Wednesday, January 21, 2009

Why homeschooling laws are unnecessary

Proposed legislation at the state capitol seeks to address the problem of "homeschooled" children who aren't necessarily receiving a good education (see 'Two bills raise red flags among Oklahoma homeschoolers').

These bills are unnecessary. Thomas J. Schmidt, an attorney for the Home School Legal Defense Association, explained why in a February 17, 2007 memo:
In accordance with Oklahoma law, a parent has the option of sending their child to a public or private school or providing other means of education. However, providing no means of education is not an option. When a parent seeks to provide other means of education, they must comply with several applicable statutes. Additionally, Oklahoma has a history of case law that governs how a parent is to provide other means of education to their child.

Sheppard v. State, 306 P.2d 346 (Okla. Crim. App. 1957) held that the question of whether the instruction "was adequate and comparable to the instruction given in public school" was essential to the determination of whether other means of education was in fact being provided. Instruction that is "wholly inadequate" to that provided in the public school would establish a prima facie case of a violation of 70 O.S.A. § 10-105. Sheppard v. State, supra.

When a parent fails to send their child who is compulsory attendance age to a public or private school and does not provide other means of education then they are subject to criminal prosecution.

Under O.S.A. § 10-105 it is primarily the duty of the attendance officer of the local board of education to enforce the compulsory attendance provisions of Oklahoma law.

Once the attendance officer obtains information and evidence that a parent is not providing other means of education, it is his duty under O.S.A. § 10-105 to initiate criminal prosecution against the parent.

In order to establish a prima facie case of a violation of Oklahoma compulsory attendance laws all that is required is that (1) defendant is a parent, guardian, custodian or has control of a child or children who (2) are over 5 and under 18 years of age; (3) neglect or refusal of defendants to cause child or children to attend some public, private or other school unless other means of education are furnished for (4) the full term the schools of the district are in session. See Sheppard v. State, supra.

Once a prima facie case has been shown to overcome the defendant's presumption of innocence the burden shifts to the defendant to provide evidence that they have provided other means of education that is equivalent to that of the local public school and provided in good faith. See Wright v. State and Sheppard v. State, supra. While a parent has the choice under Oklahoma's constitution and laws to send their child to a public or private school or provide other means of education, they have a responsibility to ensure that their child is receiving an education. Failure to carry out this responsibility could subject the parent to court action and substantial fines for each day they have failed to provide for their child's education.

Based on our review of Oklahoma, we find that the current statutory and case law governing a parent's duty in exercising their constitutionally protected right to provide for other means of education for their children is sufficient to ensure that the child receives an education that is equivalent to that of the public schools. Any parent who does not provide a proper instructional program given in good faith and equivalent to the instruction given in the public schools will face criminal prosecution and be subjected to judicial scrutiny.

UPDATE: More information here.

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