Bulletin #40 Homeschools are judged as being schools 01/13/2005

Did you know? Judges have a new, unnecessary, and unwanted precedent to cite, to claim that “homeschools” are “schools”.

In November 2004, homeschoolers nationwide lost more freedom, as the United States Court of Appeals deemed homeschools were "schools" and "approved educational institutions". Sadly, HSLDA is shaping a federal definition of homeschooling, a definition that clearly is going to affect us all.

Back in March 1998, an offical opinion was issued by the Veteran’s Administration legal counsel that stated that homeschooling did not count as an “approved educational institution”. Their opinion was based on the how the term "institution" applied to homeschooling. This had to do with how the VA defines “child” and is further used to determine eligibility of some benefits. US Code Title 38 part 1 Chapter 1 101(4). http://assembler.law.cornell.edu/uscode/html/uscode38/usc_sec_38_00000101----000-.html

For a summary on benefits please see http://www.vba.va.gov/bln/21/summaryVAbenefits.pdf

In 1999 an issue came up involving the Theiss family in Wisconsin. They were homeschooling in full compliance with Wisconsin law. Apparently Mr. Theiss was concerned that there would be a change or loss of his benefits, when his son turned 18, because of that ruling and interpretation. Mr.Theiss was receiving benefits to care for dependent children and since his son had turned 18 but was not yet enrolled in a secondary institution, that benefit was being threatened because his son was being homeschooled as a high schooler. There is a small window of time for some kids between the time they have their 18^th birthday and the time they enroll in a secondary institution. This is where the definition of “child” in VA statutes is important.

With help from HSLDA, Mr. George A. Theiss appealed the previous VA ruling. He wanted the VA to include homeschooling as a valid and bona-fide "educational institution" so that he could receive benefits. The general counsel for the VA maintained through the ruling that since a homeschool operated for only one student (or a handful in any given home), it could not be deemed an educational institution. This definition was decried by HSLDA as being "too narrow" and that as a result some homeschooling families were being denied benefits. It was also argued that the ruling should have been publicized so that people could have commented on it. HSLDA prevailed in this case and, unfortunately, set the precedent for policy making and litigation when homeschoolers deal with Social Security, or other federal, state or local agencies. HSLDA’s desire, and the outcome, was to have homeschooling defined as an ‘educational institution".

So what’s the problem here? Surely we also want veterans, especially disabled veterans, and their families to receive the benefits that they deserve, but there was a much better way to deal with this issue. Perhaps the Theiss family could have requested the VA to just change its wording to say that disabled veterans can continue to receive benefits to help care for dependents as long as each child is a member of the household and is "being educated in accordance with state law". Why bring the whole issue of homeschooling into the language at all? If the intent of 38 USC 101(4)(a)(iii) is to insure that kids up to the age of 18 (or over the age of 18, until they complete their high school education) are still considered "children", and it is also meant to insure that the VA is not being defrauded (by wanting proof that these kids are receiving a valid education), then why not change the wording to make that more clear? http://assembler.law.cornell.edu/uscode/html/uscode38/usc_sec_38_00000101----000-.html

The more we have federal agencies labeling and defining homeschooling the more trouble we will bring upon us. The 10^th Amendment gives states autonomy and power to make their own decisions about education, and with regard to homeschooling that may even include their own definition. Some do not even mention the word homeschool in their statutes. The federal government has no right to define, regulate or otherwise deal with issues of education. To do so would force a blanket definition and set precedent for all states. Now this administrative/judicial decision may be used for its precedential value to influence other courts and legislators that, indeed, "homeschools" are "schools".

We should all understand that the word, "homeschool" is simply a recent label applied to a natural right that is as old as time and man. It is what modern society calls what individual parents always have done...instruct their own children. The act of an individual parent instructing his own child is a critical component of freedom. It is not something that is derived from government. To place an administrative or judicial seal on the label expanding the definition of that act to mean something that it never was and should never be is fundamentally and constitutionally unsound. It will truly remain to be seen how this definition given by the US Court could affect us in other areas. People think this will clear the way for us to get something more in tax credits, savings plans, benefits and other monetary ‘goodies" from the government. We feel strongly that it sets a very bad and dangerous precedent for homeschool definition, regulation and accountability reagrding those same agencies doling out those "goodies".

We should not, as HSLDA seems to be doing, be on a federal campaign to get homeschooling accepted on equal standing with public and private schools. We should not feel like we have to wear a badge of second class citizenry unless we are mentioned in federal statute along with the big boys. HSLDA is too concerned with trying to make us be "good enough". It is high time they stop pushing for us to be ‘equivalent" so that we can live by the same oppressive rules like testing, and curriculum standards used in the government schools. For some bizarre reason they think that they can gain equal standing for us without all of the chains that come with it.

Continued federal definition or legislation is not helping homeschooling in this country, even if one person or one hundred thousand people are being helped. It simply does not belong in the federal arena.

Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense. – www.nheld.com or email : info@nheld.com

Judy Aron - Director of Research, NHELD – imjfaron@sbcglobal.net

Thanks goes to Valerie Moon for contributing to this bulletin: http://www.militaryhomeschoolers.com/