed, the minority of cases that do end up in court generally stem from a failure of the parents to follow basic state or local laws from the outset. If you receive an inquiry from a school official, handle it tactfully and without threats. Often a courteous phone call is all that is required. If your initial efforts are not successful, quietly consult HSLDA or a local lawyer on the best way to solve the problem and avoid litigation.

In essence, making decisions in this area, as in all others, calls for the very thing instilled by a true classical education - the ability to make right judgements based on a proper balance of a well-formed intellect, good and sufficient information, and the moral virtues of prudence and justice.

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