DOE Draft Advisory Gives Us Chills
Did you know that the Massachusetts Department of Education has no authority to approve or disapprove homeschooling plans, and in fact plays no role whatsoever in the implementation of homeschooling regulation in our state? This is a pretty important concept for homeschoolers to understand, especially since the DOE is currently circulating less than optimal information about homeschooling in their Draft Home Education Advisory.

For years, the DOE circulated an advisory on homeschooling, created in response to Care and Protection of Charles (1987). This 1987 DOE document was revised in 2000. Despite the fact that it is titled a "draft" advisory, and in fact is still officially in the "draft" stage, it is being circulated to superintendents who request information on homeschooling from the DOE. Given that your superintendent may well have read it, we recommend that you acquaint yourself with the text.

Our strongest grievance with the DOE draft advisory is the potentially antagonistic relationship it sets up between school officials and homeschoolers. Understanding Massachusetts homeschooling law is not a straightforward undertaking. Yet it is an important one. Charles does not spell out homeschool regulation in definitive, black and white terms. While the DOE chooses to interpret the court's decision in ways that give schools greater power, the informed homeschooler can see how those interpretations are not reflective of the way homeschooling actually works in Massachusetts. Nor do they square with the history of homeschooling court cases here since the late 20th-century. The literal, hard line approach the DOE takes in its advisory can only create unnecessary friction between school officials and homeschoolers, and may result in needless conflict and suffering for all involved. Since the DOE has presented a document which is needlessly intimidating, it is important for homeschoolers to be fully informed, and assume the responsibility of educating their superintendents and school committees if it becomes necessary. Once you understand your rights, you can stand up for them. The following is our own interpretation, and does not constitute legal advice; it is for informational purposes only.

"Express" and "Prior" approval
The DOE states that "Delay or lack of response by a school district does not constitute implied consent to a home education program; home educating families must obtain express approval before they commence homeschooling." Further, it tells school officials, "If a parent fails to enroll the child in school or withdraws the child from school to begin home education without first obtaining the necessary approval, it is the school district's responsibility to act promptly to enforce the compulsory school attendance law." First of all, we can find no reference in any law to the phrase "express approval"--if you find one, please let us know! While the statutory law does require prior approval, Charles's interpretation of this is vague.

The court in Charles found against the family by determining that homeschool regulation is not unconstitutional in Massachusetts. The basis for this determination comes from the Massachusetts Constitution's statement that the state should "cherish" the education of its citizenry. In the court's estimation, this means that the state has an interest in the education of its citizenry that must be upheld. At the same time, the court acknowledged the constitutionally protected parental right to homeschool. The Charles decision was written in an attempt to balance these two interests: the state's interest in the education of its citizenry and the parental right to homeschool.

Prior approval of an educational plan and evaluation methods is the device by which Charles assures the state's interest. However, the court recognized that too much authority given to the school could infringe on parental rights. It says this directly: "…we caution the superintendent or the school committee that the approval of a homeschool proposal must not be conditioned on requirements that are not essential to the State interest…" No superintendent or school committee has the authority to give or deny a family permission to homeschool. The only authority they retain is that of approving or disapproving the plan, and the only agenda inherent in that authority is to ensure the child is being educated.

If a superintendent and/or school committee disapproves the plan, the school has a few options. If a family has withdrawn their child from school and submitted an educational plan, the best way for the school to enforce the compulsory attendance law is by expediting approval. Unfortunately, the DOE Advisory does not convey this as the preferable option. It doesn't favor one option over another, but because of the more extensive explanation it offers for bringing charges against the family, that option receives more weight in the advisory. The fact is, the school does retain the right to initiate court proceedings against a family homeschooling without approval for their plan, but in doing so it must assume the burden of proving that the plan does not equal their curriculum in thoroughness and efficiency. No school has done this since Charles, and only a handful of families complying with Charles have ever reached the courtroom level in a dispute with the schools. In each of these few cases, the family has won. In practice, expediting approval has been the norm in Massachusetts. In the vast majority of cases, when a school takes issue with an aspect of the educational plan, they will contact the family and offer the family the opportunity to explain or remedy the plan, the avenue of response outlined in Charles. In most such cases, legal intervention is never necessary. Homeschoolers finding themselves in a situation like this can stand their ground and still work successfully with the school system without the aid of a lawyer (see "Homeschoolers Stand their Ground").

While it is true that the compulsory attendance statute (Mass G.L. section 76, chapter 1) requires that approval be granted in advance of homeschooling, it is important to remember that once the family has submitted a plan that satisfies the guidelines outlined in Charles, that family is making a good faith effort to comply with the law, and that counts. In every Massachusetts homeschooling dispute that we know of dating from the late 1970s (Perchemlides, Charles, Searles, Brunelle) the child/ren have never been ordered to attend school during the approval process, despite the DOE's insistence that this be the case. In practice, it has simply not worked that way. Still, we are left with the somewhat contradictory message of the statute's absolute requirement of prior approval, and the statement in Charles that "…if the parents commence the education of their children at home in the face of the school committee's refusal to approve the parents' homeschool proposal (our emphasis), the burden of proof…shifts to the school committee to show that the instruction outlined in the homeschool proposal fails…" This is the most direct reference in Charles to what should happen if a family commences homeschooling without approval, and it directly states that in such a case, the burden of proof shifts to the school. It has been argued that the burden shifting protects the parents' interest by creating "a presumption of adequacy of parental proposals for homeschooling." (Ira C. Lupu, Boston University Law Review, Vol. 67: 971).

