Homeschool Information Library
HR 6 and the Federalization of Homeschooling
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-Larry & Susan Kaseman
Two separate forces are working simultaneously that would federalize homeschooling, that is, put homeschooling under the control of the federal government. If homeschoolers do not take action now, much of the energy and independence of the homeschooling movement may be lost as it comes under the control of the federal government. This column will discuss these two forces and suggest ways homeschoolers can resist them, both on the short term and on the long term.
FORCES THAT WOULD FEDERALIZE HOMESCHOOLING
(1) INCREASING GOVERNMENT CONTROL OF EDUCATION IN GENERAL
First, homeschoolers may be swept along with the rest of the population into a net of government control of education in general. The power structure in our society is giving too much support to new programs like Goals 2000 and outcome-based education (OBE) for us to be able to stop them on the federal level. Such programs are basically an indication that the U.S. system of conventional education is in decline. They are an attempt to salvage a failing system by directing and forcing it from the top.
However, the federal government does not have the authority to control education directly. It is limited to influencing education indirectly by appropriating money largely for grants to be given to schools on the condition that they comply with requirements in federal laws and regulations. Therefore, federal programs cannot be effective unless states and local school districts decide to initiate them and unless people are willing to participate in them. People who object to federal programs can effectively resist them on the state and local level by trying to block the adoption of programs to which they are opposed and by refusing to participate in objectionable programs which are adopted.
(2) AMENDMENTS TO H. R. 6 THAT COULD LEAD TO FEDERAL REGULATIONS CONCERNING HOMESCHOOLS
A second force that would federalize homeschooling, and a much more immediate threat to homeschooling, stems from two new amendments added to H. R. 6, the House version of ESEA, the Elementary and Secondary Education Act, a $12 billion reauthorization of a number of federal programs in education. These amendments were written in response to the overreaction to the Miller amendment to H. R. 6 (see below for more details about the Miller amendment). The two new amendments encourage federalization of homeschooling in two ways. First, they clearly imply that the federal government has control over homeschools, which it does not. Second, they introduce "home schools" as a separate class of private education in federal statutes and open the door for federal regulations to be written about homeschools.
Note: Before analyzing the amendments to H. R. 6, it is important to realize and accept that in working with legislation, each piece of legislation, each amendment has to be considered on its own merits. Sometimes the process may seem confusing and even contradictory. A provision (such as the Miller amendment to H. R. 6) that might seem at first glance to pose a threat to homeschoolers may turn out to be relatively insignificant and easy to clarify with a few words. On the other hand, provisions (such as the second part of the Ford/Kildee and the entire Armey amendments to H. R. 6) that at first glance might seem helpful to homeschoolers may, on reflection and analysis, turn out to be dangerous to homeschooling.
Here are the texts of the amendments followed by an explanation of the problems they present:
The first part of the Ford/Kildee amendment removes the Miller amendment from H. R. 6. The second part states, "Nothing in this Act shall be construed to affect home schools." (Congressional Record, February 24, 1994, p. H828).
The version of the Armey amendment that was finally adopted by the House says,
Nothing in this Act shall be construed to permit, allow, encourage, or authorize any federal control over any aspect of any private, religious, or home school, whether or not a home school is treated as a private school or home school under State law. This section shall not be construed to bar private, religious or home schools from participation in programs or services under the Act. (Congressional Record, February 24, 1994, p. H833.)
Neither the second part of the Ford/Kildee amendment nor the Armey amendment is necessary. Except for these amendments, H. R. 6 does not contain provisions that could reasonably be interpreted as being likely to lead to federal control of homeschools. Private schools, including homeschools, are protected from federal regulation by the U. S. Constitution and Section 432 of the General Education Provisions Act of 1970 which states that:
Prohibition Against Federal Control of Education. No provision of any applicable program [defined as any program administered by the Secretary of the U. S. Department of Education] shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over curricula, program of instruction, administration, or personnel of any educational institution, school, or school system, or over the selection of library resources, textbooks, or other printed or published instructional materials by any educational institution or school system, or to require the assignment of transportation of students or teachers in order to overcome racial imbalance." (Congressional Record, February 24, 1994, p. H834.]
