Wisconsin Parents Association Newsletter #77 pp. 7-11 - August 2003

Problems Created by Federal Homeschooling Legislation

Summary: "The Homeschool Non-Discrimination Act" was recently introduced in the U. S. Congress and is being supported by the Home School Legal Defense Association (HSLDA). However, it would undermine homeschooling in several ways. Therefore, WPA strongly encourages homeschoolers to oppose this federal legislation. This article discusses general problems created by the bill and then examines problems with the six specific provisions and offers suggestions for what we can do.

Aunt Tilly calls. "You know I support your homeschooling. But I just read an article about how homeschoolers are demanding special favors from the federal government. It's really not fair for families to get to homeschool and still get everything kids in regular schools do."

From State Senator Reasonable you hear, "I've gone along with your notions about Wisconsin's homeschooling law over the years, and I know all three of your kids are doing well. But I'm worried about homeschooling kids who aren't learning anything. According to the federal bill that just passed, you homeschoolers are proud of how well your kids score on standardized tests. Senator You-Know-Who is getting a lot of pressure from the teachers union and social workers and is introducing a bill requiring you guys to take the same standardized tests that everyone else takes. Seems fair to me."

Then Oscar Keep-Em-In-Line, a local school official, sends you a letter: "According to our records, you have complied with state laws governing homeschooling. But under the new federal law, you are now required to submit your curriculum to my office for review and approval."

What's going on? These are examples of what would be likely to happen over time if the U. S. Congress passes H R 2732 and the companion Senate bill S. 1562. (For the text of these bills, go to http://thomas.loc.gov/ .) The Home School Legal Defense Association (HSLDA) says it worked "with our friends on Capitol Hill to craft the language of this bill." HSLDA is presenting incorrect, misleading, and exaggerated claims for what the bill would accomplish. Even in the unlikely event that the bill brought a few small gains for homeschoolers, those gains would not be worth the risks of opening the door to federal regulation of homeschooling, creating a backlash against homeschoolers, and strengthening the power of the federal government in education.

Unfortunately, HSLDA has a strong presence in Washington, D. C., partly because their headquarters are near D. C. Therefore, it is very important that homeschoolers who do not support this bill contact their federal legislators. Otherwise, we could end up with legislation that undermines homeschooling being supported by legislators who thought they were helping homeschoolers.

DIFFICULTIES CREATED BY THE BILL

Increases Opportunities for Federal Regulation of Homeschooling

This bill invites regulation of homeschooling by the federal government. After legislation becomes law, government agencies responsible for enforcing it write regulations that determine how the law will be enforced. These regulations have the force of law. Some provisions of this bill practically require that the federal government define homeschooling. (For examples, see below.) This is the kind of definition and control of homeschooling that many homeschoolers have been working hard to prevent for over 20 years.

At present, the federal government has very little, if any, authority over homeschooling because virtually all authority in education resides with individual states, not the federal government. However, the federal government has gained authority in some non-homeschooling areas of education by requiring states to do certain things in order to receive federal funds. This means that the quickest way the federal government can gain authority over homeschooling is if homeschoolers ask for legislation or money. Unfortunately, the current legislation does just that. It's the first homeschooling bill that tries to get a piece of a wide variety of education programs. Such programs bring with them state-mandated testing, state standards for curriculum, requirements for diplomas, and definitions of what qualify as educational expenses.

HSLDA's strategy moves homeschoolers closer to government-mandated standardized testing which would determine the content, structure, and beliefs of homeschools. To prove that homeschoolers deserve the benefits the bill would grant, HSLDA repeatedly cites studies that allegedly show that homeschoolers score well on standardized tests. (For information about problems with the studies, see WPA Newsletter #62, December, 1999, p. 9.) For example, the Findings section of the bill states, "(3) Education by parents at home has proven to be an effective means for young people to achieve success on standardized tests." Such reliance on standardized test scores implies that homeschoolers believe that such tests are reliable, that they're willing to take such tests and frequently do, and that requiring homeschoolers to take them would be reasonable. It also encourages people who think testing should be required of homeschoolers.

This bill offers opponents of homeschooling (including powerful lobbyists such as the public schools and the teachers unions) a golden opportunity to add amendments they want without having to go through the work of initiating legislation. It's difficult to get a bill passed without major changes, especially for a small minority that has powerful opponents.

Three of the six provisions in this bill concern federal money, which increases the risk of regulation. Whether the money comes directly as student financial aid or Byrd Scholarships or indirectly in the form of tax savings, "there's no such thing as a free lunch."

