Home Schooling: Special Education & Accommodations

Home Schooling: Special Education & Accommodations

September 5, 2019 0 By Ronny Jaskolski


As we’ve talked about, the area
of homeschooling and the law surrounding it is so
all over the place. It’s all over the map. And it varies dramatically. When you read the cases on the
subject, Julie, it varies based on what state the
student lives in. It varies based on every fact in
the case from the family’s religious views and whether
they’re impacted by the decision to home school, to
whether other children in that town, or in that district, or in
that state are entitled to certain services if they do not
have disabilities, to what the practice and policy is
of that school district. It’s just so fact-specific and
so state-specific that it’s really difficult to come up with
any hard and fast rules for parents to rely on when
it comes to homeschooling. So I’m just going to cover
a few that are pretty well-settled and understand that
it may vary dramatically based on your individual
child’s case. So let’s start with this. As a general rule, parents have
the right to home school. All parents have that right. And that’s based on an analysis
of our Supreme Court, going back to a case called
Wisconsin v. Yoder, for anyone who’s interested. That basically says that parents
have that right to make the decision to home
school their children. So obviously, you cannot give
that right to parents of children who do not have
disabilities and not give that right to parents of children
who do have disabilities. Because that would be
discriminatory. That is one example among many
of where section 504 of the Rehabilitation Act, which
is an accommodations and discriminations law, with this
very tricky whole statute, but in essence is that. And it covers accommodation in
our public schools and in any entity that receives
federal funding. That’s why 504 impacts
homeschooling. Because an example might be
your school district might permit families who reside in
your town, but who do not enroll their children in the
public schools because they’ve chosen to enroll their children
in a private school, a parochial school, for example,
or just a private school in general, to
participate in extracurricular activities of the
public schools. That may just be your
town’s policy. Well, they can’t say that they
allow that for some families but not for families of children
who home school, particularly if it impacts any
kind of religious right or religious freedom. So it gets really dicey when you
get into these examples. But 504 may impact special
education, and homeschooling, and accommodations, and
discrimination, so that law still exists, regardless of
whether your child is homeschooled. The IDEA, which is a special
education services law, which we talk about all the time,
the IDEA in general, once you’re homeschooling your child,
the school district’s IDEA obligations are
pretty few to you. Because you have elected not
to avail yourself of the public schooling. You may be entitled to some
other kinds of services, and there are some IDEA obligations
which remain even on children who reside in a
school district, even if the parents are homeschooling, like
the school district’s child find obligations, meaning
their obligations under the IDEA to find any
children who reside in their district who might have
disabilities and who need to be evaluated for whether
they have a disability. So it’s not so clear cut,
yes, it applies. No, it doesn’t apply. Certain obligations remain. And then we get into a lot of
tricky fact-specific issues. But it really does depend, and
what I would suggest to any family who has a child or
children with disabilities, who is either homeschooling
their child or is considering it, get started by looking at
your own state’s department of education website and see if
they have any links or resources for families
who homeschool. You know, clearly this is
a very complicated area. And you as an attorney gen, or
even struggling to sort of how do we talk to parents about
these types of issues, and it really is very complicated. And like Jen said, you’ve got
to check with your state and make a decision as to what to
do depending on your own personal decisions and the
facts of your state.