BOUNDARIES: The Limits of Idaho's Home School Freedoms

By Barry Peters, Esq.

Author's Note: The laws described in this article were substantially changed in 2009 to make Idaho the state with the greatest home schooling freedoms in the country. Please read the new information at the 'Idaho Law' tab to the left.

Idaho's home schooling laws in a word? Minimal.

That's the good news. And the bad news.

Idaho has one of the lowest levels of bureaucratic supervision of home education in the entire nation. The dearth of statutory and regulatory guidelines sometimes makes it difficult to know what is permitted and what is not. Difficult, but not impossible.

The following Questions and Answers will help clarify the standards which Idaho parents and children currently must meet in their home schooling. The statutes mentioned below may be read on the ICHE website.

Question: Do Idaho statutes permit parents to teach their children at home?
Yes. But they don't expressly refer to home schooling or home education. Instead, section 33-202 of the Idaho Code states that "unless the child is otherwise comparably instructed," parents must enroll their children in public, private, or parochial school. Because home schoolers fall into the "otherwise comparably instructed" category, they are exempted from the requirement that they attend one of the other types of schools.

Question: Must home schooled children receive instruction for a minimum number of hours per day or a minimum number of days per year?
No. Section 33-202 requires children in private and parochial schools to attend their schools for the same number of days during which the public schools are in session. Attendance policies and hours of instruction for private and parochial school students are set by the governing board of whichever school is attended. Home educators, on the other hand, are not subject to these requirements so long as the education being provided is "comparable" to that which is available in the public schools. If the required comparable education can be provided in fewer days and hours, that is permissible.

Question: Must certain subjects be taught to home schooled children at specified ages?
Section 33-202 requires that parents cause their school-aged children "to be instructed in (the) subjects commonly and usually taught in the public schools of the state of Idaho." Those subjects are not defined in the statute, nor are there any administrative rules by which they are officially designated. And even the public schools have a certain amount of flexibility in deciding what subjects are to be taught at what ages. Although it is not an express designation of the subjects which must be taught in the public schools, it is worth noting that the state assessment tests given to public school students only cover the areas of math, language, reading, and science in Idaho. Even though all children must be taught those subjects commonly and usually taught in the public schools, this should not be viewed as a requirement that everyone be taught in lockstep with the public schools. If a home schooled child is eager to learn geometry at an earlier age than it is offered in the public schools, the parents are free to accelerate the child's instruction.

Question: During what ages must the child be educated?
Children who are at least seven, but not yet sixteen, years of age when the local public school year begins must be educated according to section 33-202 of the Idaho Code. Although all parents naturally begin the process of teaching their children at birth, they are not legally required to ensure the training of their children while they are younger than seven or older than sixteen years of age.

Question: Must home schooled children register either with the state or with their local public school districts?
No. Under the statutes, the option of making certain that children are "otherwise comparably instructed" stands on an equal footing with the options of enrollment in public, private, or parochial schools. Families whose children are home educated are not required to register with any governmental entity. So long as they are providing the required education, parents are free to do so in the manner that they deem best without oversight from the state or the local public school district.

Question: Are parents required to have their children take the same standardized tests that the public school students take?
No. Under the federal No Child Left Behind Act, Idaho has developed its own assessment test. But the federal Act expressly prohibits students taught at home from being required to take the test. If Idaho were to impose such a requirement in violation of the federal law, its federal educational funding might be jeopardized.

Question: What can happen to a child who is not educated as required?
Section 33-206 designates a child as a "habitual truant" if the parents have failed or refused to cause the child to be properly educated. Any child who is a habitual truant can be dealt with under the Juvenile Corrections Act. That law gives juvenile court judges tremendous discretion in crafting a solution to the problem. They can do anything from ordering the parents to comply with the education statutes in response to minor or unintentional violations to removing the child from the home in exceptional cases.

Question: What can happen to the parents of a child who is not properly educated?
Section 33-207 provides that, where a child is not being properly educated, the parents may be prosecuted as criminals under the Juvenile Corrections Act. In a serious case of parents neglecting or failing to properly teach their child, the parents could even be jailed.

Question: Are the rules different for families that enroll their children in virtual charter schools such as the Idaho Distance Education Academy or the Idaho Virtual Academy?
Yes. Children who are enrolled in a virtual charter school are public school students. They are not regarded as being in the same "otherwise comparably instructed" category into which home schooled students fall. They are subject to many of the same requirements that apply to students in brick-and-mortar public schools. That is, in part, why some such programs require the parents to expend substantial time documenting the child's "seat time" - the days per week and the hours per day of time that the children are being taught. Failure to do so may cause the child to either be regarded as a truant or kept from advancement or graduation as planned.

Question: If a home schooling family is investigated or prosecuted by the police, the Idaho Department of Health and Welfare, or a local school district, must they cooperate with that effort?
No. Any parent or child who is investigated because of an allegation that the child is not being properly educated has the right to remain silent, the right to an attorney, and all other constitutional rights. As "suspects" in what is potentially a criminal investigation, these families enjoy all of the rights spelled out by the Supreme Court in the Miranda case. Unless and until investigators obtain a search warrant, the parents are not required to: (1) answer questions; (2) allow investigators to interview the children; or (3) allow investigators to come onto the parents' property or into their home. Although it is not unusual for investigators to threaten either to get a search warrant or to take the children away from the parents, they rarely have enough actual evidence to convince a judge to issue such a warrant.

Question: How can a family obtain legal representation during an investigation?
The best option is for the family to belong to Home School Legal Defense Association (HSLDA) prior to the beginning of the investigation. If the family belongs to HSLDA, a vigorous defense will be provided by the staff attorneys of HSLDA at no charge to the parents. HSLDA can be joined on-line at hslda.org. To obtain a discounted membership rate, use the group name "CHOIS" when joining and use code number 5017165 when joining for the first time or code number 299536 when renewing your membership. If not a member of HSLDA, the family can hire its own attorney to defend against the investigation or prosecution. Unfortunately, the cost to hire private legal representation would be many times more expensive than the $9.00 per month that it costs for an entire family to belong to HSLDA. If the family has inadequate income or resources to hire its own attorney, it can request the appointment of a public defender. In either case, the attorney hired or appointed may not share the family's commitment to home education.

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