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Legal Access to Public School Classes

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Posted 1/23/15
Antony Kolenc

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Legal Access to Public School Classes

Antony Kolenc

Our five homeschooled children have developed wonderful creative interests in areas such as music, dance, and drama. My wife and I have sought to foster those interests through ballet classes, theater productions, piano lessons, and the like. When we lived in Colorado Springs, we were aided by Colorado’s homeschool-friendly policies. Under state law, our children had legal access to the local public schools for extracurricular classes, which helped us provide for our family’s unique educational needs. For instance, my daughter took guitar lessons through a class offered at the local high school, while my son enrolled in the local middle school band. However, not every state or school district offers these options for homeschooling families.

A Growing Trend

Over the years, state legislatures have begun to recognize that, as a matter of fairness, homeschooled students should have access to some public school resources. After all, homeschoolers pay federal, state, and local taxes that help fund those public schools. Also, home-educated students can bring diversity to public school activities while benefiting from particular classroom-rich experiences. For instance, some families find it difficult to provide their children the expensive resources that are sometimes available in public school science labs, which often use specialized equipment and materials to perform complex experiments.

This is an area of controversy within the homeschool community, with some parents rejecting any efforts to integrate their children into state-run schools. But for those families in favor of such opportunities, increasing numbers of states have adopted “equal access” policies that give homeschoolers the ability to supplement their curricula in the public schools. States have different philosophies in this area, which can be illustrated by focusing on three general approaches.

Three Approaches

The most expansive approach in this area allows homeschooled students to participate in public school classes and activities, whether they are academic, extracurricular, or athletic in nature. Idaho has adopted this policy of total participation since at least 1995, allowing children educated at home to “dual enroll” in their local public schools. Homeschoolers “may enter into any program in the public school available to other students subject to compliance with the eligibility requirements herein and the same responsibilities and standards of behavior and performance that apply to any student’s participation in the activity . . . .”1 This broad philosophy offers home-educated students the highest levels of flexibility and opportunity and provides a model worthy of imitation in other states.

A more limited approach permits homeschooled students to take some academic courses within the public school curriculum without necessarily setting a statewide policy for other activities, such as interscholastic sports. Wisconsin has taken this view since 1998—but only at the high school level—with a state law requiring high school districts to “allow a pupil enrolled in a . . . home-based educational program, who has met the standards for admission to high school . . . to take up to 2 courses during each school semester . . . if the school board determines that there is sufficient space in the classroom.”2 These are academic courses, by and large, offered as part of the high school’s regular curriculum.

A third approach takes the flip side of the second philosophy. It allows homeschooled students to participate in extracurricular and sports activities while not necessarily opening the public school’s doors to academic courses. For instance, Pennsylvania has required its school districts to allow home-educated students to participate in many extracurricular activities, “including, but not limited to, clubs, musical ensembles, athletics and theatrical productions,” subject to certain reasonable rules.3 Academic courses are not included in this policy, and some students have had to fight for the right to compete in co-curricular activities such as spelling bees. With fifty states and countless individual school districts, one can find some variety of these three approaches all across the nation.

Suing for Access?

What options are available for parents living in jurisdictions that have simply refused to open their public schools to homeschoolers? Many states have not yet passed an “equal access” law.4 Due to the mixed feelings about this controversial issue within the homeschool community itself, lobbying groups have not pursued it to the same extent as other policies. In jurisdictions without a formal “equal access” policy, there may or may not be discretion at the local school board to allow homeschooled students to participate in academic or extracurricular activities. Additionally, statewide athletics associations may have their own rules governing homeschool participation in interscholastic sports.5

In those states where full “equal access” is not available, some families may be tempted to resort to the courts in an effort to force school districts to grant access. This approach has been tried in the past, with no real success. Courts in several states have rejected lawsuits from parents who have argued that “unequal access” amounted to either illegal discrimination against homeschoolers or a punishment against families who choose to exercise their religious freedom by teaching their children at home. While these arguments have a basis in law, decisions about limited public school resources often involve complex considerations, giving states sufficient cover to avoid these legal attacks. For that reason, the more successful lawsuits (or threats of legal action) will be based on existing “equal access” statutes that are being ignored or misinterpreted by local school officials.

Instead of filing a lawsuit, homeschooling families who wish to provide their children with access to public school opportunities should work through their local schools and school boards. In some cases, school officials who are petitioned for equal access will give parents a warm reception, and where such requests are denied, administrative appeals may be possible. Parents should also get involved in efforts to petition their state representatives and legislatures to pass formal “equal access” laws at the state level.

Finally, parents should always remember to tap the opportunities and resources available through local homeschool groups and co-ops. It may be that everything a family needs is already available in the community without turning to the state-run school system.

Endnotes:

1. Idaho Code § 33-203(2).

2. Wisconsin Statutes § 118.145(4).

3. Pennsylvania 24 Pennsylvania Statutes Annotated § 13-1327.1(f.1.)(1).

4. See Home School Legal Defense Association (HSLDA), State Laws Concerning Participation of Homeschool Students in Public School Activities, October 2012 (available at www.hslda.org/docs/nche/Issues/E/Equal_Access.pdf) (compiling a summary of equal access statutes in all 50 states).

5. See Antony B. Kolenc, Legally Speaking, “Tebow Bills” and Access to Public School Sports,” The Old Schoolhouse Magazine, June 2012, at 124–25 (further discussing the move to open public school sports to homeschooled athletes).

Antony B. Kolenc (J.D., University of Florida College of Law) is an author, speaker, and law professor at Florida Coastal School of Law. He is also a retired U.S. Air Force officer. He and his wife have homeschooled their five children for over a decade. Tony is author of The Chronicles of Xan historical fiction trilogy, as well as many legal articles. Learn more about him at www.antonykolenc.com. If you have a law-related homeschooling question that you would like to see Tony address in a future column, please email TL@TheHome schoolMagazine.com.

Copyright 2013, used with permission. All rights reserved by author. Originally appeared in the February 2013 issue of The Old Schoolhouse® Magazine, the family education magazine. Read the magazine free at www.TOSMagazine.com or read it on the go and download the free apps at www.TOSApps.com to read the magazine on your mobile devices.