DIY Education: Developments in State Legislation on Homeschooling

by Kate Brewer, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Homeschooling is a continuously growing practice, particularly following the COVID-19 pandemic.¹ While there has been little debate on the legality of homeschooling since the widespread establishment of homeschooling freedoms in the 1980s, approaches to regulation continues to make waves. In recent developments, some states have begun changing their approach to homeschooling by adjusting the level of government oversight and control they will impose on parents choosing to homeschool, some becoming stricter, others more lenieknt. Two states that exemplify this juxtaposition are Ohio and Michigan as they move toward opposite ends of the spectrum of stringency regarding homeschooling legislation.

This article explores recent state legislative activity on homeschooling against the backdrop of the “fundamental right” of parents to homeschool their children. Part II details the background of homeschooling legislation in the United States and the more current developments. Part III discusses the merits of the arguments for and against increased homeschooling regulations with respect to the Constitution. Part IV concludes by calling for states to enact at least minimum levels of oversight into their homeschooling programs and by acknowledging the difficulties that judicial challenges to homeschool regulations would likely face.

II. Background

Under the Tenth Amendment, the education of children is a state concern.² In several cases, the Supreme Court declined to establish a federal constitutional right to education under the Fourteenth Amendment.³ Additionally, they have not established an explicit constitutional right to homeschool. Yet, at the root of homeschooling legislation is the judicially-supported “fundamental right” of parents to direct the education of their children, which developed in the first half of the 20^th century in cases such as Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige.⁴ In these cases, the Supreme Court established that it was unconstitutional to unreasonably interfere with the liberty of parents to control the education of their children and to require all children to attend public schools on due process grounds.⁵ Then, in the 1970s, the Supreme Court struck down a state law requiring compulsory public school attendance on religious freedom grounds in Wisconsin v. Yoder.⁶ These are the two main constitutional provisions under which proponents of homeschooling freedom claim constitutional protection, and the Supreme Court has supported that contention.

And yet, compulsory school attendance laws have not been entirely banished. The Supreme Court has recognized the state’s authority and interest in regulating education and allows states to require students to attend school – with exemptions permitting homeschooling, private schooling, and other approved educational alternatives.⁷ Courts will often consider the interests of the parties involved when faced with a challenge to education legislation, including not only the state interests in child welfare and education or parents’ interests in directing that education, but also the rather ambiguous right that children have to receive an education.⁸ This is another concept that is not enshrined in the United States Constitution; rather, many state constitutions and federal laws have established a quasi-protective bubble around children’s education, with the Supreme Court recognizing its importance in monumental cases such as Brown v. Board of Education.⁹ It can be assumed that efforts to deny children an education would not be looked upon favorably, hence the state-level attempts to mandate public school attendance.

However, not all states have approached homeschooling with the same tactics. Especially today, stark differences can be seen between states legislation on the matter. Some states with the least restrictive homeschooling legislation include Texas and Alaska, while states with the strictest legislation include New York and Pennsylvania.¹⁰ In the most lenient states, legislation may not include requirements for notification, approval for curriculum, or standardized testing.¹¹ They might dictate that parents should provide instruction on subjects normally taught in public schools, but without specific standards or requirements.¹² Meanwhile, in the states with the most restrictive legislation, it may be required that homeschooling families submit instruction plans with educational objectives, regular reports on educational progress, undergo standardized testing, and maintain portfolios of student work.¹³

Making waves in recent news are Ohio and Michigan, heading in opposite directions on the level of regulation. In the late 80s, homeschooling legislation in Ohio required that families submit a notice of intent to homeschool to their local school district but was generally flexible in the educational requirements that homeschooling families had to follow.¹⁴ Later, regulations aimed to increase accountability and oversight by requiting standardized testing and evaluation of homeschooling programs, a trend that continued until the 2010s, when legislation granted some grace to homeschooling families by simplifying the submission processes for notices of intent to homeschool and academic assessments and providing them with two avenues of requirements under which parents can choose to conduct their homeschooling programs.¹⁵ Even more recently, Governor Mike DeWine signed a bill that brought significant freedoms to homeschooling parents. It simplified the notice of intent requirement, redefined homeschooling from an “excuse” to being an “exemption” from public school, did away with annual academic assessments, reduced the number of required subjects to be taught, and eliminated the requirement for parents to meet certain teacher qualifications under ORC 3321.042.¹⁶