The second part of the Ford/Kildee amendment and the Armey amendment are unnecessary, would give private schools (including homeschools) nothing, and pose threats to private schools (including homeschools).
* INTRODUCING "HOME SCHOOLS" WOULD LEAD TO FEDERAL REGULATIONS
Both amendments would introduce "home schools" as a separate class of schools in federal statutes. This in effect would mean that the federal government would "name" homeschools and thereby gain dominion over them. It would also open the door for federal regulations to be written about homeschools now or at some time in the future. (Regulations are written by bureaucrats to further define and clarify laws so they can be more easily implemented, administered, and enforced.) Bureaucrats could easily claim that federal regulations need to be written so "home schools" can be identified and possibly participate in federal programs and receive services.
Regulations are serious business. They have the force of law, so federal regulations concerning homeschooling could be as dangerous as a federal homeschooling law. Virtually any definition of "home schools" would lead to government control over homeschools. Even more serious, individual states would have to accept and/or adopt federal regulations in order for people in that state to be eligible to participate in federal programs. Therefore, the federal regulations would probably be adopted by the states. This could have the effect of changing the homeschooling laws in all 50 states. In addition, since the process of writing regulations is dominated by the powerful special interests that strongly influence the U. S. Department of Education, regulations would be more likely to serve the interests and desires of the educational establishment than of homeschoolers.
People who call the U. S. Department of Education for more information on regulations should be prepared to be assured that the department would be unlikely to write homeschooling regulations. Officials may also claim that the rule making process is fair because proposed regulations are published in the Federal Register, comments are solicited, and hearings are sometimes held before regulations are finalized. However, it would be naive and unwise to rely on such assurances, especially since the educational establishment would put a lot of pressure on the U. S. Department of Education.
* EXEMPTING "HOME SCHOOLS" WOULD IMPLY FEDERAL JURISDICTION OVER HOMESCHOOLS
The statement, "Nothing in this Act shall be construed to affect home schools" clearly implies that the federal government has, or could reasonably be assumed to have, some jurisdiction over homeschools-otherwise why would this exemption be included in the bill? The bill does not assure people that it does not apply to adults teaching themselves to cook or sew, for example, because common sense and tradition make it clear that the bill does not apply to them.
As homeschoolers we will be in a much better position if we stick with our constitutional protections and the statute quoted above and continue to assert that we do not need an exemption because it is clear that the federal government does not have the authority to control homeschools. This reminds opponents of homeschooling, neutral parties, and homeschoolers of the freedoms that are ours if we simply claim them but that will cease to be ours if we let them be eroded by inaccurate assumptions and unnecessary and damaging exemptions.
Also, an amendment exempting homeschools would set a dangerous precedent. It could then be assumed and argued that any future education bills which do not specifically exempt homeschools do in fact include them. Each time an exemption is made, it would cost homeschoolers more freedom and increase government control of homeschooling. In addition, any time an exemption or list of exemptions is made, it is assumed that anything not included on the list was considered as a possible exemption and then rejected. On the other hand, when exemptions are unnecessary, freedoms are better maintained if the exemptions are not made.
* DIVIDING PRIVATE SCHOOLS INTO THREE CLASSES WOULD WEAKEN PRIVATE EDUCATION
Dividing private schools into three separate classes, as the Armey amendment does, would weaken the protection from government control that private schools now have. At present, educational institutions in this country are divided into two classes: public and private. Large and small private schools, religious schools, and homeschools will all benefit from maintaining their common definition as private schools for several reasons:
* As things stand now, any private school, including any religious school or homeschool, can claim the rights, privileges, and protections that have historically, traditionally, and legally been afforded to the general class of private schools. These rights, privileges, and protections are considerable, including strict limitations on government interference in private schools, lack of requirements for teacher certification, choice of curriculum and calendar, etc. If religious schools and/or homeschools are defined in federal statutes as separate classes, they may well need to justify and/or reestablish these rights, privileges, and protections. What is more, they would need to do it at a time when government interference in education is much more widely accepted and supported than it was at the time private schools' rights, privileges, and protections were established.
* Religious schools and homeschools will be in a weaker position politically if they have to stand alone than if they can stand in the company of each other and other private schools. This is particularly important at a time when number, money, and pure political power have a great deal of influence over decisions that are made by Congress and state legislatures.
