Record: Alicia Kreh, “Where do We Belong: A Call for Consistency in Homeschooling Regulation” in University of La Verne Law Review 36 (2015): 237-273. [Contents here]
Summary: Kreh, an attorney in Fort Worth, TX, here presents an argument for norming state regulation of homeschooling by federal mandate. This article was published back in 2015 but escaped my noticed until recently. When she wrote it Kreh was still a student at the Michigan State University College of Law.
Kreh’s thesis is that the U.S. Congress should pass legislation that “creates a regulatory scheme that recognizes parental rights while encouraging consistent systems of homeschool regulations among the various states.” (p. 239-240) Those regulations should include required notification and monitoring of homeschooled children, including with testing comparable to testing required of public schooled students.
To arrive at that conclusion Kreh begins with a brief survey of homeschooling regulations around the world, focusing especially on Germany, Australia, and Denmark. Germany stands for restrictive nations, whose rules are so stringent that homeschooling is basically illegal. Australia stands for moderate nations. It allows the various Australian states to regulate as they see fit, and most of them require notification and regulate curriculum to some degree. Denmark stands for permissive nations. It explicitly gives parents the right to educate their children at home free of government oversight or regulation. Despite that, hardly any Danes homeschool their children.
Kreh then turns to a brief historical survey of U.S. homeschooling regulations, explaining that the Courts have granted parents the right to choose the manner of their children’s educations, but that they have also upheld the States’ right to regulate that education. She next looks at the actual regulatory situation. Every U.S. state has its own regulations, and many of those are very permissive. She acknowledges that sometimes homeschooling can produce remarkable results and provide an education custom-fitted to a child’s needs, but then she notes several arguments against the practice by critics.
After the brief summary of the pro/con arguments, Kreh surveys the state regulatory situation. It’s a big mess, with no consistency between states. Kreh explains that the federal government has successfully brought a lot of uniformity across states in public education by requiring conformity as a condition for reception of federal funds. She’d like to see something similar in state home education statues. But in the meantime we have, at one extreme, states like Michigan that don’t even require notice, and, at the other extreme, New York, which requires annual notice, submission of an instruction plan showing that prescribed subjects are taught, and submission of annual standardized testing, with accountability measures in place that could eventually lead to the end of homeschooling permission being granted for a repeatedly failing family.
Next comes a section summarizing the recent trend toward federal regulation of public education through federal legislation like the Elementary and Secondary Education Act, which in time became No Child Left Behind, and the Common Core State Standards. Kreh includes in her discussion here the widespread criticism these programs have received from many constituencies. Despite all of the criticisms, Kreh concludes this section by saying “Embarking on the task of creating homeschooling policy that would create consistency will require drawing from all the current federal education regulations.” (p. 264)
With all of this background in place, Kreh lays out her own proposal. We’re not Germany, so we can’t just outlaw homeschooling. We’re also not like Denmark, where everybody has the unfettered right to homeschool without regulation but schools are so good that nobody wants to do it. We’re more like Australia, where each state gets to set its own policy. But Australian states actually regulate homeschooling (and provide funding). Many of ours don’t. To change that, she would like to see the U.S. Congress pass a homeschooling statute mandating the following state requirements: required notice, state approval of a parent’s fitness to homeschool and approval of curriculum used, curricular requirements keyed to Common Core, and annual testing just like happens in public schools.
After laying out her proposal Kreh concludes, “Unfortunately, the actual implementation of such a policy would be difficult for various reasons,” ranging from criticism from HSLDA to the lack of authority for Congress to actually do this.
Appraisal: Long-time readers of this blog will know exactly what I’m about to say. There is absolutely no way Kreh’s proposal could become law, for exactly the reasons she identifies at the end. Homeschoolers themselves would go nuts and mount a massive public relations blitz that would rain down fire on whatever U.S. Congressperson might be foolish enough to try to create a federal law regulating homeschooling. Furthermore, as Kreh admits herself, the U.S. Congress has no legal standing to regulate homeschooling. Even if it were to somehow pass a law to that effect, the law would immediately be challenged in court and overturned as unconstitutional, which it would be. The only way the Federal government could get any leverage on homeschoolers would be to provide federal funding and then make use of those funds contingent on meeting certain requirements. While states have shown themselves to be incapable of resisting federal dollars even with all the strings attached, most homeschoolers wouldn’t even consider taking the money if it meant meeting requirements like what Kreh proposes.
A final point worth mentioning is that some very important things have happened at the federal level since Kreh wrote this piece. In 2015 No Child Left Behind was finally revised. The new federal law, named Every Student Succeeds, reduces the accountability mechanisms NCLB had put in place that proved to be so unpopular across the country. In bipartisan fashion, the U.S. Congress has rejected the regulatory regime of NCLB. The required annual testing remains, but there is tremendous opposition to it and to the Common Core State Standards from a wide range of people on both sides of the political spectrum. In our current climate a proposal like Kreh’s, even if it were legal, would get nowhere, because pretty much everybody is tired of federal micromanagement of education.
Milton Gaither
Messiah College