View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by UNL | Libraries Nebraska Law Review Volume 79 | Issue 4 Article 5 2000 Home Schooling and "Shared" Enrollment: Do Nebraska Public Schools Have an Obligation to Provide Part-Time Instruction? Tim W. Thompson Kelley, Scritsmier & Byrne, PC, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Tim W. Thompson, Home Schooling and "Shared" Enrollment: Do Nebraska Public Schools Have an Obligation to Provide Part-Time Instruction?, 79 Neb. L. Rev. (2000) Available at: https://digitalcommons.unl.edu/nlr/vol79/iss4/5 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Tim W. Thompson* Home Schooling and "Shared" Enrollment: Do Nebraska Public Schools Have an Obligation to Provide Part-Time Instruction? I. INTRODUCTION In the United States approximately one million school-aged chil- dren are being educated at home.1 In Nebraska about 4,700 children are home schooled.2 Home-schooling is one of the major trends of the 1990s, the effects of which will be felt into the twenty-first century.3 Families are turning to home education primarily for religious rea- sons. However, others teach their children at home because they are concerned about the quality of instruction, curriculum, and textbooks in the public schools or about the influences of peer interaction at pub- lic schools. As a result of this growing popularity of home-schooling, public school districts are increasingly being subjected to legal challenges © Copyright held by the NEBRASKA LAW REVIEW. * University of Nebraska, J.D., 1982; past President of the Nebraska Council of School Attorneys. The author gratefully acknowledges the assistance of Kimberli D. Dawson in the research and preparation of this article. Ms. Dawson gradu- ated in 1997 with distinction from the University of Nebraska College of Law. 1. See Eugene C. Bjorklun, Home Schooled Students: Access to Public School Extra- curricularActivities, 109 WEsr's EDUC. L. REP. 1 (1996). The number of home- schooled students could actually be higher. The National Home Education Re- search Institute estimates that there were 1.3 million to 1.7 million children in grades K-12 that were home-schooled during 1999-2000 in the United States. Na- tional Home Education Research Institute, Facts on Home Schooling (visited Mar. 1, 2001) <http://www.nheri.org/98/research/general.html>. 2. For the 1999-2000 school year there were 4,706 students from 2,591 families who applied for home-school exemptions. See SUE ROBERTS, NEBRASKA DEP'T OF EDUC., A REPORT ON PARTICIPANTS IN NEBRASKA ExEMPT SCHOOLS BASED ON SIN- CERELY HELD RELIGIOUS BELIEFS 4 (2000)(covering the 1999-2000 school year). 3. See Anita Manning, Life in '94 Will Offer Glimpse into Next Century, USA TODAY, Dec. 22, 1993, at 01D. In Nebraska, the number of home-schooled children in- creased steadily from the 1985-86 school year to the 1998-99 school year. See ROBERTS, supra note 2, at 3. The trend, however, may be tapering offas the 1999- 00 school year showed a slight decline in the number of exempt students from the prior year. See id. 2000] HOME SCHOOLING AND "SHARED" ENROLLMENT 841 brought by parents of home-schooled students who want to enroll their children in the activities of public schools. The issue has arisen because "[dlespite the variety of sequenced and integrated curriculum materials now available for home schooling, homes simply cannot pro- vide many enrichment activities - such as band, orchestra, choral ac- tivities, forensics, and many sports - without cooperation from some established education institution."4 Eighty-one percent of home edu- cators feel that they need or want to enroll their children in extracur- ricular activities at public schools, and seventy-six percent of home educators would like to enroll their children "part-time" in academic courses in public or private schools.5 To date, however, the majority of legal efforts by home-schooled students to gain access to public school activities have failed. II. HOME SCHOOLING IN NEBRASKA Educating children at home has become popular primarily due to state legislative enactments authorizing home instruction.6 Most state statutes prior to 1980 either prohibited home-schooling or failed to address the issue.7 Today, however, home-schooling is authorized in some form in every state.8 Initially in Nebraska home-schooling was only authorized when the requirements for approval and accreditation required by law and the rules and regulations adopted and promulgated by the State Board of Education9 violated the sincerely held religious beliefs of the parents.lO In 1999, however, the Nebraska law on home-schooling was expanded to authorize parents who merely wanted to "direct their child's education" to home school their child.11 The legislative aggran- dizement of the categories of authorized home-schoolers was in re- sponse to assertions by some parents that the prior legislative 4. Bjorklun, supra note 1, at 5 (quoting Betty Jo Simmons, Classroom at Home, 181 A-Ai. SCH. BD. J. 47 (1994)). 