* ADOPTING THESE AMENDMENTS WOULD PROVIDE A FALSE SENSE OF SECURITY
In addition to increasing government control over private education and failing to provide any meaningful protection, the exemptions in these two amendments would give those of us involved in private education a false sense of security. It would weaken our commitment to working to maintain our freedoms on the state and local level, which is where the significant action occurs. They would distract us from the important work that we are doing on the state and local level to maintain our freedoms.
For more information on the problems that the second part of the Ford/Kildee amendment and the Armey amendment raise for homeschoolers, see the first issue of the PRAIRIE bulletin, described at the end of this article.
Let us conclude this discussion of the problems raised by federalization with a look at what has resulted from parents turning to the federal government for services for children with special needs, such as those who have been labeled "learning disabled." Special education programs were begun 30 years ago. Now many parents are finding that these programs are traps rather than solutions to problems. Once a parent has agreed to have a child screened, if the child is judged to have a special need, it is very difficult for parents to take the child out of the special programs. At this point, the only sanctuary for such children, the only way they can be sure to get out of highly controversial special education programs, is to stop attending public schools and instead attend private schools, including homeschools. The second part of the Ford/Kildee amendment and the Armey amendment would threaten even this sanctuary by increasing federal control over private education in ways outlined above. Thus, in the end, special education programs that parents initiated to help their children have become a serious problem. Why would homeschoolers want to be federalized? Shouldn't we strongly oppose these amendments? (For more information on the problems of special education, see U. S. News and World Report, cover story, Dec. 13, 1993.)
WHAT WE CAN DO ON THE SHORT TERM
* SHARE THIS INFORMATION WITH OTHERS WHO WILL BE AFFECTED
We can talk with other homeschoolers we know. In addition to homeschoolers, these amendments would affect people involved in private schools. We can explain to them that separating private education into three classes would increase the possibility of religious schools being defined as separate from other private schools in government regulations and thus subject to increased government control. Also, people who have worked for choice initiatives in education may appreciate hearing how their positions would be better served by opposing the second part of the Ford/Kildee and the Armey amendments than by supporting them.
* WORK TO REMOVE TROUBLESOME HOMESCHOOLING AMENDMENTS FROM H. R. 6 AND KEEP THEM OUT OF S. 1513
Homeschoolers can weigh the information presented here and take action. Because of lead time needed for printing this column, it can only provide information as of the middle of March, at which time S. 1513 (the Senate version of ESEA) had not been scheduled for hearings. Therefore, the first step is to call 202-225-1772 and request current information on the status of H. R. 6 and S. 1513. The exact wording of the entire troublesome amendments is quoted above, but if you still want a copy of the whole conference report on H. R. 6, request it from your representative or the House Documents Room (202-225-3456).
If S. 1513 has not been voted on by the Senate, you could contact your senators and ask them to work to ensure that "home schools" are not named as a separate class in S. 1513; that private education is not divided into private, religious and home schools; and that the second part of the Ford/Kildee amendment and the Armey amendment are removed from H. R. 6 during the conference committee meetings which will be held to resolve differences between H. R. 6 and S. 1513. Because of the complexity of this issue, it might be better to write to senators rather than calling them.
It will be helpful to make it crystal clear that we are asking that the Senate not add amendments like the second part of the Ford/Kildee amendment and the Armey amendment to S. 1513. (This may be a surprise to senators and aides, since most people who contact them are asking to have something written into a statute.) We don't want exemptions for private schools, including home schools in S. 1513 or in the final version of ESEA. We don't want "home schools" introduced as a new class of educational institutions in S. 1513 or in the final version of ESEA. We don't want private education divided into "private schools, religious schools, and home schools." In short, what we really want is not to have the words "home schools" appear in ESEA at all.
If S. 1513 has been passed by the Senate but has not yet been voted on by the conference committee, we can contact our representatives and senators, especially those on the conference committee, or more likely their education aides, and ask them to remove the troublesome amendments from the conference committee's version of ESEA.