Meanwhile, Ohio’s border-buddy Michigan is moving in the other direction after decades of being one of the laxest states when it comes to homeschooling requirements. Early legislation required children to attend some form of school and that homeschooling parents were be certified teachers.¹⁷ In 1993, however, the Michigan Court of Appeals decided in People v. DeJong that the certification requirement was unconstitutional.¹⁸ Since then, homeschooling parents in Michigan have also not been required to submit an educational development plan, maintain student records, or participate in standardized testing.¹⁹ In 2023, however, some government figures began to call for increased state oversight into homeschooling in response to recent reports of child abuse and mistreatment.²⁰ This has sparked debate in a state where there have been relatively lax regulations on homeschooling historically.

The Washington Post estimated that there may be as many as 2.7 million home-schooled children in the United States – but the number is nearly impossible to ascertain because many states, such as Michigan, do not require parents to report that they are homeschooling.²¹ With states taking such different approaches to homeschooling legislation, it is worth understanding the current legal issues surrounding homeschooling and how courts have historically approached the matter.

III. Discussion

During and after the pandemic, the number of children being homeschooled grew exponentially.²² This is one of the reasons states such as Michigan or South Dakota have considered increasing government oversight of the practice.²³ Homeschooling regulations have also seen increased attention due to recent situations involving child welfare, including numerous examples of undetected abuse and one instance where parents were instructing their children using Nazi educational materials.²⁴ Proponents for increased oversight on homeschooling argue that unregulated homeschooling can pose safety risks for children, as well as a general danger of children not being provided basic academic skills necessary to function in society.²⁵ Their concerns may not be unfounded.

The studies on the correlation between homeschool and abuse are few and far between, but have seemingly not found that child mistreatment is more prevalent in homeschooled children than in children enrolled in public schooling.²⁶ Even so, the concern of proponents for homeschooling regulations tends to be that abuse will not be noticed and/or reported in a homeschool setting as it would hopefully be in a conventional school setting.²⁷ Indeed, in 2021, the majority of reports of child abuse and neglect were made by professionals, with nonprofessionals (including friends, neighbors, and relatives) having submitted less than one-fifth of the reports.²⁸ In theory, children who are homeschooled are going to have less interaction with professionals and mandatory reporters such as teachers than a child who attends conventional school, decreasing the likelihood that abuse by a caregiver would be detected and reported.

This is not to say that parents should not maintain the ability to direct their child’s education. In fact, parents and the state have a shared interest in seeing to it that children are given the skills and knowledge necessary to be well-functioning adults. Just as public schooling is not without faults, homeschool experiences are not always negative. There are certainly some circumstances where homeschool may be a more suitable option for children, such as frequent traveling or relocation, a lack of accessible schools, or due to the special needs or qualities of a particular child. However, when insufficient oversight allows for homeschooling to become a catalyst for miseducation and mistreatment, the government cannot adequately protect their interests in child welfare and education. Without regulations ensuring that homeschooling parents are adequately educated and qualified to be teaching their children, nor that the state must assess the quality and progression of that education, there is simply no avenue for states to ensure that those children are receiving the level of education required to function – much less thrive – in society.

Further, conventional schooling provides children with more than just an education. Children are typically exposed to arts, sports, and other extracurriculars at school, all while being surrounded by peers with whom they can socialize. These experiences are recognized as being formative and valuable for the development of children by experts and child development institutions.²⁹ It is certainly possible for homeschooled children to be exposed to the same opportunities – in some cases, homeschooled children score even higher in social skills than non-homeschooled children³⁰ – but without regulating homeschooling activities, states cannot possibly ensure that all homeschool children are receiving those benefits at an equal level to children attending conventional school.

