Enrollment in some school districts has decreased as more parents with health-related concerns for their families are choosing to home-school their kids in light of the current COVID-19 pandemic. Some home-school organizations are using the pandemic to mobilize parents, while other education-​related organizations are highlighting how essential teachers are at this moment. Although the numbers are difficult to track, before COVID-19, the home-schooling population was estimated to be about 2.5 million students—or 3–4 percent of all American children—and these numbers were predicted to grow during the pandemic. While the recent increased interest in home schooling may be temporary, there are a few legal issues to be considered.

Home-School Laws Vary by State

Although the U.S. Supreme Court has acknowledged the rights of parents to direct the upbringing of their children, states can still impose reasonable home-school regulations. Across states, home schooling requirements can vary. We highlight some of these differences:

  • Forty states require parents to notify their local school district or department of education of their intent to home-school; six states require a one-time notification of home schooling once it commences.
  • Thirteen states require home instructors to have qualifications—almost always requiring a high school diploma or equivalency.
  • Twenty-nine states require instruction in certain subjects; most of these subjects are core subjects like English, mathematics, and social studies.
  • Twenty-three states have attendance requirements for home-schooled students; generally, the time frames resemble what public school students experience.
  • Fewer than half the states require an assessment of home-schooled students; 12 states require standardized testing.
  • More than half of states allow home-schooled students to participate in cocurricular or extracurricular activities during or after school and attend local public school classes part-time.

Indeed, there is a hodge-podge of different state laws, which creates a lack of consistency across the country when it comes to home schooling. The Home School Legal Defense Association (HSLDA) provides parents with various resources to help them understand the laws in their respective states pertaining to home schooling. HSLDA also advocates to limit the regulations that are put on parents’ rights to home-school their children.

Legal Issues Related to Home-School Pods

While some parents have opted for home schooling during the pandemic, learning pods have emerged. Within home-school pods, parents (or sometimes a hired tutor) teach a small group of students from home. Many of these pods emerged due to health concerns—it is easier to social distance and be outside during the school day with a smaller group. Some observers argue that these pods create new layers of privilege or might conflict with state law. Specifically, some states’ home-school laws do not allow parents to hire someone else to teach their children. There might also be implications for college admissions, as accreditation standards can vary.

Similarly, parents who have abruptly decided to home-school during this pandemic may not understand rules around notification. Court decisions that occurred before COVID-19 may provide some issues to consider. In one illustrative case, a mother challenged a school district policy requiring that parents report their home-school education plans and receive superintendent approval before they are allowed to home-school. Although the mother in this case submitted a plan, it had not been approved before she began to home-school. As a result, school officials reported her to the Department of Child Services (DCS) because her child was not attending school. The judge found that while it was permissible for the school district to require an education plan, it also acknowledged the parent’s effort to communicate with the school about the home-school request. Ultimately, what caused this lawsuit was the poor communication and slow processing of district policies—an important lesson for school leaders.

Legal Issues Related to Special Education

Even though IDEA is silent about special education services for home-schooled students, school officials must still locate, identify, and evaluate all children with disabilities until age 21. State laws also address many issues related to special education services for home-schooled students. While some states treat children who are home-schooled more like students attending private schools (with fewer services provided), other states have more robust requirements (e.g., traditional IEPs). Parents might also be able to opt in to certain academic programs and extracurricular activities in the school district even though their child is home-schooled. Parents who choose to home-school during the pandemic might not be aware of how special education services may differ.

Legal Issues Related to Abuse and Neglect

During COVID-19, reports of child abuse have decreased, which some observers speculate is related to kids not attending school. Teachers are mandatory reporters, and when kids are not in class, teachers cannot report suspected abuse and neglect. Some studies have also shown an increase in domestic violence since the COVID-19 pandemic began. Harvard Law Professor Elizabeth Bartholet contends that child abuse and neglect are often present in a subset of home-schooling families because some parents choose to provide home instruction to escape attention from DCS. Related to the discussion above about state law, Bartholet notes that no state does anything significant to identify students who are home-schooled and at high risk for mistreatment.

Considerations for School Leaders

  1. Each state differs in the type of oversight it provides home-school education. School leaders should make sure they are knowledgeable about the home-school requirements within the state, paying close attention to notification requirements and rules that might impact students using learning pods. Upon notification or request for home-school information, school leaders should promptly inform parents of the home-school requirements, as parents may be ineligible to provide home schooling in highly regulated states.
  2. School leaders should know their obligations regarding special education services that must be provided to home-schooled students. Leaders should be aware of how state law addresses the matter (see https://tinyurl.com/y7eyw3al).
  3. School leaders and staff may be the only mandated reporters home-schooled students interact with if they participate in school events. School officials should keep a close eye to look for warning signs of abuse or neglect in this special school population. School leaders that are considering reporting neglect because of failure to attend school should take a careful look at a student’s record to make sure the parents have not completed the home-school requirements prior to making any reports to the state agency.

Garrett Wilson is the lead teacher at the Lafayette Excel Center and is in the EdD program in Educational Leadership at Indiana University in Lafayette, IN. Tiffany Puckett is a professor at Northern Illinois University in DeKalb, IN, where she teaches education law and policy. Suzanne E. Eckes is a professor at Indiana University in Bloomington, IN. She is a co-author of Principals Avoiding Lawsuits and a past president of the Education Law Association.

References

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Bartholet, E. (2020). Homeschooling: Parent rights absolutism vs. child rights to education &  protection. Arizona Law Review, 62(1), 1-80.

Boserup, B., McKenney, M., & Elkbuli, A. (2020). Alarming trends in US domestic violence during the COVID-19 pandemic. The American Journal of Emergency Medicine. Retrieved from www.ajemjournal.com/article/S0735-6757(20)30307-7/fulltext.

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Home School Legal Defense Association (2020). Explore Homeschooling. Retrieved from https://hslda.org/get-started.

Kofman, Y. B., & Garfin, D. R. (2020). Home is not always a haven: The domestic violence crisis amid the COVID-19 pandemic. Psychological Trauma: Theory, Research, Practice, and Policy. Retrieved from https://psycnet.apa.org/fulltext/2020-37317-001.html.

Kurtz, H. (2020, Sept. 1). Teacher morale and student enrollment declining under COVID-19, survey shows. Education Week. Retrieved from www.edweek.org/ew/articles/2020/09/01/teacher-morale-and-student-enrollment-declining-under.html.

Petrowski, N. et al. (2020). Violence against children during COVID-19 Assessing and understanding change in use of helplines. Child Abuse & Neglect. Retrieved from  www.sciencedirect.com/science/article/pii/S0145213420304129#bib0015.

Wisconsin v. Yoder, 406 U.S. 205 (1972).

Wixom, M. (2015). State homeschool policies: A patchwork of provisions. Education Commission of the States. Retrieved from www.ecs.org/state-homeschool-policies-a-patchwork-of-provisions.