The Devil in the Details
By Barry Peters (2012)
Homeschoolers in Idaho have more freedoms than anywhere else on earth. That's the good news.
However, when liberties are absolute, well-meaning people will tend to meddle. Some intentionally and some not. But diligence in the defense of our independence is crucial if our liberties are to be maintained.
Recent events illustrate how easy it is for our remarkable freedoms to be eroded.
During the 2012 legislative session, Senate Bill 1358 was introduced as a tool to combat bullying in school. Since everyone wants to eliminate bullying in the public schools, this bill should have enjoyed little resistance.
Fortunately, when it was initially introduced in the Senate Judiciary and Rules Committee, the bill's sponsor was asked if it applied to homeschoolers. The gentleman who asked this important question was Senator Steve Vick (R-Dalton Gardens), a homeschool father himself. Senator Nicole LeFavour (D-Boise), the bill's sponsor, responded that she "certainly hoped so."
Once the sponsor's intentions were out on the table, the ICHE and HSLDA attorneys went to work taking a critical look at the bill. What they found was alarming.
The bill would have significantly increased the bureaucratic demands on all Idaho schools in response to bullying incidents among students. Detailed school bullying policies would be required. Teacher training for dealing with bullying incidents would be expanded substantially. Annual reports by the schools to the Idaho Department of Education would also be mandated.
For those who are convinced that it takes a village to raise a child, this proposal undoubtedly seemed like a significant step in the right direction. But those who were satisfied with current laws mandating the punishment of school bullying viewed the bill as another example of bureaucratic overkill.
For the homeschool attorneys, coming to grips with the sponsor's intention to impose this framework on homeschooling families was a frightening prospect. To grasp the magnitude of this intrusion, it is important to understand the loose definition of "bullying."
What kinds of things would be regarded as bullying? Under current law, every injury or other harm to any person or property caused by a student at school is automatically bullying. And even just a student's threat of injury to person or property is also bullying. Likewise, any intentional "harm" to another student's self-esteem falls under the definition of bullying.
If applied to homeschools, here are some of the things the bill would have required:
- Detailed written policies against bullying including the procedures by which your children can report their sibling's bullying, presumably to mom
- Gradated consequences for bullying potentially including suspension or expulsion of your bullying student from his homeschool
- Required intervention by school personnel (mom) in every instance of bullying
- Policy designating to whom mom's bullying reports are to be submitted (dad?)
- Mandatory annual training for school personnel (mom & dad) in how to deal with incidents of bullying
- Mandatory annual reports sent to the Idaho Department of Education summarizing all of the bullying incidents that occurred in the school
To illustrate the magnitude of this potential intrusion into your home and family, imagine driving down the highway in your minivan. Your 6 and 8 year old sons are in the back seat. The older one calls the younger one a "dork" and they get into a wrestling match. In the process, your 6 year old accidentally gives your 8 year old a bloody nose.
Regardless of the circumstances, both sons would be guilty of bullying under this bill. The older one for the harm to the younger one's self esteem that arose from the name-calling. The younger one for the bloody nose he caused.
If you failed to respond in the manner required by your written anti-bullying policies, you would be in violation of the law. And if you failed to report this incident to the Department of Education, you would likewise be acting illegally.
Because of this bizarre result, ICHE and CHOIS stepped forward and objected to the bill. Several members of the Senate committee agreed and the bill was sidetracked for amendments to make it clear that the bill did not apply to homeschoolers.
At the request of several of those senators, ICHE and HSLDA sent a suggested minor modification to the bill's sponsor which would have made it clear that the bullying rules and bureaucracy would only apply in the public schools.
The sponsor failed to include that language and substituted her own exclusion that only applied in "home school settings." But that term was never defined. It could have meant that only bullying that takes place in the family's home itself was exempted from the statute. The name-calling and the bloody nose in the minivan would not fall into this narrow exclusion and the parents could have been required to report that incident to the state under the sponsor's modified language.
Once again, the ICHE and HSLDA attorneys made another proposal to the sponsor that would have exempted homeschool families from the bill, regardless of the setting in which the injury occurred. And once again, she ignored this suggestion and pressed forward with her flawed exclusion.
At that point the bill was passed in the Senate and sent to the House where it was assigned to the House Education Committee. ICHE requested that our members send emails to the Speaker of the House and to the Chairman of the Education Committee asking that the bill be held until the sponsor responded to our concerns.
Since the sponsor failed to address the homeschooling issue any further, the bill was held by the committee chairman, Representative Bob Nonini (R-Coeur d'Alene), where it died a short time later at the end of the session.
The second incident that illustrates the ways in which homeschoolers' independence can be jeopardized came to light a couple of weeks ago.
A homeschool mom, was doing research to ensure that her son would be able to apply for scholarships when he graduates from high school in four years. She was told by financial aid officers at two of Idaho's colleges that, after this coming July, homeschooled students would be required to get a GED certificate before they could participate in most financial aid programs. This change was, she was told, mandated under the federal financial aid clearinghouse known as FAFSA.
In many circles, a GED is viewed as confirmation that a student's academic performance has been less than optimal. Requiring homeschool students to obtain a GED certificate would tend to brand them as marginal students in those circles.
This mom was also told by a representative of one of Idaho's virtual charter schools that this would be a good reason to enroll her son in that public charter school instead of privately teaching him at home.
When this new "rule" was brought to our attention, the attorneys at ICHE and HSLDA again went to work. It was quickly recognized that this reading of the new "rules" was an urban myth that was making the rounds at various educational organizations. But as is true of most urban myths, it has been hard to stamp out.
In this case, the matter was taken up by ICHE attorneys with the Idaho Board of Education which has historically honored the independence of Idaho's homeschoolers.
A simple solution to the misunderstanding that spawned this myth was proposed. All that was needed was an administrative rule confirming that home schooling in Idaho is fully legal under state law.
But the initial draft of the needed administrative rule went further than required. It confirmed that home schooling is permitted in Idaho. But then it also gratuitously threw in a statement that homeschoolers were required to teach for the same hours that public schools are in session and are required to teach the same subjects that are taught in the public schools.
Again, the devil was in the details. If the first draft of the rule to fix the FAFSA misinformation had been approved, the autonomy that homeschoolers enjoy under Idaho law would have been seriously compromised. The administrative rule would have inflicted the same subject matter and instructional time requirements from which homeschoolers were intentionally and expressly freed under the statute.
So, once again, efforts were brought to bear by the homeschool attorneys to eliminate these extraneous requirements and leave only the clarification needed to enable homeschooled students to compete for FAFSA financial aid and scholarships on a level playing field.
As of the final writing of this article, the language of the administrative rule is still being discussed. But we are cautiously optimistic that an acceptable compromise will be made by the staff at the Board of Education and that the FAFSA urban myth will be dealt with effectively.
But this discussion once again underscores the need for vigilance and attention to details by Idaho's homeschooling community. Had it not been for Senator Vick and the homeschool mom preparing for her son's college years, our state's great freedoms could have been eroded one small step at a time.
Barry Peters is an attorney in private practice with offices in Eagle, Idaho, and is one of the legal advisors for both ICHE and CHOIS. His law practice focuses on the areas of wills, trusts, probate, real estate contracts, and business formations.