Home Schooling and the Law

Somehow a reporter from a local paper found out about my mother's decision. And that was when I found out the terrible truth--I was living with a criminal. There it was in black and white in our local newspaper: "Vera Miller is in violation of the law, as she refuses to send her son to school in defiance of state compulsory attendance regulations." (The irony, however, was that, unlike most school-attending first graders, I could actually read the article.)

Despite the publicity, my parents never received a visit from school board officials. And the following year they also held my younger sister out in continuing violation of the law. Enrolled in school at age seven-plus, both my sister and I skipped grades and went on to successful scholastic careers, pursuing terminal degrees in our respective fields. (And that may be one of the points of the story, that the success of home schoolers has paved the way for widespread legal protection for home-schooling.) But it is only since my family's early seventies brush with a life of crime that laws have been passed in most states protecting the kind of educational choices my parents made.

Many people are surprised to learn that home schooling is not explicitly protected by the federal Constitution. In the 1925 case of Pierce v. Society of the Sisters, the Supreme Court did affirm the right of parents to direct their children's education by sending them to private religious schools.[1] This case, often referred to as the "Magna Carta" of parochial schools, means that the state cannot force its citizens to attend public schools. Parents have the right to send their children to qualified private schools.

The Supreme Court said nothing, however, about home schooling, and stated that the regulation and oversight of education was still within the province of the state. In Wisconsin v. Yoder,[2] the Court upheld the right of the Amish to withdraw their children from formal schooling after the eighth grade. But this decision relates only to compulsory secondary school attendance, and much home schooling takes place at the elementary and primary level. The Yoder case is also probably limited to its facts: a unique Amish community and way of life being threatened by having their teenage children kept in the classroom rather than helping in the fields and workshops of their farms. The typical home-schooling family does not resemble this picture.

So while the federal Constitution protects generally the right of parents to provide a religious education for their children, it is left to the states to protect the particular form that education can take--such as home schooling. My family's violation of the law in the seventies may have been the norm for home-schooling families generally. Very few states formally protected home schooling before the 1980s. Presently 37 states[3] have home-school statutes, but 35 of those statutes were passed after 1980. Only Utah and Nevada had such statutes before the 1970s.

But now even states that do not have home school statutes have found ways to protect the practice of home schooling. Oklahoma protects home schooling in its state constitution. Other states have provisions in their private school regulations that allow for the practice of home schooling. Still others have provisions for the use of "private tutors" that can serve as the basis for a home school. Still others allow for it under vague statutory clauses, such as specifying that children must be "otherwise comparably instructed" as those in public school. In New Jersey, home schools are considered under the category of receiving education "elsewhere than at school."

With so many different laws and statutory schemes regulating home schools, any prospective home schooler must become familiar with his or her state's requirements. While most states do not require home-schooling parents to have any specific educational qualifications, there are nine that require at least a high school diploma or GED.[4] At least four states require home schools to be subject to the discretionary approval of a state official.[5] About half of the states, 26 altogether, require some form of standardized testing or evaluation.[6] The tests may be annual or given only in certain grades. The evaluation may take the form of a review by a state official of a home schooler's educational portfolio or curriculum. Eight states allow some form of religious exemption from certain schooling requirements.[7]

To those who value the God-given duty of parents to shape their childrens' education, it is gratifying to know that every state presently offers some opportunity for home schooling. It is troubling, however, that the basis of this important right may rest on the precarious whim of the state legislature, the state court, or even a single state official. One would hope that the Supreme Court would extend the reasoning of its decisions in Pierce and Yoder to constitutionally protect the practice of responsible home schooling. Unfortunately, recent Supreme Court decisions have contracted rather than expanded civil and religious rights. The trend is toward allowing the states to protect, or infringe, individual rights as the state legislature sees fit.

A glimmer of hope is offered by the Religious Liberty Protection Act (RLPA), recently passed by the House of Representatives and pending in the Senate as of this writing. RLPA is an attempt to undo the damage of recent Supreme Court decisions undermining religious freedom protections. The act restores the compelling state interest test that had protected religion prior to 1990, and which resulted in decisions like Pierce and Yoder. This act would give home schoolers nationwide equal footing to claim that home schooling is a national legally protected right. It is not guaranteed that federal courts would recognize such a right under the act. But as the act would restore the test that produced Pierce and Yoder, there is reasonable hope that courts would extend such protection to home schoolers. Until then, home-school families are only a small step removed from the notorious home-school crime families of the seventies!

Nicholas Miller is executive director for the Council on Religious Freedom.



[1].Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925).
[2].Wisconsin v. Yoder, 406 U.S. 205 (1972).
[3].According to the Home School Legal Defense Association's latest report (from which the figures found in this and all following footnotes are taken), states with home-school statutes are: Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.
[4].The nine states requiring a high school degree or a GED are Georgia, Maryland, New Mexico, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, and West Virginia. Additionally, in West Virginia, the parents must remain four years ahead of the grade level of the student.
[5].These are Maine, Massachusetts, Rhode Island, and Utah.
[6].States that require testing are Georgia, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, South Dakota, and Tennessee. States that allow evaluation as an alternative to testing are Colorado, Connecticut, Florida, Hawaii, Iowa, Louisiana, Maine, Massachusetts, New Hampshire, New York, Ohio, Pennsylvania, Vermont, Virginia, Washington and West Virginia.
[7].States that have some type of religious exemption are Alabama, Alaska, Maryland, Nebraska, Pennsylvania, Tennessee, Vermont, and Virginia.

Article Author: Nicholas P. Miller

Nicholas Miller, Ph.D., is an attorney and associate professor of church history at Andrews University, Berrien Springs, Michigan. He is the author of the The Religious Roots of the First Amendment (New York: Oxford University Press, 2012), which more fully develops the theme of this article.