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ASSOCIATION FOR CHILDREN OF NEW JERSEY

ASSOCIATION FOR CHILDREN OF NEW JERSEY

Children’s Legal Bulletin

                                                                        Spring 2004

 

Does New Jersey’s Lack of Homeschooling Regulations Deny Children Their Rights?

 

By: Debra Pavignano, Ed.D., J.D.

 

When four children were discovered starving in a Camden County adoptive home, people questioned how these children failed to come to the attention of authorities earlier. The Collingswood couple, who is charged with abusing these boys for several years, homeschooled their children. The school district never monitored the boys’ academic progress.

 

This high-profile child abuse case, which surfaced in fall 2003, trained scrutiny on school districts’ responsibility in overseeing children whose parents choose to educate them at home. The case brought to the public’s attention a startling revelation: New Jersey has no regulations requiring school districts to monitor children who are being educated at home or in private schools.

 

This ACNJ article offers an overview of the legal obligations of the state, school districts and parents in the education of all children. It also provides information about how neighboring states regulate homeschooling. And, it raises questions that should be explored if New Jersey considers imposing regulations for children being educated outside the public schools. Currently, a bill is pending in the New Jersey Assembly that would impose minimal regulation on homeschool students.

 

New Jersey Law

New Jersey law requires that all students between the ages of six and 16 receive an education.[i] State statute allows parents to educate their children in “the public schools of the district or a day (private) school… or elsewhere…”[ii] Parents and guardians who fail to comply can be charged in municipal court as disorderly persons and subject to fines ranging from $25 to $100, per offense.[iii]  Parent(s) who select to educate their children “elsewhere,” outside any formal public or private school, usually choose to “homeschool” their children.  

 

The law requires that any education provided in a day school must be “equivalent to that provided in public schools for children of similar age or attainment.”[iv] The law further states that instruction provided “elsewhere” must be “equivalent.”[v] Currently, there are no administrative procedures to ascertain whether day schools are providing an equivalent education. In regard to students educated outside the “school” setting, neither legislation nor administrative procedure provides guidance in determining the meaning of “equivalent.”

 

The responsibility for defining “equivalent” fell to the judiciary in State v. Massa.[vi] This New Jersey Appellate Division decision interpreted the law to require a showing of academic equivalence. Citing an Indiana Appeals Court decision Judge Collins said the burden is on the state to demonstrate beyond a reasonable doubt that a parent is failing to provide equivalent academic instruction.[vii]

 

New Jersey regulations require foster children to “receive an education appropriate to his or her abilities as provided for under state laws governing compulsory education and education for disabled children.”[viii] Regulations also mandate the state Division of Youth and Family Services to ensure the foster child is enrolled in school.[ix] As a result of the circumstances of the Jackson case, DYFS adopted a policy to eliminate homeschooling as an option for foster children.[x]

 

New Jersey’s Department of Education’s Response to Homeschooling

In 1997, homeschooling parents in New Jersey estimated that approximately 2,000 students were currently being educated at home. Parents and school districts questioned their rights and responsibilities for homeschooled students. The New Jersey State Department of Education (DOE) published a guide entitled, “Homeschooling in New Jersey.”  This guide summarized the history of homeschooling, outlined school district’s responsibilities, suggested areas in which local boards should develop and adopt policies and discussed student entitlements. 

 

The guide said parents choosing to homeschool their children should notify the local superintendent and submit a curriculum for review. The superintendent was supposed to judge the proposed curriculum’s “equivalency” to the public school program. On the superintendent’s recommendation, the local board of education would approve the curriculum and the parent as instructor, or challenge the plan by bringing a truancy proceeding against the parent.[xi]

 

The Home School Legal Defense Association (HSLDA), a national organization representing the rights of parents to educate their children at home, immediately challenged this document. The HSLDA asserted that “historically in America, children were educated by their parents, and society recognized that parents not only had this duty but also the right to direct the education of their children.”[xii] The HSLDA position is supported by the United States Supreme Court decisions in Pierce v. Society of Sisters[xiii] and Wisconsin v. Yoder.[xiv]  In Pierce, the court struck down an Oregon law, which required all children to attend public school. The Court affirmed parental responsibility for the education of their children in Yoder, when it said a state could not compel Amish children to attend public high school.

