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Attorney Deborah G. Stevenson, Executive Director


Bulletin #62     S. 3076: Home School Opportunities Make Education Sound Act of 2008   06/18/08



Did you know? that once again, parents are faced with the prospect of yet another bill proposed in the United States Congress that would result in another federal law governing home schooling?


On June 3, 2008, Senator David Vitter, a Republican from Louisiana, introduced S. 3076: Home School Opportunities Make Education Sound Act of 2008. The text of the bill can be found at:


 Once again, we are faced with a bill that purports to “assist” parents by providing them with a “tax break” allowing deductions for the expenses parents incur to provide home schooling.  Once again, the bill appears beneficial and harmless.  Unfortunately, once again, NHELD must oppose this bill, and urge others to oppose it as well, because it is unconstitutional for Congress to adopt such a bill, and because it has serious unintended consequences.


As NHELD repeatedly has stated, all federal laws regarding home schooling are unconstitutional.


The tenth amendment to the United States Constitution says:


“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”


The power of regulating educational issues is not delegated to the United States by the Constitution, nor prohibited by it to the States.  Therefore, the power of regulating educational issues is reserved to the States respectively, or to the people.


How, then, does Congress adopt statutes affecting educational issues?  They do so utilizing the Supreme Court’s interpretation of other sections of the Constitution: Article I, section 8, otherwise known as the so-called “tax and spending” clause and the “commerce clause” of the Constitution.  Those provisions state:


“The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the Unites States…[and] To regulate Commerce with foreign Nations, and among the several States…”


The Supreme Court has interpreted those clauses to mean that Congress can adopt laws to spend the tax money they collect for purposes to promote the “general welfare”.  In essence, Congress adopts a law telling states it will provide the states with a certain amount of money, if the state agrees to certain conditions, such as adopting a state law reflective of what the Congress would like to implement.  That’s how the No Child Left Behind Act was adopted, and many other such laws.  Of course, if they wanted to do so, states may decide not to agree to the conditions, refuse to accept the federal money, and not have to obey the federal law adopted.


     In the case of parents who home school, when parents do not receive any federal money, or federal benefit that a court could construe as “federal money”, Congress has no constitutional authority to adopt any federal law regarding home schooling, no matter how good the law purports to be.


     What exactly would this new bill do?  It would allow parents to deduct from their federal income taxes expenses paid for their home schooling. 


What is wrong with that?  Several things.

1. As explained above, it’s unconstitutional.

2. Congress has no authority to adopt any such law.

3. There are significant unintended consequences:


a) The bill does not define the term, “home school”.  Right now, there are many definitions of the term, “home school”.  For example, does the bill affect those “home schools” that are operated by the public school system in which students must participate in the curriculum generated by the public school but may follow that curriculum at home, or does the bill affect those “home schools” that are considered “private schools”, or does the bill affect those “home schools” that are affiliated with correspondence schools, or does the bill affect those “home schools” that are independently run by individual parents alone? The bill does not answer those questions.


b) Who will decide what the definition of “home school” is?  The IRS, the Congress, each state’s legislature, the courts?  Again, the bill does not specify.


c) Who will decide what expenses “qualify” as deductible?  Answer:  the IRS.  That’s because the bill calls for “rules” to be established.  “Rules” are promulgated by the agency that will implement the law.  In this case, that’s the IRS.


d) How will the IRS decide what expenses “qualify”?  First, one would assume that the IRS has to establish whether the education being provided “qualifies” as “home schooling”.  Then the IRS would establish whether the expenses “qualify” as deductible. Do you want the IRS to be in charge of establishing what “qualifies” as “home schooling”? The IRS would have the authority to establish arbitrary “rules” as to what constitutes “home schooling” and what parents would have to do to establish that their expenses “qualified” as deductible.  What those rules will say, no one can predict.


e) What happens if the IRS, Congress, or the courts make a determination that the term, “home school” means X, and the term, “home school” in your state actually means Y?  The “home school” law in your state defining “home school” as Y would become null and void.  That’s because of the supremacy clause of the Constitution.  That clause, Article VI, says: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  The Supreme Court has interpreted that clause to mean that in a case where a state law conflicts with a federal law, the federal law reigns supreme, and the state law is rendered null and void.


     The bottom line is that any federal law regarding “home schooling”, whether its content is beneficial or not, eventually will be construed to define the term, “home school”, at some point.  If that term is defined as conflicting with any of the definitions of that term in existing state laws, those state laws will become null and void and all parents may be required to “home school” only under the federal definition of “home schooling”, whatever that definition may be.


     While on the face of it, many people might want to take advantage of a tax break offered under this new bill. Parents should ask themselves before succumbing to the enticement, however, what will this cost in terms of my freedom to home school in the long run?   What will it cost in terms of my children’s freedom to home school their children in years to come?  Is a tax break, or any federal benefit, worth the loss, or potential loss, of liberty?


     NHELD continues to believe that any such federal benefit is not worth the loss of freedom.  Freedom lost is too difficult to regain. In fact, today, it is seldom, if ever, regained.


     Before we leap into accepting any more federal “benefits”, let’s take a step back and think.


Why was this bill introduced? 

Was Senator Vitter asked by someone to introduce it?

Who asked him to introduce it?

This is not the first bill that has been introduced in Congress to accomplish the goal of providing tax breaks to parents who home school.  Several similar bills have been introduced in the past and have not been adopted.  Among them was the Home School Non Discrimination Act, or HoNDA.  One provision of that bill would have done precisely the same thing that this bill purports to do.

Who was responsible for asking Congress to introduce HoNDA?   Another national home school organization was responsible; Home School Legal Defense Association (HSLDA).

Why did HSLDA ask Congress to introduce HoNDA, or any of the myriad of other bills it has proposed to Congress regarding home schooling? 

If federal laws that conflict with state laws could mean that those state laws would become null and void, why is HSLDA asking Congress to adopt federal laws? (Currently there are 6 federal bills that HSLDA supports).


Inevitably, when parents in the state whose law is being deemed null and void attempts to fight the nullity of the law, more court battles will ensue, and more bad precedents may result.


Parents in California understand the risks and potential detrimental outcomes of court battles.  They are in the middle of one right now over the definition of “home schooling” on the state level. 


Do we really need to engage in a nationwide court battle on the federal level with the Supreme Court ultimately deciding the fate of every homeschooler in the nation?


Why do we need to risk destroying our freedom like this?


Is there really a nationwide constituency of parents clamoring at the door of our Representatives and Senators in Washington begging them to adopt federal legislation concerning home schooling?  Or, is there only one national homeschool organization, with strong political connections in Washington, convincing individual, well-meaning legislators to propose federal laws by telling them they would be “helping” homeschoolers?


Why does HSLDA want federal involvement in homeschooling?


We have no answers to these questions, but these questions need to be asked.


One thing is certain:  Federal legislation involving home schooling when parents do not receive any federal benefit is unconstitutional.  No federal law regarding homeschooling should be adopted.  Any federal laws that already have been adopted regarding homeschooling should be repealed.


What do you think about this bill, and what will you do about it?



Attorney Deborah Stevenson - Executive Director of National Home Education Legal or email :

Judy Aron - Director of Research, NHELD –