HSLDA seems to recognize that this bill could lead to federal regulation of homeschooling, since it states in the section on Findings, "(7) The United States Constitution does not allow federal control of homeschooling." It is very simplistic to think that federal regulation can be prevented by such a statement, especially when the bill provides so many opportunities for regulation. In other words, the federal government does not have control over homeschooling right now, but if we hand it opportunities on a silver platter through legislation such as this, it will gain control.

Increases Power of the Federal Government

This bill would increase the power of the federal government over against state governments, a development which many people oppose, realizing that it is unwise to look to the federal government to solve problems that can better be solved by individuals or through local or state government.

Undermines Gains and Increases Backlash

Many homeschoolers have gotten what they wanted or needed by negotiating with public officials, suggesting alternatives, and inventing new ways to meet requirements. These tactics generate a spirit of good will and cooperation. But HSLDA's strategy of shouting "Discrimination," focusing on technicalities in the statutes, and claiming part of the federal pie undermines much of what has been accomplished. Statutes can be important, to be sure, but they need to be viewed in the larger context of interactions among individuals and groups with differing needs and perspectives.

In addition, when two approaches are as different as conventional schooling and homeschooling, what one group sees as fair is likely to be seen by the other group as either unnecessarily restrictive or a special favor. Special favors are likely to generate a backlash against homeschoolers, especially from interest groups that feel they are competing with homeschoolers or losing money and prestige. (Four of the six provisions in this bill deal with money.) For an example, see the discussion below of responses to changes concerning college admissions and financial aid. Homeschoolers have worked hard to win the hearts and minds of the people. Without their understanding and support, it would be more difficult to maintain reasonable homeschooling statutes and policies. Do we want to risk this goodwill by allowing this legislation to go forward?

Increases Dependence on Experts

As citizens, we have a much better chance to maintain our rights when we know what the law does and does not require and when we insist that officials respect our rights and do not exceed their authority. (See IDEA below.) It is also much better to solve problems on the state and local level whenever possible than to expect legislators to pass laws that will solve them. Finally, it is a political reality that the stronger and more direct the language in a bill is, and the more clearly it protects or favors a small minority, the more likely competing interest groups (such as teachers unions) are to oppose it—rather like waking a sleeping giant.

PROBLEMS WITH SPECIFIC PROVISIONS

Note: Bills can be changed quickly through amendments. Provisions discussed here may have been amended or deleted. For the current version of the bill, go to http://thomas.loc.gov/ and type in H R 2732 and S 1562.

1. College Admission and Financial Aid

Until 1998, the Higher Education Act (HEA) required that participants in federal student aid programs have a high school diploma or a General Education Development (GED) Certificate, or pass a test approved by the U. S. Department of Education (DOE), or meet other standards that their state established that were approved by the U. S. DOE. Homeschoolers could (and still can) qualify by passing the ACT or SAT or earning a GED, which was not unreasonable, especially since most colleges require the ACT or SAT for admission. However, in 1998, HSLDA worked to have the phrase "complete a high school education in a home school setting that is treated as a home school or private school under state law" added to the list of options for qualifying.

This addition prompted a backlash among conventional school students, college admissions officers, and others who felt it was unfair to grant part of the limited federal aid to homeschoolers who only had diplomas their parents had issued. Some schools interpreted Sec. 1001 (a) (1) of HEA to mean that if they admitted homeschoolers, they would not receive federal financial aid for any students. In response, some homeschoolers got the Department of Education to issue a notice in April, 2002, making it easier for colleges to admit homeschoolers.

According to The Chronicle of Higher Education, "College officials worry that lobbyists for homeschoolers will persuade Republicans in Congress and the Bush administration to require colleges to admit students who may not be adequately prepared, exposing the institution to lawsuits if they refuse to enroll them. These officials point to a letter that the Home School Legal Defense Association, a national lobbying group, sent to financial-aid administrators and admissions officers on the heels of the Education Department's notice. The letter stated that requiring home-schooled students to take extra tests to qualify for admission is 'considered discriminatory.' The letter demanded that 'all the barriers for home-schoolers seeking admission and financial aid must immediately be disregarded and revoked from the policy of your university.'" ("A Growing Force: In fight for federal student aid, home-school lobby has powerful friends," January 17, 2003, p. A19 ff.)

In this legislation, HSLDA is attempting to correct this problem (which it largely created) by amending Sec. 1001 (a) (1) of HEA to make it clear that colleges can admit homeschoolers and maintain their federal aid. Such action is likely to increase the animosity of some college admissions and financial aid officers toward homeschooling, making things more difficult for homeschoolers than they are under the current statute, especially since the Department of Education's notice clarified the question over a year ago.