 

The New Jersey DOE responded to the HSLDA challenge by softening its position in a Question and Answer document published in December 2002.[xv] This current “document is intended to promote general guidance for parent(s)/guardian(s) and school administrators…. It does not constitute legal advice or state directives.” The document provides the following information:

 

Identification

● Parents are not required to notify local officials when they choose to school their children at home or, for that matter, in private school.

●The district may, but need not, maintain a record of children educated outside the public school.

 

Curriculum

● The law neither authorizes nor requires review and approval of the curriculum used to educate the child.

● The parent may request and be given a copy of the district curriculum. The curriculum is a public record. The parent may be charged a copying fee for the document(s).

● The parent may select the program and delivery method for instruction. A non-public schoolteacher need not be certified to deliver instruction.

 

District Responsibility

● If a district has credible evidence that a child is not receiving a compulsory education, the district may bring the parents to municipal court, where they may be fined if found guilty.

 

Participation in School Activities

● The district MAY, but is not required to:

n Lend textbooks

n Allow the student to participate in:

º Curricular activities[xvi]

º Extra-curricular activities

n Districts are advised to consult their legal counsel to consider the full implications of each decision as it relates to all non-public school students

 

Special Education

● When a resident makes a written request for an evaluation, the local school district must assess any child with a suspected disability in accordance with federal and state law. This includes children being schooled at home.

● If the evaluations find a child eligible for special services, a free, appropriate public education must be offered. However, a parent can decline services and continue to educate the child outside the public school arena.

● A school district must provide some special education services to the eligible child, if it provides similar services to all eligible non-public school students.[xvii]

n School districts are advised to consult their legal counsel to consider the full implications of each decision as it relates to all non-public school students.

 

Vocational Education/Shared-Time County Programs

● Participation in shared-time county vocational programs must be available to a homeschooler “to the extent that space is available.”[xviii]  

n Students participating in such programs are considered enrolled in public school and, therefore, the student’s school district of residence is responsible for payment of any tuition and required transportation to the vocational school.

 

Testing

Homeschoolers may not participate in local or state testing programs.

 

High School Diploma

Homeschoolers are not entitled to either their local high school or a state diploma.

 

Homeschool Regulations in Neighboring States: New York, Connecticut, and Pennsylvania

New Jersey’s neighboring states have enacted legislation and procedures that regulate homeschooling. In addition to reporting mechanisms, Pennsylvania, New York and Connecticut regulate content, the number of required instruction days and performance standards. 

 

Though enforcement of compulsory education statutes are left to individual school districts, Pennsylvania and New York maintain statistics on students educated at public schools, non-public schools and at home.  Except perhaps in large urban cities, Pennsylvania students are virtually all accounted for through state-mandated census that districts must conduct each year to identify students and where they are being educated. In both states, 2002-2003 statistics show slightly more than one percent of all school-aged children receive instruction through homeschooling.[xix]

 

Pennsylvania adopted a home education law in 1988.[xx]  Parents have three options, outside public or private schools, to meet the compulsory attendance laws. They may operate a home education program, hire a private tutor or establish a home education program that is an extension of a church school. Each option carries mandatory attendance rules, subject matter to be taught, teacher qualifications and notification to the local school district. Further, students educated at home are subject to state health requirements concerning immunizations and periodic medical examinations. Students in home education programs must maintain portfolios of their work, participate in standardized testing in grades 3, 5, and 8, and provide a written annual evaluation of work completed to the local district.[xxi]

           

New York’s compulsory laws require parents to register annually, with their local board of education, their intent to homeschool, instructional plans, attendance records, including hours of instruction by subject and student test results. The law further provides that quarterly attendance and narrative evaluations by subject be filed with the local district.  Procedures have been established to assure that the controlling district receives these reports in a timely manner. Students whose standardized test results place them in the 33rd percentile for their grade level can have their instructional program placed on probation.[xxii]  Failure to comply with compulsory education laws or reporting regulations results in truancy and/or educational neglect charges being filed against the parent(s).[xxiii]