5. MARALEE MAYBERRY ET AL., HozE SCHOOLING: PARENTS As EDUCATORS 73 (1995). 6. See Bjorklun, supra note 1, at 1. 7. See id. 8. See id. 9. The Nebraska Department of Education has authority to promulgate rules and regulations in furtherance of statutory enactments relating to those schools elect- ing not to meet accreditation or approval requirements. See NEB. REV. STAT. § 79-318(5)(c) (Reissue 1996 & Supp. 1999). 10. See NEB. REv. STAT. § 79-1601 (Reissue 1996). 11. Legislative Bill 268, which was introduced by education chairperson Ardyce L. Bohike, amended NEB. REV. STAT. § 1601 and authorized home schooling where "the requirements for approval and accreditation required by law and the rules and regulations adopted and promulgated by the State Board of Education inter- fere with the decisions of the parents or legal guardians in directing their child's education." NEB. LEGIS. J. 124 (Vol. 1 1999). Legislative Bill 268 is now codified at NEB. REV. STAT. § 79-1601 (3)(a)(ii) (Reissue 1996 & Supp. 1999). NEBRASKA LAW REVIEW [Vol. 79:840 requirement that parents provide the Department of Education with a sworn statement1 2 that their children were being home-schooled due to sincerely held religious beliefs forced them (or tempted them) to submit false statements.1 3 Arguably, the ease with which the home- school exception was expandedi 4 reveals a legislative fondness for home-schoolers and their parents.1 5 NebraskaRevised Statutes section 79-1601 and Rule 13, which was promulgated by the Nebraska Department of Education, delineate the procedures and requirements for parents to follow when they elect not to meet the legal requirements for state approval and accreditation. Rule 12 was adopted by the Nebraska Department of Education in 1999 to address the requirements for students seeking exempt status based on the parents' desire to direct the education of their children.1 6 Under either Rule 12 or 13, a home educator must provide a program of sequential instruction in the language arts, mathematics, science, social studies, and health. In addition, the home-educated student 12. Rule 13 of the Nebraska Department of Education required the parents to submit "Form A", entitled "Statement of Objection and Assurances by Parent or Guard- ian" to the Department prior to home schooling their children. 92 NEB. ADMIN. CODE, ch. 13 (1984). Form A, which was to be signed under oath before a notary public, required an affirmation that "[t]he requirements for school approval and accreditation required by law and the rules and regulations adopted and promul- gated by the State Board of Education violate my sincerely held religious beliefs .... " Id. 13. Legislative History of LB 286, p. 55 (Education Committee hearings held Janu- ary 24, 1999). 14. On Final Reading of LB 268, the final vote tally was 44 ayes, 0 nays, 3 present and not voting and 2 excused and not voting. See NEB. LEGis. J. 741 (Vol. 1 1999). 15. The only real debate on LB 268 centered on parents' ability to "opt out" of immu- nization requirements imposed by statute. Legislative History of LB 268, Floor Debate, LB 268, p. 559-573 (Feb. 2, 1999). Under LB 268, parents retain the right to forgo immunization of their children if the child's doctor signs a state- ment indicating the required immunizations would be injurious to the health and well-being of the student, see NEB. REV. STAT. § 79-221 (1) (Reissue 1996 & Supp. 1999) or the student or, if a minor, the student's authorized representative sub- mits a signed affidavit stating that the "immunization conflicts with the tenets and practice of a recognized religious denomination of which the student is an adherent or member or that immunization conflicts with the personal and sin- cerely followed religious beliefs of the student. NEB. REV. STAT. § 79-221 (2) (Re- issue 1996 & Supp. 1999). 16. 92 NEB. ADMIN. CODE, ch. 12 (1999). Rule 12 and Rule 13 are nearly identical. The primary differentiation is the requirement in Rule 13 that parents seek ex- empt status because to educate their children in accredited schools violates their sincerely held religious beliefs. Rule 12, on the other hand, requires only that they affirm they wish to direct their childrens' education. The justification for separate Rules appears to stem from a desire to simplify the keeping of statistics as to which students are exempt based on a sincerely held religious belief as com- pared with those parents who wish to direct their students' education.