This is
the third of a series of bulletins NHELD is preparing detailing, section by
section, the exact language of HR3753/S1691, the “Home School
Non-Discrimination Act of 2005”, or “HoNDA”, as proposed in the House and
Senate. The bulletins will provide the
exact language from the bill, along with the exact text of the existing federal
law that the bill proposes to amend. The
bulletins will also include NHELD’s comments on those provisions. The first bulletin was Bulletin #44 - HONDA Re-Introduced Examining Sections 1, 2 and 3
issued 10/17/2005, and the second bulletin was HONDA Re-Introduced examining Section 4(a) issued 01/23/06.
NHELD is
opposed to passage of any and all parts of this legislation. NHELD believes the entire bill should be
killed and all previous federal laws already adopted having anything to do with
the rights of parents to instruct their children at home should be repealed.
NHELD
believes that there can be no compromises on any federal legislation regarding
the rights of parents to instruct their children at home.
NHELD
believes all federal legislation regarding the rights of parents to instruct
their children at home, no matter how beneficial the legislation appears, is
wholly unconstitutional, in violation of the Tenth Amendment to the
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Do you know what Section 4(b) of the HONDA bill
does? Let’s go through it and decipher
the substitution language requested.
(a) Clarification of Institutional Eligibility- Section
101(a)(1) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)(1)) is amended
by inserting `meeting the requirements of section 484(d)(3) or' after `only
persons'.
(b) Clarification of Student Eligibility- Section 484(d) of
the Higher Education Act of 1965 (20 U.S.C. 1091(d)) is amended by striking the
heading and inserting `Satisfaction of Secondary Education Standards'.”
This bulletin examines the second
part of Section 4 of the HoNDA bill, subsection (b), and that subsection
purports to amend another portion of the Higher Education Act. That portion is Part F, of Section 484(d)
entitled “General Provisions Relating to Student Assistance Programs.” It is codified in the law as 20 U.S.C.
Section 1091(d). It can be found
at: http://www.access.gpo.gov/uscode/title20/chapter28_subchapteriv_partf_.html and
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+20USC1091
The portion of 20
U.S.C. Section 1091 as it reads today is reprinted here with the portion to be
amended underlined:
TITLE 20--EDUCATION CHAPTER 28--HIGHER EDUCATION RESOURCES AND STUDENT ASSISTANCE SUBCHAPTER IV--STUDENT ASSISTANCE Part F--General Provisions Relating to Student Assistance Programs Sec. 1091. Student eligibility As can be seen, if Congress adopts
Section 4, subsection (b), of this bill, HR3753/S1691, then only the heading of 20 U.S.C. 1091 would be changed. The current heading would be stricken and
another heading would be put in its place such that the statute would read as
follows:
TITLE 20--EDUCATION CHAPTER 28--HIGHER EDUCATION RESOURCES AND STUDENT ASSISTANCE SUBCHAPTER IV--STUDENT ASSISTANCE Part F--General Provisions Relating to Student Assistance Programs
Sec. 1091. `Satisfaction
of Secondary Education Standards'.”
Of course, the reasons why only the
heading of this law would be changed are not given by the sponsors or promoters
of this legislation.
What is NHELD’s opinion of this
section of the bill?
This is an example of an amendment
of a law that already as it exists is clearly unconstitutional and
unnecessary. Students who were educated
by their parents at home were always “eligible” to be admitted as college
students, and as admitted college students, were always “eligible” for receipt
of federal student loans. As it always
does, the federal government placed certain restrictions on students and on the
colleges in order to receive federal funding.
