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February 14, 1997 Dear Superintendent Bean, This letter is in response to your request for legal advice about the rights and duties of parents and school districts regarding home education in Utah. You have asked ten questions dealing with various aspects of home schools. Before responding to those questions, a brief summary of Utah's home schooling statute may be helpful. Question No. 1: May parents unilaterally withdraw their children from school for purposes of home schooling? Question No. 2: If the answer to question No. 1 is "no," what is the relationship between parents and school officials in establishing a home school? Is the parent's task simply to provide notice, or to submit a petition? Is the school's task simply to accept parental assertions or to conduct some level of inquiry? Question No. 3: If the relationship is one of parental petitioner and school district grantor, how much discretion does the district have, and what may it require of petitioners? May the school, for example, require home visits, testing, school logs, or evidence concerning the qualifications of the home school teachers? Question No. 4: If school officials do not believe that the education to be provided in a planned home school will be adequate, may permission be denied? Question No. 5: May permission be revoked during the school year if school officials believe that requirements are not being met? Question No. 6: If the role of the school is that of a permission-grantor after determining that the education to be given in a home school meets the same minimum requirements as public school, must the school district grant grade advancements and credit on the basis of home school attendance? Question No. 7: If a parent wishes to enroll a home school student in public school for certain programs or classes (e.g., driver education, advanced placement classes) while continuing to provide other classes at home, must the school district grant part-time enrollment? Question No. 8: If a school district releases a student for home education, must the school district subsequently issue a transcript or diploma to that student? Question No. 9: What is the difference between a home school and a "regularly organized private school," and what are the powers and limitations of a school district relative to each? Question No. 10: Would enrollment in a home study school operated through the mail or similar means constitute a regularly organized private school enrollment or home school enrollment? Summary It is a well-founded principle in our society that under the liberty clause of the Fourteenth Amendment of the United States Constitution, parents have the freedom to direct the upbringing of their children without outside interference. However this freedom is not absolute and the state, as parens patriae, has an interest in safeguarding the rights of children as well as the rights of the parents to raise their children as they see fit. The theory that children have rights is based on the needs of children rather than their desires. These rights are not necessarily autonomous as are the rights of adults. Emphasizing the needs of children rather than choice places the primary emphasis upon integration of persons into society. The value placed on parental direction of a child's upbringing has a high place in our society, and as a general rule, parents should not be limited in their choices for their children except when those choices are detrimental to the child's interests. As noted by the United States Supreme Court in the case of Wisconsin v. Yoder, 406 U.S. 205 (l972), children need to acquire skills to live in modern society and the state has a compelling interest to see that this happens. The purpose for mandating education is to raise productive, participating members of society ably equipped to carry on the democratic tradition in a rational and intelligent manner. Because school attendance is mandatory, every child is entitled to receive an education and every state has the duty to see that the child gets one. Therefore, children do have rights which exist independently of their parents' wishes for some purposes. If parents decide to educate their children at home, the instruction must be sufficient to prepare children to participate in society. Applying the state's interest to the local level in Utah, it is the responsibility of the school district to see that the statutory mandates are carried out. If parents deliberately refuse to educate their child as required by law, then it is deemed that the children are not receiving proper care. This refusal is educational neglect and should be reported to the juvenile court by school authorities. Balancing the interests of the parent, child and state is a very delicate task. In a home schooling situation, the balancing act is facilitated by the local district's monitoring of the home school program. Monitoring should not extend beyond a minimal level necessary for the narrow purpose of ascertaining whether or not the home education is minimally sufficient. The foregoing discussion is informal legal advice to the State Superintendent of Public Instruction. This advice has not been reviewed or approved by the Attorney General and does not constitute a legal opinion of the Attorney General's Office. Nevertheless, the answers to the foregoing questions should lend some clarity and guidance to assist educators in determining whether or not the particular home instruction meets statutory and regulatory standards with minimal intrusion on parental rights. Please let us know if you have any further questions. Very truly yours, (signed) JOHN S. McALLISTER JSM/bk |