 

Connecticut requests that parents submit a letter of intent to homeschool children prior to the beginning of instruction. Parents are required to teach specific subjects and to compel attendance for 180 days. They must also maintain a work portfolio, for review by the local school district that demonstrates the child is receiving instruction in the required courses.[xxiv]

 

Conclusion

Education is the foundation and backbone of a democratic society. New Jersey law requires that all students between the ages of six and 16 receive a compulsory education. The United States Supreme Court has acknowledged, and New Jersey law supports, a parent’s right to educate a child in public or private school, or elsewhere. However, New Jersey is only one of nine states that impose no regulations on “elsewhere” (home) schooling.[xxv]  The other states that do not regulate homeschooling include: Alaska, Idaho, Illinois, Indiana, Michigan, Missouri, Oklahoma, and Texas. 

 

The lack of regulations raises two broad policy issues:

1.      There is no data on the number of children being schooled outside the public school system. This makes it impossible to determine how many children are being educated by private schools or homeschooled and whether these children are being provided with an “equivalent” education, as required by state law.

2.      Local boards of education enforce compulsory education laws. School administrators, then, shoulder the responsibility to identify, challenge and prove that parents are failing to meet their statutory obligation. In many cases, the local district may be unaware that a child is being homeschooled or attending private school. So, application of the statute is likely to be weak and inconsistent. 

 

As policymakers explore the question of whether to provide state regulation of homeschooling, they should ask the following questions:

1.      Should all children between the ages of six and 16 be registered with some government agency? Which one? Who will bear the cost of registration and maintenance of those records? Will these records be crosschecked against public/private school, elsewhere enrollments?

2.      If curriculum for homeschoolers is subject to approval, who will approve it? Currently there is no procedure in place to monitor the equivalence of private school curriculum. Should there be?

3.      Should achievement of homeschoolers be monitored? If so, by whom? How often? Who should pay for it? Should private school achievement be monitored?  If so, by whom and who should pay for it?



[i] N.J.S.A.  18A:38-25

[ii] N.J.S.A. 18A:38-31

[iii] Ibid.

[iv] N.J.S.A. 18A:38-25

[v] Ibid.

[vi] State v. Massa, 95 N.J. Super. 382, 231 A 2d. 252(1967)

[vii] Op. cit. 95 N.J. Super. 382 at 391.

[viii] N.J.A.C. 10:122D-2.6(a)

[ix] N.J.A.C. 10:122D-2.6(f)(1).

[x] January 30,2004 inter-office communication from Edward Cotton, Director DYFS

[xi] Ibid.

[xii] Letter from Dewitt T. Black, III, Esq. To Leo Klagholtz, May 8, 1997

[xiii] 268 U.S. 510 (1925)

[xiv] 406 U.S. 205 (1972)

[xv] www.state.nj.us/njded/genfo/overview/faq_homeschool.htm

[xvi] Although there is no New Jersey case on point, in Swanson v. Guthrie Independent School District, 135 F.3d.694 (10th Cir. 1998) the court upheld district policy to prohibit part-time attendance at public school.

[xvii] Forstrom v. Fair Lawn Public Schools, 775 A. 2d 65, (21 May 2001)

[xviii] N.J.A.C. 6:43-3.11(b)

[xix] Information provided by Pennsylvania and New York State Department of Education personnel to the author during phone conversations on March 24, 2003.  Department statistics for 2002-2003 school year.

[xx] Act 169-1998; 24 PS 13-1327.1 et sec

[xxi] For more information see www.pde.state.pa.us

[xxii] For more information see www.emsc.nysed.gov

[xxiii] Ob. cit. PA Department of Education; NY Department of Education

[xxiv] For more information see www.hslda.org/laws

[xxv]  Ibid.