Aside from safety and qualitative issues, a state’s approach to homeschooling also invokes legal and constitutional considerations. While homeschool is considered by many to be a “fundamental right,” and it may very well be treated as one, the matter is not so simple. A strict textualist reading of the Constitution typically results in few findings of fundamental rights – only those explicitly enumerated, such as the freedom of speech. In recent years, the Supreme Court has moved toward a textualist interpretation of fundamental rights and away from so-called “substantive due process,” the more inclusive approach to due process matters. Under substantive due process, the Court has historically broadened the list of fundamental rights, only for them to later sway to the other side and become more selective about what is protected as a fundamental right.³¹ When looking at the most recent decisions of the Supreme Court on matters such as abortion,³² where they have chosen to narrow the list of fundamental rights and due process protections, it can be difficult to imagine that they would be interested in classifying homeschool as a fundamental right. Further, it would likely be difficult for the average American family to argue their right to homeschool under First Amendment religious freedoms as was accomplished by Amish parents in Wisconsin v. Yoder;³³ this case succeeded because the Court found that contemporary school conflicted with the “fundamental mode of life mandated by the Amish religion,” which would likely not be the case for most modern American faiths that live a life integrated with contemporary society.³⁴

In deeming other rights to be fundamental, the Court has asked whether they are incidental in the existence of libertyand deeply rooted in the nation’s history and tradition, as established in Washington v. Glucksberg.³⁵ The approaches of other free nations to homeschooling are a somewhat mixed bag, but many modern nations heavily regulate the practice or outlaw it entirely.³⁶ Thus, finding that the right to homeschool is “implicit in the concept of ordered liberty” according to the practices of other democratic nations may prove to be difficult. It seems similarly unlikely that the Court would find the right to homeschool is deeply rooted in the nation’s history and tradition, at least according to recent Supreme Court trends. Although parents have historically directed the education of their children prior to the establishment of schools, homeschool as an alternative to modern educational institutions did not gain traction in the United States until the 1970s, and it would not be until the 1990s that the practice was legalized in every state.³⁷ While this may seem to be a considerable amount of time for homeschooling to take root in our nation’s history and tradition, the Supreme Court very recently found that the right to abortion – one that was explicitly recognized in the 1970s, but that has been practiced throughout all of history since at least 1550 BCE – did not qualify.³⁸ In following with this decision, it is difficult to imagine that homeschooling would.

In the 21^st century, the right to homeschool has not been frequently challenged in the courts – however, that may change as more states move away from total homeschooling freedom. Although the Supreme Court has recognized a fundamental right for parents to direct their child’s education in several cases,³⁹ and that states cannot force parents to send their children to public school,⁴⁰ they have not explicitly stated that parents have a right to homeschool their children, much less do so without government oversight or regulation. In fact, in the famous case of Pierce v. Society of Sisters, where the Supreme Court held that states cannot force children to attend public schools as opposed to private schools, the Court did not challenge the power of states to reasonably regulate, inspect, and examine schools, teachers, and students, to require all children to attend some form of school, or to have requirements for teacher qualifications and subjects to be taught.⁴¹ Pertinent to current events involving the Ohio couple that taught their children Nazi ideology, the Court also noted in this case that states continue to enjoy the power to require that “nothing be taught which is manifestly inimical to the public welfare” in a child’s education.⁴² With this being a recognized power of the states, it would likely be difficult for a challenge against reasonable regulations and oversight into homeschooling to be successful at a federal level.

Additionally, Professor Kimberly Yuracko has asserted that states have a duty to ensure that children have equal access to a satisfactory education.⁴³ This duty, however, has not been fully fleshed out a judicial level, and is typically best evidenced by state constitutions themselves, with twenty-two states considering education to be a fundamental right.⁴⁴ Their own constitutional protections, then, may be what requires states to maintain oversight over homeschooling. Further, Professor Yuracko contends that states may be constitutionally obligated to protect the equality of children who are given different educations due to their respective genders under homeschooling programs on a federal level under the Equal Protection Clause.⁴⁵ These federal Constitution considerations are particularly interesting as they have not yet been tested in a judicial setting.