A student was required to be attending a college of some kind. The money
was to be used strictly for educational expenses and to obtain further federal
funds, a student was required to maintain a certain grade point average. A college was required to admit students who
received a “certificate of graduation” or “the recognized equivalent” of such a
certificate. Before very recently, the
federal law made no mention of how the student was educated prior to
acceptance in the college. Now with this
change, however, it does. Before, the
language in the statutes were sufficiently ambiguous to allow colleges to
accept “homeschooled” students based either on what the college deemed
appropriate credentials or what the state deemed appropriate. Since HSLDA’s involvement in the adoption of
these new federal laws, the federal law now specifically refers to students as
those who have “completed a secondary school education in a home school
setting that is treated as a home school or private school under State law.”
This phrase now appears in Sec. 1091
d(3) regarding students who are not high school graduates regarding their
eligibility for student assistance, as well as in other statutes unrelated to
this one.
The problems associated with that
language are many. First, let’s take the
phrase, “completed a secondary school education”. What is a secondary school education? Is that one that is identical to the
curriculum provided in a public school?
If so, is it the curriculum provided in the public school in
What is a “home school
setting”? Is it the “setting” in the
home of the parent or is it the “setting” in a “public school at home”
setting? Who will determine whether the
child was educated in such a setting?
Or, how about the phrase, “that is
treated as a home school or private school under State law.” What does “that is treated” mean? and
“treated” by whom? Treated by the local public school superintendent, the
principal, the state Department of Education, or the parents?
And what about “treated as a home
school or private school”? What is the
definition of a home school? Is it a
definition as yet to be determined by the Congress or the Secretary of Defense
(thanks to HSLDA’s insertion of section 591 into hr1815 Defense Bill ), or is it
the definition in
Finally, we come to “under State
law.” The plain fact of the matter is
that parents in several states instruct their children at home legally but the
state law does not talk of “home school” and does not consider what the parents
do to be a “private school”. In other
words, the parents in these states instruct their children freely without
having any state statute interfere with that right or describe the education as
a “home school” or a “private school.”
With all of these differences from state to state, ultimately, the
federal government, likely still at the behest of HSLDA, will adopt one
definition of “home school” that will apply to all fifty states effectively
rendering null and void the state law applicable to the rights of parents to
instruct their children at home as it exists now, thanks to the Supremacy
Clause of the U.S. Constitution.
HSLDA cited the “need” for insertion
of language in the federal law regarding the “eligibility” of homeschooled
students and the “eligibility” of institutions of higher education and their
ability to continue to receive federal funding because certain individuals in a
particular college told parents of certain homeschooled children they were not
“eligible” to attend that college without a diploma lest the college lose its
federal funding.
There were and are other solutions
to such a problem.
(1) Educate those denying access as
to what the law actually says or said at the time;
(2) Advocate for less specific
language in the law leaving it to the discretion of the institution;
(3) Advocate for language in the law
preventing denial of federal funding to institutions that admit homeschooled
students; or
(4) Have the homeschooled students
being denied access to one institution simply apply to another institution
willing to admit homeschooled students.
Instead of doing any of these
alternatives, HSLDA advocates the insertion, into still more laws, of language
directly affecting the rights of parents and students who homeschool. Even a law that purports to “help”
homeschoolers ultimately may, and will, have such consequences as to deny
parents their ability to remain free of government interference and/or to
affect legislation at the state level that will assist them to remain free.
The change in the heading of that
portion of the Higher Education Act from “Student Eligibility” to “Satisfaction
of Secondary Education Standards” is ominous.
If the federal government is going to provide students with loans and
grants, it is quite natural for the government to determine who is eligible for
that money. To change the heading of
that section to “Satisfaction of Secondary Education Standards”, one has to
ask, does this foretell of more government intervention in the future? Does this mean that the government will
demand that students “satisfy” certain “standards” in their curriculum as
homeschooled students before they are able to obtain federal funding? One also has to ask, why would HSLDA actively
promote such a change?
Help us defeat this bill and to
repeal all other federal statutes that refer in any way to the rights of
parents to instruct their children at home.
Distribute this information to others, inform your Congressmen and
Senators and ask them to defeat this bill and all others that come before them
on these issues.
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