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IHBG-E:  HOME SCHOOLING

 

In March 1987, the Massachusetts Supreme Judicial Court decided the case entitled Care and Protection of Charles, 399 Mass. 324 (1987).  The decision sets forth the legal standards for approval of home education programs for children of compulsory school age in Massachusetts.  This advisory opinion, prepared by Rhoda E. Schneider, General Counsel of the Department of Education, is intended to inform public school officials and other interested parties of the standards set forth in the decision.  It supersedes the department's January 4, 1980 Advisory Opinion on Home Education, although the approval guidelines established by the court are very similar to those in the 1980 advisory.

 

There are four main components to the decision, which may be summarized as follows:

 

I.          The School Committee may enforce the compulsory school attendance law through a care and protection proceeding.

 

The court held that the Canton School Committee had authority to file a petition for care and protection (pursuant to General Laws Chapter 119, Section 24) with respect to three school-age children whose parents had not enrolled them in public school or an approved private school, and who had not been granted permission to educate them at home. The court noted that the compulsory school attendance law (General Laws Chapter 76, Section I) states that "the School Committee of each town shall provide for and enforce the school attendance of all children (ages 6-16) actually residing therein in accordance here-with," and concluded that one appropriate way for the School Committee to do so is a petition to find the children in need of care and protection with respect to their educational care.

 

II.         The compulsory school attendance law provides adequate standards to determine a child's need for educational care and to withstand constitutional challenge.

 

The court held that General Laws Chapter 76, Section 1, the compulsory school attendance law, provides the standards by which a judge may determine that a child is in need of educational care, and is neither void for vagueness nor an unlawful delegation of legislative authority. In pertinent part, the statute provides:

 

Every child between the minimum and maximum ages established for school attendance by the board of education (6-16) . . . shall . . . attend a public day school . . . or some other day school approved by the School Committee . . . unless the child attends school in another town . . . but such attendance shall not be required of a child . . who is being otherwise instructed in a manner approved in advance by the Superintendent or the School Committee. (Emphasis added.)

 

The court concluded that this grant of authority to the Superintendent or School Committee to approve an alternative manner of instruction for a child (specifically, home instruction) is not unconstitutionally vague, because the school officials may draw approval criteria from three sources. First, the legislatures established a general framework for public education, by mandating the subjects that must be taught in public       schools and qualifications public school teachers must meet.  (See General Laws Chapter 71, Sections 1, 2, 3 and 38G.)  Second, the court stated that proposed home education programs are subject to the same standard of approval as private schools under General Laws Chapter 76, Section 1:

 

“For the purposes of this section, school committees shall approve a private school when satisfied that the instruction in all the studies required by law equals in thoroughness and efficiency, and in the progress made therein, that in the public schools in the same town; but shall not withhold such approval on account of religious teaching…. “

 

Third, the court set forth specific procedures and approval guidelines for home education programs, which are discussed in section IV of this advisory. In light of all these factors, the court concluded that the law provides reasonable standards for reviewing and approving home education programs, and therefore meets constitutional requirements.

 

III.       Parents have a basic right to direct their children's education, but that right is subject to reasonable regulation to promote the state's substantial interest in the education of its citizens.

 

Several United States Supreme Court decisions, cited by the court, have affirmed substantial state interest in the education of its citizenry, with which parents' basic right to direct children's education must be reconciled. The court agreed with the parents: "the state interest in this regard lies in ensuring that the children residing within the state receive an education, not that the educational process be dictated in its minutest detail."  However, the court concluded that the approval process required under General Laws Chapter 76, Section 1 "is necessary to promote effectively the state's substantial interest," and that the School Committee may use that statutory approval process to impose on home education programs "certain reasonable educational requirements similar to those required for public and private schools."

 

IV.    Guidelines for approval of home education plans.

 

Having concluded that the approval process under General Laws Chapter 76, Section 1 is constitutionally permissible the court set forth guidelines for parents and school officials to follow in considering home education plans. They may be summarized as follows:

 

A.        Procedures.

 

1.         Parents must obtain approval prior to removing the children from the public school and beginning the home education program.

 

2.         The Superintendent or School Committee must provide the parents with an opportunity to explain their proposed plan and present witnesses on their behalf. A hearing during a School Committee meeting is sufficient to meet this requirement.

 

3.         In obtaining approval from the Superintendent or School Committee, the parents must demonstrate that the home education proposal meets the requirements of General Laws Chapter 76, Section 1, in that the instruction will equal "in thoroughness and efficiency, and in the progress made therein, that in the public schools in the same town."

  

4.         If the home education plan is rejected, the Superintendent or School Committee must detail the reasons for the decision, and allow the parents to revise their proposal to remedy its inadequacies.  If they begin the home education program without the necessary approval, the School Committee may initiate a truancy proceeding or a care and protection petition, in which it would have to show that the instruction in the home does not meet the statutory standard for thoroughness, efficiency and educational progress.

 

B.         Approval factors.

 

The court listed the following factors that may be considered by the Superintendent or School Committee in deciding whether or not to approve a home education proposal:

 

1.         The proposed curriculum and the number of hours of instruction in each of the proposed subjects.

 

General Laws Chapter 71, Section 1, 2 and 3 list the subjects of instruction that must be taught in the public schools.  Section 1 allows the School Committee also to require such other subjects, as it may deem expedient. In addition, the Superintendent or School Committee "may properly consider the length of the proposed home school year and the hours of instruction in each subject," noting that state law requires public schools to operate for a minimum of 180 days.

 

2.         The competency of the parents to teach the children

 

General Laws Chapter 71, Section 1 provides that teachers shall be "of competent ability and good morals."  The court noted that parents providing education at home need not be certified, nor must they have college or advanced academic degrees.  However, "the Superintendent or School Committee may properly inquire as to the academic credentials or other qualifications of the parent or parents who will be instructing the children." 

3.         The textbooks, workbooks and other instructional aids to be used by the children and the lesson plans and teaching manuals to be used by the parents.

 

The Superintendent or School Committee need access to this material "to determine the type of subjects to be taught and the grade level of instruction for comparison purposes with the curriculum of the public schools," but they "may not use this access to dictate the manner in which the subjects will be taught."

 

4.         Periodic standardized testing of the children to ensure educational progress and the attainment of minimum standards.

 

 The Superintendent or School Committee may properly require such testing, and in consultation with the parents may decide where the testing will occur and the type of testing instrument to be used.  The court noted that "where practical, a neutral party should administer the test" and that the school authorities and parents may agree to other means of measuring the children's progress, such as periodic progress reports or dated work samples.  In addition, it suggested that on-site visits by public school representatives may be included, although "with appropriate testing procedures or progress reports, there may be no need for periodic on-site visits or observations of the learning environment by school authority personnel."
 

V.        Conclusion.

 

The Supreme Judicial Court's decision provides both a legal framework and useful guidance for public school officials and parents with respect to proposals to educate a   school-age child at home.  We recommend that Superintendents and School Committees review their procedures and approval criteria for home education plans, to assure that they are consistent with the court's decision. As long as the school officials making the decision to approve or disapprove a home education program do so reasonably and in good faith, using the standards and procedures discussed above, it is likely that a court will uphold their educational judgments.

 

 

SOURCE: MASC

 

LEGAL REFS.:                        M.G.L. 69:1D; 76:1

 

Adopted on:     April 24, 2008

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