Unsnarling Charles

Understanding Massachusetts homeschooling law is not a straightforward undertaking. Yet it is an important one. Once you understand your rights, you can stand up for them. Homeschooling in Massachusetts is a purely local undertaking, with each district performing oversight functions. (The Massachusetts Department of Elementary and Secondary 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.) The following is our own interpretation of Charles's intent regarding issues such as prior approval, written approval, evaluation, mid-year changes, and testing, and does not constitute legal advice; it is for informational purposes only.

PRIOR APPROVAL

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, 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 education plan and evaluation method 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.

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, 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. 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. It is important to remember that once a 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 has made it to court that we know of dating from the late 1970s (Perchemlides, Charles, Searles, Brunelle, Ivan), the child/ren have never been ordered to attend school during the court proceedings.

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. Also, based on longtime feedback from Massachusetts homeschoolers, and judging from AHEM's research, the vast majority of homeschoolers never have a dispute with the school.

If a superintendent and/or school committee disapproves a plan, the school has a few options. In the vast majority of cases, when a school takes issue with an aspect of the education 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 not 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 Be Your Own Best Advocate).

WRITTEN APPROVAL

While many school districts supply homeschoolers with written letters of approval, not all do so. Whether to request written approval is a personal choice. Some parents may feel more comfortable with an approval letter and choose to contact the school to ask for one. There is nothing in the law that requires parents to do so. Once the parents have submitted what Charles requires, they have fulfilled their responsibility. 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. One thing parents can do to have documentation that their plan has been received is to request a receipt upon delivery of their home education plans, whether through the mail or in person.

EVALUATION AND APPROVAL

Depending on the details of the education plan, the family may need to submit a form of evaluation. Evaluation methods are agreed upon during approval, and are part of the approval process. In rare cases, the school may take issue with the family upon receipt of the agreed-upon form of evaluation. If the school deems that the child is not receiving instruction that it is equal to what they would provide, the school may consider that as a factor in approving or disapproving future plans. In such cases, 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 instruction they are providing is equal to the school's, it is the school's burden to prove that it does not. If the school calls the approval of the plan into question, the school has the right to initiate legal proceedings. But as with prior approval, the school will assume the burden of proof. In practice, this just hasn't happened.

MID-YEAR CHANGES

We all know that one of the great benefits of homeschooling is flexibility. 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.

TESTING

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 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 an unequivocal statement about testing. 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 our work on behalf of Massachusetts homeschoolers, 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 court decisions pertinent to homeschooling in Massachusetts. In the process, remember that the collective experience of Massachusetts homeschoolers, as well as AHEM's research, show that the vast majority do not have problems homeschooling in our state.