WORKING EFFECTIVELY OVER THE LONG HAUL TO MAINTAIN HOMESCHOOLING FREEDOMS
Serious as the threats from the amendments to H. R. 6 are, figuring out how to work effectively over the long haul presents an even greater challenge. Some suggestions homeschoolers may want to consider:
* DEVELOP A LONG-TERM STRATEGY FOR MAINTAINING HOMESCHOOLING FREEDOMS
Deciding what action to take will be much easier, especially under the pressure of what others may claim is a "crisis," if we have a clearly defined long-term strategy. Points that might be included in such a strategy include:
* Understand and share with others information about parental rights and responsibilities in education, especially concerning the limited authority the federal government has in education. Develop a working knowledge of current educational and parental issues that might impact on parental rights and responsibilities so we can make good decisions about these issues, are not drawn into counterproductive actions, and can represent ourselves well.
* Focus attention on the state and local level as we work to maintain the freedoms homeschoolers have reclaimed there.
* Oppose the federalization of homeschooling. At present homeschoolers are protected from federal control by the constitution and the statute quoted above. We need to understand and claim the freedom we have now rather than trying to get unnecessary exemptions from federal legislation, especially since such exemptions could cost us our freedom.
* Do not rely on the courts. The consistency with which homeschooling court cases have been lost during the past 13 years should serve as a strong indicator that the courts are not the place to win or maintain basic homeschooling freedoms. (Note: Some lawyers have claimed "victory" in cases which we the authors feel have clearly been lost. Some lawyers claim victory in nearly any case in which the court does not jail the parents and/or strictly forbid the family's homeschooling, while we consider a case lost if it upholds unreasonable and unnecessary state regulation of homeschooling.) In fact, it can be easily argued that lawyership in the courts has cost homeschoolers much more freedom than it has gained them.
(For more information, see the Taking Charge column, "Citizenship or Lawyership," in HEM, September-October, 1993, pp. 17-24 and the 62 page document Recent Court Cases Examining the Constitutionality of Other States' Laws Regulating Home Schools, written by Jane R. Henkel, Senior Staff Attorney for the Wisconsin Legislative Council, dated November 21, 1990. Copies are available at no charge from the Wisconsin Legislative Council, Post Office Box 2536, Madison, WI 53701-2536; 608-266-1304.) This report states that: "Special care was taken to attempt to find reported cases striking down state regulations. With the limited exception of cases which found regulations to be unconstitutionally vague, that effort was unsuccessful, which tends to indicate that there are few, if any, such cases." [p. 2])
* THINK CAREFULLY BEFORE TAKING ACTION
It is an enormous help to take time to assess a situation calmly and accurately before taking action. There are few true, unexpected emergencies in the legislative process. The vast majority of the time we can afford to take time to gather information and analyze it. In addition, the more of an emergency a situation is, the most important it is that we stop and think clearly, especially since we may not have much time for correcting mistakes.
The following steps can be used to analyze the legislative proposal. They are illustrated here by reviewing an analysis of the Miller amendment.
First, find out exactly what the proposal says. In our example, the Miller amendment read:
ASSURANCE-Each State applying for funds under this title shall provide the Secretary [of the U.S. Department of Education] with the assurance that after July 1, 1998, it will require each local educational agency within the State to certify that each full time teacher in schools under the jurisdiction of the agency is certified to teach in the subject area to which he or she is assigned. H. R. 6, Section 2124(e)
Next, analyze the proposal to determine to what extent and in what way it threatens homeschoolers. In the case of the Miller amendment, a number of points soon became apparent:
* The amendment sounded like it was intended to apply to public schools. This conclusion based on common sense was not enough to justify ignoring the amendment. As homeschoolers we need to be alert for seemingly small changes in a law which can, intentionally or unintentionally, affect us in a negative way. The problems raised by the second part of the Ford/Kildee and the Armey amendments, discussed above, are good examples of this. However, the Miller amendment appeared to be a somewhat unclear attempt to increase certification requirements for public schools, an amendment that could be clarified without too much difficulty.
* The Miller amendment applied to schools under the jurisdiction of local educational agencies. However, many of the homeschooling freedoms we have today exist because homeschoolers have accurately determined that we are not under the jurisdiction of local school officials. Therefore, the Miller amendment would not have applied to most homeschoolers.
* Also reassuring was the fact that before certification could have been required of anyone, including homeschoolers, individual states would have had to pass state laws requiring certification. The federal government does not have the authority directly to require certification of any teachers, in either public or private schools.