The bill would also amend HEA by changing the header under which homeschoolers are listed from "Students who are not high school graduates" to "Satisfaction of secondary education standards." However, it would be better for homeschool graduates to accept that in one statute they are not recognized as "graduates" than to introduce into federal statutes the idea that homeschoolers should comply with the government's education standards, something many homeschoolers are working very hard to avoid. In addition, the fact that some homeschoolers are suggesting standards implies that homeschoolers feel that meeting standards would be a reasonable requirement, thus encouraging officials who favor increased government regulation of homeschooling. It's a matter of keeping our priorities straight.

2. IDEA

The Individuals with Disabilities Education Act (IDEA) is a federal program designed to ensure that children with disabilities whose parents want them to attend public schools will receive an appropriate education. IDEA requires that states offer screenings and evaluations to identify children with disabilities, develop Individual Education Plans (IEPs) for children with disabilities, and offer services consistent with each child's IEP. Under the IDEA program, parents can refuse to have their children screened, or refuse to have them evaluated once they have been screened, or refuse to have an IEP developed for them once they have been evaluated, or refuse to enroll them in public school programs following an IEP. However, school officials sometimes do not know what the statutes require or misinterpret them or deliberately try to exceed their legal authority and tell parents that screenings or evaluations are required. (For more information on IDEA, see WPA Newsletter #76, June, 2003, pages 11-13.)

HSLDA's proposal in this legislation would add several paragraphs to IDEA stating that public schools are not required to provide services for families who refuse to consent to screenings and evaluations. This is a bad idea. Our freedoms are much more secure when we parents take responsibility for knowing what our rights are instead of relying on officials to know them. It would be much better to inform parents and, whenever possible, officials that the current IDEA statutes give parents the right to refuse any and all of what public schools are required to offer. Essentially any statute can be misinterpreted or ignored by officials who want to misinterpret it or who are determined to increase their authority. Legislation that tries to take care of citizens in this way only adds to the power of the federal government and is contrary to principles of self-government and a free society. If a new statute were added every time officials misinterpreted or exceeded an existing one, think what an ever greater mess the federal and state legal codes would be in!

In addition, the proposed paragraphs are likely to be opposed by special education professionals, social workers, and other powerful supporters of IDEA. The bill also gives critics of homeschooling an opportunity to argue that homeschoolers should be screened since they are not regularly observed by professionals in a conventional school.

3. Coverdell Education Savings Accounts

Coverdell accounts offer a tax break that benefits families in high tax brackets by allowing them to establish tax-free savings accounts and then use the money to cover approved educational expenses. By including approved homeschooling expenditures on the list of acceptable expenses, this legislation would invite the federal government to define homeschooling and decide what constitutes acceptable homeschooling activities so taxpayers and IRS auditors would know what expenses are acceptable. The government would want to know details about homeschooling curriculums and learning activities. Over time the government would develop its own definition of what a curriculum is, what types of computer activities are "educational" enough to make the purchase of a computer an approved expense, and much more. Many homeschoolers feel that our homeschooling freedoms are not for sale, and, in addition, families would have to be in a high tax bracket to benefit from using Coverdell Accounts for homeschooling expenses.

4. Privacy of Homeschoolers' Records

The bill would require written consent from homeschoolers' parents before information about them could be released by public schools and other public institutions that have such information. Privacy is certainly an important issue. However, it needs to be approached in a much more substantive and thoroughgoing manner. Also, since this bill would apparently give homeschoolers greater protection than students enrolled in public schools have, this provision could be viewed by critics of homeschooling as granting special favors to homeschoolers. In addition, some states have cited the Family Educational Rights and Privacy Act (FERPA) as justification for refusing to release information about homeschoolers. They obviously interpret this statute very differently from the way HSLDA does.

5. Byrd Scholarships

Under current law, applicants must "be a graduate of a public or private secondary school or have the equivalent of a certificate of graduation as recognized by the State in which the student resides," making it difficult if not impossible for homeschoolers to apply for these federal scholarships worth $1,500 per year for four years. There are many, many other scholarships for which homeschoolers can apply, many of them larger than these, so why raise complex questions about whether homeschooling is comparable to conventional schooling and risk more backlash and federal regulation? Also, it is unrealistic for us to think that we can choose to homeschool and still receive all the so-called benefits of attending conventional schools.

6. Work Hours for Homeschoolers

HSLDA claims that this legislation "permits older homeschooled teens to work during traditional school hours. (Currently, federal law does not allow a student to work during school hours.)" (Quote from "Congress to Introduce Homeschool Non-Discrimination Bill" on HSLDA's Web site at www.hslda.org) This is wrong for two reasons. First, current federal statutes allow 17 and 18 year olds to work during conventional school hours. (However, state statutes may not allow them to.) Second, federal and state labor statutes often differ. Employers and workers are required to comply with both federal and state laws. Where there are differences, they must comply with whichever statute is stricter. Therefore, this bill would not necessarily make it possible for 14-, 15-, and 16-year-old homeschoolers to work during conventional school hours, since some states have statutes that prohibit that and would take precedence over the federal statutes.