Families who choose to homeschool, whether it involves not enrolling a child in school in the first place, or withdrawing a child from one, need to decide for themselves whether to commence homeschooling once the plan is submitted, taking into consideration what is best for their child. Important factors to remember are that while the school has no authority to deny the right to homeschool, they do have authority to take legal action. However, no child has ever been ordered back to school during the approval process, and no school has ever assumed the burden of proof presented in Charles and won. In fact, the number of times it has been attempted is miniscule. In reality, expediting approval has been the norm. Another important point is the fact that based on longtime feedback from Massachusetts homeschoolers, and judging from AHEM's preliminary research, the vast majority of homeschoolers never have a dispute with the school.

Written approval
AHEM has been unable to find any basis in law for the DOE's statement, "If no response is received from the school district within a reasonable time after home education approval is requested, parents should contact the superintendent and request a written decision on their approval request." While some parents may feel more comfortable with an approval letter and choose to contact the school to request one, there is no indication in our law that it is something parents should do. Once the parents have submitted what Charles requires, they have fulfilled their responsibility under the law. If the school disapproves the plan, they must contact the family, not the other way around. It is also true that in practice, many school districts choose not to supply approval letters. We suggest that parents request a receipt upon delivery of their home education plans, whether through the mail or in person.

Rescinding approval
The DOE also claims that "…school officials may refuse to grant or rescind home school approval if parents do not comply with the school district's periodic reporting requirements." We can find no reference in any law to the school's authority to "rescind" homeschool approval. If a family fails to submit the evaluative materials agreed upon during the approval process, the school still bears the burden of filing legal action against the family. The DOE also states that "Charles requires parents to receive homeschool approval before they remove their child(ren) from a public or approved private school. Therefore, parents whose homeschool approval is rescinded may reapply for approval only after their child(ren) are enrolled in a public or approved private school." Given that the intent of Charles is not to deny parents the right to homeschool, but recognize that right while ensuring the state's interest, it seems absurd to interpret it as saying that children must be re-enrolled in school if a dispute over evaluation arises. Enrolling and withdrawing a child from school repeatedly would clearly not be beneficial to the child. Evaluation methods are agreed upon during approval, and are part of the approval process. If the family submits the agreed-upon form of evaluation, and the school deems that the child is not receiving an education that is equal to the one they would provide, the school may consider that disapproval of the plan, in which case the school may choose to work with the family to remedy the situation (the preferred option). If the family believes they have satisfied the requirement that the education they are providing is equal to the school's, it is the school's burden to prove that it does not.

In any case, the DOE's choice to use the word "rescind" implies that it has some basis in law, which we have been unable to find. And, as we have pointed out, even if the school calls the approval of the plan into question, there is no reason for the child to be immediately re-enrolled. As with prior approval, the school must give the parents the chance to defend their position or amend their plan. In the case of an irreconcilable dispute, the school has the right to initiate legal proceedings. But as with prior approval, the school will assume the burden of proof. We know of absolutely no case in Massachusetts where the school took a family to court after approving the plan. In practice, this just hasn't happened.

Mid-year changes
We all know that one of the great benefits of homeschooling is flexibility. The DOE acknowledges that parents may modify their home education program to meet their child's needs. However, it goes on to say, "If the modification involves a significant change in the content or method of the child's educational program, such a change in plans is, in our opinion, subject to prior approval by the school district." The big phrase here is "in our opinion." At least the DOE admits that this statement is subjective. It is ludicrous to imagine that a family deciding to scrap a purchased curriculum, say, that is not working for their child, and assume a parent-created program, would have to re-enroll the child in school while seeking approval for their new approach. This seems to be what the DOE would like us to think, however. Many homeschoolers submit plans that incorporate flexibility, and those plans are approved. In those cases, the school has pre-approved the option to be flexible with content, and no such change in plans would be subject to prior approval.

Evaluation
In the advisory's section on evaluation, the DOE weighs heavily on testing, a question which is left open by the Charles decision. While the Charles decision does state that "…the superintendent or school committee may properly require periodic standardized testing…," it goes on to say that "Other means of evaluating the progress of the children may be substituted for the formal testing process…" The DOE states, "If no agreement is reached between school officials and parents on an alternative method of evaluation, school districts may require standardized testing as a condition of approval…" What are the problems with this advice? The court's main point was that evaluation itself is not unconstitutional and may be required as part of the approval process. It referenced testing specifically (that was the method the family in Charles was using), but it made a point of allowing other forms of evaluation, stressing that the method should be agreed upon by the school and the family. The court did not make the kind of unequivocal statement the DOE would like to think it did. If a dispute about testing arose between a family and school system, and compromise could not be reached, the school would have to take the family to court and prove that testing was essential to ensuring the state's interest. It is our view that until such a case goes to court (if it ever does), the question of whether testing can be required as a condition of approval cannot be answered definitively.

Clearly, the state cannot dictate the manner in which we homeschool. When various methods of education are at work, it follows that one method of evaluation for all may not be the best approach. Under Charles, parents may work with the schools to determine the method of evaluation that best fits the manner of their homeschooling. And in practice, it does work this way in Massachusetts. Most districts do not require testing, and readily accept alternative means of evaluation.

The Future
While AHEM will continue to work with other state groups to keep an eye on the advisory, and offer feedback to the DOE about its contents, ultimately the most significant and lasting protection for homeschooling rights will come from an informed, educated homeschooling population. Therefore, we urge you to read the actual advisory, as well as the court decisions pertinent to homeschooling in Massachusetts. In the process, remember that the collective experience of Massachusetts homeschoolers, as well as AHEM's preliminary research, show that the vast majority do not have problems homeschooling in our state.

Back to DOE Draft Advisory page.

The information on this website does not constitute legal advice; it is provided for informational purposes only.