Consider how non-homeschoolers are likely to react to the proposal. Ask how it would affect others. Who would gain from it and who would lose? Who is likely to support it and who will oppose it? How likely is it to pass? Again in the case of the Miller amendment, the answers were reassuring.
* There would no doubt have been strong opposition from public schools to the Miller amendment. The certification requirements would have cost some teachers their jobs, since many public school teachers teach some classes in subjects for which they are not certified. This would have given teachers unions cause to oppose the amendment, allowing teachers to teach only subjects in which they were formally certified would have cost school districts a lot of money; significant increases in costs are seldom popular. In addition, progressive educators might have objected to a plan that flew in the face of recent educational reform initiatives such as team and peer teaching and ungraded and multidisciplinary classes. If homeschoolers had done nothing, the Miller amendment would have encountered strong opposition, and probably would not have passed in the House.
* But if the Miller amendment had been adopted by the House, we could have worked to keep it out of S. 1513, the Senate version of H. R. 6, and then to have it eliminated in the conference held to reconcile differences between the House and Senate versions of the bill.
* If the Miller amendment had become law, state legislatures would have had a hard time passing the necessary state laws to require such certification, especially given the opposition of teachers unions, school districts, and tax payers concerned about the added expense. (The Miller amendment applied only to Title II programs for teacher development which were authorized for an average of just over $5 million per state. This would be a very small part of state budgets for education, which average about $4 billion per state. It would be a relatively insignificant enticement for the huge political capital required to try to pass such a law.) Legislatures would also have had a very difficult time passing laws that required certification of private school teachers. The independence of private schools is a strongly held tradition with legal support. It seems highly unlikely that state legislatures would have tried or been successful in using the Miller amendment as the basis of new legislation requiring certification of only homeschoolers.
Based on this analysis, the most reasonable approach would have been to request that the House Education Committee clarify the Miller amendment so that it applied only to public schools. Unfortunately this reasonable approach was lost in the overreaction to the Miller amendment that was generated in large part by the Home School Legal Defense Association (HSLDA). A basic understanding of the federal government's authority in education and how it operates, would have made it impossible to take seriously the opening statement of HSLDA's "Urgent Alert!" of February 15, 1994, which said "H. R. 6, the Elementary and Secondary Education Act will require home school parents (and all private school teachers) to be certified teachers." On page 1, HSLDA claimed, "This bill contains the most dangerous assault on the freedom of home schools and private schools ever seen in recent history. Specifically H. R. 6 contains a provision which may be interpreted to require all home school parents to be certified teachers, which is an effective ban on home education for more than 99% of all home schoolers."
Then what happened?
* The House adopted the Ford/Kildee and Armey amendments in an effort to get people to stop calling and faxing congressional offices because they were concerned about the Miller amendment. The second part of the Ford/Kildee amendment and the Armey amendment have the potential to do much more harm to homeschooling than the Miller amendment ever could have done.
* Many homeschoolers became upset and worried about a minor problem that could have been easily clarified. A great deal of time, energy, and money was spent in this unnecessary effort.
* Homeschoolers now have a strong reputation in Congress, but is it the reputation that we want? Have homeschoolers gained the respect of Congress as a diverse group of committed parents who understand issues and respond in reasonable ways?
* CHOOSE CAREFULLY WHICH ORGANIZATIONS TO SUPPORT
-Another step in working effectively over the long haul to maintain homeschooling freedoms is to find or create networks of homeschoolers with whom we can work. Our work will be much more effective if we are thinking, planning, and acting with others.
-Homeschoolers who oppose the federalization of homeschooling may want to consider evidence that although HSLDA opposes Goals 2000, OBE, and other federal initiatives that would federalize education in general, some of its actions, for whatever reason it has chosen them, have contributed to federalization of homeschooling. The following points may be considered:
The "Urgent Alert!" that HSLDA faxed and distributed throughout the country on February 15, 1994, stated, "CONGRESS WILL REQUIRE HOME SCHOOLERS TO BE CERTIFIED TEACHERS." This overreaction to the possibility that the Miller amendment could be used against homeschoolers also gave homeschoolers and others the misleading impression that a single act of Congress could take away the freedom to homeschool.
