Originally appeared in the CAS Weekly Newsletter. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
Last week, I met a lovely couple who stopped by my office to visit. They live just down the street from my school and they are homeschooling their two children who would otherwise be in grades 2 and 5. They explained that they don’t have anything against the public schools per se and that they are simply trying to provide their children a Christian education designed especially for them. They did confess to two concerns for their homeschooled children – the lack of opportunities for social interactions and for organized exercise – and they asked me if I would let their children participate in recess and gym class.
I was surprised by the request and I had no idea what to say. I told them that their request was a new one for me and that I would need to check. They politely thanked me, but as they were putting on their coats, they pointedly reminded me that they are taxpayers and would expect that their children would be welcome in these school activities.
I really don’t see a problem here, and I am all set to agree to let these children come to recess and gym class with the other students. They may even be a good influence on my students. Am I missing anything?
Ready for Recess
Making a decision on this request is above your pay grade, and you should certainly talk this issue through with the superintendent before you respond to these parents.
We start with the observation that homeschooled children are not enrolled students. Under the mandatory attendance statute, parents are obligated to assure that their children are enrolled in the public schools or are elsewhere receiving instruction equivalent to the studies taught in the public schools. Over twenty years ago, the Commissioner of Education issued guidance concerning homeschooled children, and that guidance includes the recommendation that the superintendent simply acknowledge that homeschooling parents have assumed responsibility for the education of their children, and that the superintendent not express an opinion on the quality of the proposed homeschooling program. Since that time, school officials have typically not exercised any oversight over the educational programs provided to homeschooled students.
Next we note that the State Department of Education has opined that school districts are not required to provide “dual enrollment,” i.e. school officials need not permit homeschooled children (or those enrolled in private schools) to enroll in the public schools for limited purposes. Rather, the general rule is that school officials can require that a student be regularly enrolled in the public school in order to be eligible to participate in school activities.
That said, there is no law prohibiting school districts from permitting homeschooled students (or students enrolled in private schools) from participating in certain public school activities. If you want, you can agree with the parents’ request and permit these homeschooled students to participate in recess and physical education classes. If you do, however, there are serious legal and practical consequences to consider.
The main concern is that public agencies (including the public schools) are subject to the requirements of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. That clause requires that the government treat similarly-situated persons in the same way. The fairness of that premise is clear – government officials should not be able arbitrarily to confer benefits upon some but not others. However, it is not always clear whether and when the requirements of the Equal Protection Clause will apply to a particular situation.
Using this specific request as an example, it is clear that, once these parents’ request is granted, other homeschooled students will be able to claim that they too be permitted to participate in recess and physical education class. The further question, however, is whether other parents of homeschooled students (or those enrolled in private school) may claim that their children should now be allowed to participate in other activities ranging from band to AP Chemistry. If school officials reject such requests, if challenged on equal protection grounds, they will have to show that the situations are different. While school officials can permit limited participation by non-enrolled students in some school activities, they should know that they may thereby be opening the door to equal protection claims from other parents.
Finally, permitting such participation raises significant practical concerns. Will the parents coordinate with the teachers in dropping off their children for recess? What if the schedule changes? What authority do school officials have over students who are not enrolled in school? How will school officials enforce that authority? In short, this simple request raises a host of issues that are not so simple. Aren’t you glad you asked?