IV. Conclusion

There are many interests to be considered when states craft legislation and regulations on the practice of homeschooling, but parents and state governments alike maintain the most key interests in the welfare and education of children. An attempt to challenge reasonable restrictions on homeschooling imposed by state governments in the courts would likely be met with difficulties stemming from both legal and policy implications, which appear to support at least minimal government regulation into homeschooling. Further, there may be some constitutional considerations that could even mandate that states maintain a certain level of oversight into homeschooling programs, although this viewpoint has not yet been tested in the judicial realm. Ultimately, the magnitude of the government’s interest in ensuring that children are educated and accounted for supports the assertion that states must establish at least minimal oversight requirements upon homeschooling programs within their borders.

Cover Photo by Element5Digital on Unsplash

Kate Brewer

Kate Brewer is local to the Cincinnati area but received her BA in Political Science from the University of Tennessee. She is now a 2L at the University of Cincinnati College of Law. In addition to Law Review, Kate is an Article Editor for the Human Rights Quarterly and the External Affairs Coordinator for the International Law Society. Kate also enjoys spending time with her cats and studying Russian

References

1
Peter Jamison et al., Home Schooling’s Rise From Fringe to Fastest-Growing Form of Education, Wash. Post (Oct. 31, 2023, 7:00 AM), [https://perma.cc/4A9E-7MHL].
2
U.S. Const. amend. X, § 2.
3
There are several cases where the Supreme Court has touched on rights related to education yet refrained from declaring education to be a fundamental right. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973); Amback v. Norwick, 441 U.S. 68 (1979); Plyler v. Doe, 457 U.S. 202 (1982).
4
Meyer v. Nebraska, 262 U.S. 390 (1923); Farrington v. Tokushige, 273 U.S. 284 (1927); Pierce v. Soc’y of Sisters, 286 U.S. 510 (1925).
5
Id.
6
Wisconsin v. Yoder, 406 U.S. 205 (1972).
7
Prince v. Massachusetts, 321 U.S. 158 (1944).
8
See generally Brown v. Bd. of Educ., 347 U.S. 483 (1954); Robinson v. Cahill, 62 N.J. 473 (1973); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973); Rose v. Council for Better Educ., 790 S.W.2d 186 (1989); Prince v. Massachusetts, 321 U.S. 158 (1944); McCleary v. State of Washington, 173 Wn.2d 477 (2012).
9
See generally Brown v. Bd. of Educ., 347 U.S. 483 (1954); Individuals with Disabilities Education Act, 20 U.S.C. § 1400-1482 (2004); McCleary v. State of Washington, 173 Wn.2d 477 (2012); N.J. Const. art. VIII, § 4; N.Y. Const. art. XI, § 1; M.I. Const. art. VIII, § 1.
10
24 Pa. Stat. § 13-1327.1 (2022); N.Y. Educ. Law § 3204 (2022).
11
The state of Oklahoma, for example, has no statutes requiring these conditions be met by homeschooling parents – only that homeschooling instruction must consist of a certain number of days within the year according to Okla. Stat. tit. 70, § 1-109 (West). See also Alaska Stat. § 14.30.010 (West)
12
Idaho Code § 33-202 (2009).
13
8 N.Y. Educ. Law § 100.10 (2015); 22 Pa. Stat. § 13-1327.1 (2022).
14
Ohio Admin. Code 3301-34 (1989).
15
Ohio Admin. Code 3301-34 (1999), (2004); Ohio Rev. Code 3321.04(A)(2) (2013); Ohio Rev. Code 3321.04(A)(1) (2013).