HSLDA was unwilling simply to clarify the Miller amendment. It was invited to support a clarifying amendment proposed by a coalition of 14 national homeschooling organizations that would have clarified the Miller amendment so that it would not have been a threat to private schools, including homeschools, but that would not have opened the door for writing federal regulations for "home schools." HSLDA refused to support this amendment.
HSLDA was unwilling simply to have the Miller amendment removed from H. R. 6. Instead it worked for and was clearly pleased with the Armey amendment that is increasing the risk of federalization of homeschooling.
Homeschoolers have worked out agreements in all 50 states and in over 15,000 school districts as to how they will homeschool, agreements that are now working well in most cases (of course, there will always be a few problems, and in some cases the agreements include non-compliance or civil disobedience). But by supporting the Armey amendment, HSLDA appears willing to exhange these carefully worked out agreements for one federal statute that could disrupt these agreements and give the federal government power over homeschools that it does not now have.
The reason homeschoolers need to work at the federal level now to remove dangerous federalizing amendments from H. R. 6 is that HSLDA and others overreacted to the Miller amendment and then proposed and supported these amendments instead of simply clarifying the Miller amendment or having it deleted.
The actions HSLDA is taking are affecting all homeschoolers. Whether HSLDA is acting out of good intentions, misunderstanding, or a desire for power, the effect is the same. Homeschoolers who value their freedom to homeschool and who oppose the federalization of homeschooling would do well to consider the effects of HSLDA's actions. Many homeschoolers are working to oppose the Ford/Kildee and Armey amendments. Just prior to the close of the conference committee's work on Goals 2000 (another federal education bill currently being acted on by Congress), homeschoolers from around the country, not working through HSLDA, were successful in having the Burns amendment removed. The Burns amendment said "Nothing in this act shall be construed... (9) to mandate any curriculum framework, instructional material, examination, assessment or system of assessments for private, religious, or home schools." [Quoted from: Section 402 of the Goals 2000: Educate America Act as printed in the Congressional Record, p. S1436 on Feb. 10, 1994.]
Homeschoolers do have a choice.
* OPPOSE FEDERAL PROGRAMS BY WORKING ON THE STATE AND LOCAL LEVEL
We can oppose federal programs on the state and local level by working to prevent their adoption and by refusing to participate in them if they are adopted. For example, we can work with our local school boards to resist pressure to adopt outcome-based education. We can refuse to take our children to preschool screenings, which are still voluntary in almost all states, even though the promotional literature often gives the impression that they are mandatory. We can work for legislation to allow parents to have their children exempted from state-mandated tests and assessments.
* FIND RESOURCES THAT WILL PROVIDE ACCURATE INFORMATION
Here are some suggestions:
The Congressional Record, a verbatim report of what happened on the floor of the U. S. House of Representative and Senate, may be purchased for $1.50 for one day's Record by calling 202-783-3238.
For information about legislation (bill numbers, status, etc.), call 202-225-1772.
To receive a copy of a House bill, ask your federal representative or call the House Documents Room at 202-225-3456. Senate bills are available through U. S. Senators.
In considering the question of federalization of homeschooling, we homeschoolers need to ask whether we want the homeschooling movement to go the way of the teachers unions and many other special interest groups in this country. Specifically, do we homeschoolers want to adopt centralized forms of power, allow homeschooling to be defined by one uniform definition, rely on a handful of experts to represent us, look to authorities to take care of us, and ask the government to protect and serve us at the expense of our freedom? There is another way to try to protect homeschooling freedoms, a way that will result in maintaining our freedoms rather than surrendering them. That way is to work as individuals and as a grassroots movement to understand and exercise our rights and responsibilities as parents.
If we are going to maintain our homeschooling freedoms, we need to watch out for forces that would federalize homeschooling. Currently two such forces exist: The first is new federal education programs that would increase government control of education in general and could easily sweep homeschooling along with it. These programs can best be opposed at the state and local level. Second, several amendments that have recently been added to H. R. 6 would work to federalize homeschooling. If we act now to prevent such amendments from being adopted, we will be in a much better position to maintain our homeschooling freedoms. In addition, there are important things we can do now to prepare for future challenges from forces that would federalize homeschooling.
© 1994, Larry and Susan Kaseman
Originally published January-February 1991 issue Home Education Magazine.
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