In addition, the proposal, especially when applied to children as young as 14, could strengthen the concern that parents are keeping their children out of school to have them work that has been raised by some critics of homeschooling, child welfare advocates, and child's rights advocates who feel children need to be protected from their parents. Also, the provision is likely to be viewed as granting special privileges to homeschoolers, especially since employers would be likely to choose homeschoolers over equally qualified conventionally schooled peers simply because their schedules are more flexible. Finally, if it were really a good idea to change federal law so 14-, 15-, and 16-year-old homeschoolers could work during school hours if state law allows it, it would be better if the push for such legislation came from employers rather than homeschoolers. This would reduce criticism of homeschoolers and backlash against homeschoolers.

In sum, H R 2732 and S 1562 boil down to:

A bungled attempt to correct a problem created by an earlier mistake by HSLDA concerning college admission and financial aid.

An attempt to "clarify" a statute (IDEA) that public officials are misinterpreting (instead of having parents educate officials).

An opportunity for homeschoolers to participate in Coverdell tax breaks for families in high tax brackets.

An attempt to provide homeschoolers with special favors by protecting their records.

An opportunity for homeschoolers to apply for a relatively small scholarship (Byrd).

A change in child labor laws that would not do what HSLDA claims it would.

WHAT WE CAN DO

We can inform ourselves about problems created by this bill and share the information with others, especially through support groups.

We can contact members of the U. S. House of Representatives from Wisconsin. It is particularly important that we contact Representatives Paul Ryan (Kenosha, Racine, Janesville, etc.), Ron Kind (Eau Claire, La Crosse, etc.), and Thomas Petri (Fond du Lac, Oshkosh, etc.). See details below. (It is not a high priority to contact Senators Feingold and Kohl now, since the Senate is unlikely to do much with the bill unless the House passes it.) Phone calls are much more effective than emails, but emails are better than nothing. (Be sure to include your snail mail address in your email since legislators may dismiss emails without this information.)

Call or email Representatives Ryan, Kind, and Petri and your own representative if you are not represented by one of these three.

Representative Ryan (202-225-3031 in D. C.) is a co-sponsor of the bill. Ask him to withdraw his co-sponsorship. He may have been told that co-sponsoring this bill was a good way to support homeschooling. Take time to explain to him (or his aide) that actually the bill would undermine homeschooling. You can either go over the key provisions in the bill and explain the problems with each as outlined in this article or send him a copy of the points made in that section of this article. Explain that many homeschoolers oppose this legislation. If he hears from a number of homeschoolers in his district and throughout Wisconsin who oppose it, he may withdraw his sponsorship.

Representative Kind (888-442-8040 in La Crosse) is on the House Committee on Education and the Workforce to which H R 2732 has been referred and on the subcommittee on Education Reform to which it has been further referred. Ask him to oppose the bill and encourage other committee members to do likewise.

Representative Petri (800-242-4883 in Fond du Lac) is on the House Committee on Education and the Workforce to which which H R 2732 has been referred. Ask him to oppose the bill and encourage other committee members to do likewise.

Also contact Rep. John A. Boehner (R-OH, 202-225-6205, john.boehner@mail.house.gov), Chair of the House Committee on Education and the Workforce, to which the bill has been referred. Leave a message with whoever answers the phone indicating that you are a homeschooler who opposes H R 2732.

To make your calls more effective:

Have your points well in mind so you can answer questions and make it clear you are an informed citizen, not someone reading an email or post card they don't understand.

If you want background information on a representative before you call, go to http://www.visi.com/juan/congress/ and do a "Power Search" for them. (This site also has legislators' web-based email addresses.) Often having background information makes it easier to choose points to make that are most likely to convince a representative.

When you call a representative, identify yourself by name and the city and state where you live. Say your call concerns H R 2732, a homeschooling bill, and ask to speak to the aide who handles education.

Briefly explain to the aide why you oppose the bill.

If the aide says that H R 2732 is still in committee so there's nothing they can do, say that representatives are being asked to co-sponsor the bill and you're asking them not to do so. Also, ask them to share your concerns with Rep. John A. Boehner, Chair of the Committee on Education and the Workforce, to which the bill has been referred.

Explain that a homeschooling organization (HSLDA) is lobbying for the bill, and you want to make it clear that HSLDA only represents a minority of homeschoolers and does not represent you.

Ask for the representative's position on the bill.

Be polite.

It is important that we contact our representatives so we don't end up with legislation that undermines homeschooling being supported by legislators who thought they were helping homeschoolers.