16
H.B. 33, 135^th Gen. Assemb., Reg. Sess. (Ohio 2023), Ohio Rev. Code § 3321.042 (2023).
17
People v. DeJonge, 442 Mich. 266 (1993); Mich. Comp. Laws Serv. § 388.553 (1921).
18
DeJonge, 442 Mich. 266.
19
Home Schooling in Michigan, Mich. Dept. of Ed. (2017), https://www.michigan.gov/-/media/Project/Websites/mde/Year/2017/08/01/home_schools.pdf?rev=f7fb166fd0c146e7b80da3e6c2ee803e.
20
Peter Jamison, In Michigan, A New Push for Greater Home-Schooling Rules, Oversight,Wash. Post (Dec. 6, 2023), [https://perma.cc/2NXD-HVT5].
21
Jamison, supra note 1.
22
Id.
23
Peter Jamison & Laura Meckler, Home-Schoolers Dismantled State Oversight. Now They Fear Pushback,Wash. Post (Dec. 28, 2023), [https://perma.cc/LS34-ARE5].
24
Peter Jamison, What Home Schooling Hides: A Boy Tortured and Starved by His Stepmom, Wash. Post (Dec. 2, 2023), [https://perma.cc/7C2R-VMBK]; Adam Gabbatt, Outrage Over Alleged Nazi Homeschooling Group in Ohio, Guardian (Feb. 1, 2023),[https://perma.cc/P4MQ-ZHXV].
25
Liz Mineo, A Warning on Homeschooling, Harvard Gazette (May 15, 2020), [https://perma.cc/728F-NXMU]; Home Schooling is Surging. States Have to Step Up Their Oversight, Wash. Post (Jan. 6, 2024), [https://perma.cc/6HLP-LSFH].
26
Brian D. Ray, Homeschool Abuse and Neglect Research: How Many Homeschooled Kids Are Abused?, Nat’l Home Educ. Rsch. Inst. (Mar. 11, 2024), [https://perma.cc/6V3T-FWVW].
27
Concealing Abuse by Homeschooling, Coal. for Responsible Home Educ., [https://perma.cc/29QS-MQKV].
28
Kati Mapa, Child Maltreatment 2021 Report, Child Welfare League of Am., [https://perma.cc/C38E-9ZEN].
29
The Importance of Socialization in Early Childhood, Martin-Pitt P’ship for Children, [https://perma.cc/7XRZ-9X8F].
30
Lindsey d. Koehler et. al.,Socialization Skills in Home Schooled Children Versus Conventionally Schooled Children, Study for U. of Wisc. La Crosse , 469 (2002), https://www.uwlax.edu/globalassets/offices-services/urc/jur-online/pdf/2002/koehler_langness_pietig_stoffel_and_wyttenbach.pdf.
31
See Lochner v. New York, 198 U.S. 45 (1905); West Coast Hotel, 300 U.S. 379 (1937); Roe v. Wade, 410 U.S. 113 (1973); Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
32
Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).
33
Wisconsin v. Yoder, 402 U.S. 994 (1971).
34
Id.
35
Washington v. Glucksberg, 521 U.S. 702 (1997).
36
Homeschooling in Your Country,Home Sch.Legal Def. Assoc., [https://perma.cc/JQ6U-59ET].
37
Katie Gilbert, How Homeschooling Evolved from Subversive to Mainstream, JSTOR Daily (Sept. 8, 2021), [https://perma.cc/4EFT-F8VT].
38
Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022); Malcolm Potts & Martha Campbell, History of Contraception, Global Women’s Med. (May 2009), [https://perma.cc/N795-ZZXR].
39
See Meyer v. Nebraska, 262 U.S. 390 (1923); Farrington v. Tokushige, 273 U.S. 284 (1927); Pierce v. Soc’y of Sisters, 286 U.S. 510 (1925).
40
Pierce, 286 U.S. 510.
41
Id.
42
Id. at 534.
43
Kimberly Yuracko, Education off the Grid: Constitutional Constrains on Homeschooling, 96 Cal. L. Rev. 123 (2008).
44
See N.J. Const. art. VIII, § 4; N.Y. Const. art. XI, § 1; M.I. Const. art. VIII, § 1.
45
Yuracko, supra note 43.

I. Introduction

II. Background

III. Discussion

IV. Conclusion

Author

References

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