Parents who choose to home school cope with a number of disadvantages. These include isolation, the lack of opportunity to participate in scholastic sports and other extra curricular activities, and the lack of resources available in public schools, such as a library or instruction in specialized courses. In surveys, a majority of home school parents expressed the desire to have their children enroll in a public school on a part-time basis in order to take special courses that are beyond the parents' ability to teach or to participate in extra-curricular activities including athletics. Most of the litigation on part-time enrollment involves whether these children should be allowed to play on the athletic teams of public schools.
Opposition to access of public schools by those students not enrolled full-time is strong at the local, state, and national levels. Town and city boards of education, state athletic associations, and national trade groups, such as the National School Boards Association, have been against access by outside students because of fairness and administrative reasons. They argue the accessibility by non-enrolled students, including those home schooled, is unfair because since these students have chosen not to enroll, they should not be entitled to benefit from the limited resources of public schools. From an administrative point of view, the public schools would be faced with additional burdens such as providing supervision to a greater number of students participating in a class or activity and having perhaps to transport some students at times different from those of full-time enrolled students.
Furthermore, they argue that the U. S. Constitution does not provide a right for someone not enrolled in a public school to participate in any of its classes or other activities, including athletics. Home school parents have challenged these policies in the courts by using the Free Exercise clause of the First Amendment and the Due Process and Equal Protection provisions of the 14th Amendment.
Judges have, with few exceptions, been unreceptive to the claims of home school parents. Their unwillingness to grant the parents and their children what they want is based on the general principle cited by school administrators and others that there is no constitutional right to participate in any public school program, including athletics. Instead, whether a student is allowed to join a club or athletic team of a public school is a privilege local school officials can choose to grant or deny at their discretion. Courts agree with them that sports and other extracurricular activities are an integral part of a student's education in a public school, and this legitimate objective would be frustrated if students not enrolled full time were allowed to participate.
In regard to the specific constitutional arguments put forth by home school parents, courts have said that because there is no burden placed on the religious faith and practices of those in home schools, there is no violation of the Free Exercise clause. Fourteenth Amendment claims based on Equal Protection and Due Process have also generally failed. The interest of the public school officials in efficiently carrying out their administrative responsibilities outweighs any concern of the home school students' not being treated equally. Due Process claims also are usually unsuccessful because denial of access to public schools and their programs does not amount to a denial of a fundamental right under the U. S. Constitution. The liberty the parents are entitled to under the U. S. Constitution is inapplicable here because, since participation by home school children in public school activities and programs is a privilege that may be granted or denied, parents only have an expectation their offspring will be allowed to participate. Therefore, no constitutional claim under Due Process is viable.
In addition, courts view the parents' decision to educate their children at home as an exercise of their constitutional rights, and it is inconsistent for the parents to benefit from the public education they have chosen to reject.
A number of states have chosen to address this problem through their legislatures. Oregon, Idaho, and Florida have enacted laws allowing children educated at home to take part in what is offered by the public schools. Each of these states places conditions on these statutory provisions which may require submission to a greater degree of oversight and monitoring than home school students and parents would experience otherwise. For example, a student may have to submit additional documentation to prove to the satisfaction of local school officials that the state home school regulations are being followed. They may also have to obtain a designated minimum score on a standardized test considered credible by that state as well as to satisfy all the district eligibility and other requirements governing the behavior and performance expected of students enrolled full-time in public schools.
What is unique about the Florida statute is that it openly recognizes a state interest in the participation in public school programs and activities of students educated at home. This is significant because the outcome of many court cases involving children educated at home turns on the view of the courts as to whether the rights of these children are outweighed by the interests of the state in public education. Making participation an interest of the state may result in less opposition to the presence of students who are not enrolled full-time.
Other jurisdictions, such as Maine, provide for access to the public school by children educated at home by obtaining approval from the local school superintendent. The decision to allow a home school student to participate will continue to be made on a case-by-case basis. However, the Maine statute and others similar to it require the superintendent not to make these decisions arbitrarily.
Compulsory education laws and their impact on home schooling are subject to frequent changes in any jurisdiction. New laws passed by the legislature, administrative regulations handed down by those state agencies given the responsibility over educational matters, and new court decisions can all affect parents who educate their children at home. Organizations, especially the Home School Legal Defense Association, monitor closely new developments at the state and federal level. In addition, every state now has web sites where you can access court decisions as well as the code of laws for that jurisdiction. Many states have also made their code of administrative regulations available to the public. These materials are generally searchable by key words in court decisions, administrative regulations, and the code of laws. The best way to access these kinds of materials for a particular state is to log on to FindLaw. A number of links will appear that pertain to different categories of materials. Click on "State Resources" and separate links for each state will appear. A breakdown for each state will direct you to those separate links for the state code of laws, court decisions, and administrative regulations.
