FREE AT LAST: Idaho's New Home School Liberties

By Barry Peters (07.12.09)

Idaho has always been one of the states with the fewest restrictions on home education.

But last spring, the Idaho legislature clarified the laws governing home education. It advanced Idaho to the head of the class and gave us the gift of essentially unrestricted home schooling liberty. In doing so, a remarkable journey was completed leaving Idaho as the state with the greatest home school liberties.

Twenty-five years ago, six parents in Idaho were sent to jail for humbly insisting that they had both the right and the moral obligation to teach their own children at home. Sadly, one of the mothers who was jailed died as a result of an infection contracted while she was in jail.

Since then, the persistent principled persuasion of both the leaders and the rank-and-file members of the home school movement has convinced the legislature to grant our wish for the right to teach our children when, where, and how we wish. Miraculously, this long-sought change was approved unanimously by both the House and the Senate.

What follows are revised Answers to Questions that were addressed several years ago here in the CHOIS Connection. These new answers reflect the changes implemented by our new laws. All of the code sections referred to may be read on the ICHE website at www.idaho-iche.org.

Question 1: Do Idaho statutes permit parents to teach their children at home?
Answer: Yes. Revised section 33-202 of the Idaho Code now explicitly states that parents may home school their children. The statute now provides that the parents of a school-aged child "shall cause the child to be instructed in subjects commonly and usually taught in the public schools of the state of Idaho. To accomplish this, a parent or guardian shall either cause the child to be privately instructed by, or at the direction of, his parent or guardian; or enrolled in a public school or public charter school, including an online or virtual charter school or private or parochial school."

Question 2: Must home schooled children receive instruction for a minimum number of hours per day or a minimum number of days per year?
Answer: No. When section 33-202 was rewritten, a semi-colon was intentionally placed at the end of the phrase which describes home schooling (see bolded portion in Answer to Question 1, above) making it clear that the "seat time" requirement which follows only applies to public, charter, private, and parochial schools.

Question 3: Must certain subjects be taught to home schooled children at specified ages?
Answer: Section 33-202 requires that parents cause their school-aged children "to be instructed in subjects commonly and usually taught in the public schools." This requires that instruction must occur, but it leaves to the parent the discretion to determine what subjects are taught, how they are taught, and when they are taught. 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 that child's instruction. Or if a child is interested in studying Greek and Roman history at the age at which public school students are learning Idaho history, the parents retain the flexibility to teach to their child's natural curiosity.

Question 4: During what ages must the child be educated?
Answer: Children seven through fifteen years of age 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 fifteen years of age.

Question 5: Must home schooled children register either with the state or with their local public school districts?
Answer: No. Under the new statutes, children whose parents choose home education stand on an equal footing with those enrolled 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, or registration with, either the state or the local public school district.

Question 6: Are parents required to have their children take the same standardized tests that the public school students take?
Answer: No. The federal No Child Left Behind Act expressly prohibits students taught at home from being required to take the state assessment test. However, parents are encouraged to arrange for private standardized testing as a tool to measure the educational progress of their home schooled children. Each spring, ICHE offers the Iowa Tests of Basic Skills to all privately home educated students in the state on a voluntary basis.

Question 7: What can happen to a child who is not educated as required?
Answer: 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. The judge can order the parents to comply with the education statutes in response to minor or unintentional violations. In exceptional cases involving substantial or intentional educational neglect, the judge could remove the child from the home.

Question 8: What can happen to the parents of a child who is not properly educated?
Answer: Where a child is not being properly educated, the parents may be prosecuted as criminals under either the Juvenile Corrections Act or the Child Protective Act. In a serious case, parents who neglect or fail to properly teach their child could even be jailed.

Question 9: Are the rules different for families that enroll their children in public-school-at-home programs such as the Idaho Distance Education Academy or the Idaho Virtual Academy?
Answer: Yes. Children who are enrolled in a virtual charter school are public school students. Under the re-written version of section 33-202, they are clearly distinguished from home schooled students. They are subject to many of the same requirements that apply to students in brick-and-mortar public schools including meeting the state educational standards and taking the state assessment test. That is, in part, why 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 10: If under investigation by the police, the Idaho Department of Health and Welfare, or a local school district, must a home school family cooperate with that effort?
Answer: 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 obtain a search warrant or to take the children away from the parents, they rarely have enough credible evidence to convince a judge to issue such a warrant.

Question 11: How can a family obtain legal representation during an investigation?
Answer: 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 www.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 a 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 does not have adequate income or resources to hire its own attorney, it can request the appointment of a public defender, but such attorneys rarely share the family's knowledge of and commitment to home education.

BARRY PETERS is an attorney in private practice with offices in Eagle, Idaho, and is one of the legal advisors for both ICHE and CHOIS. His law practice focuses on the areas of wills & trusts, real estate contracts, and business formations. He and his wife, Res, homeschooled their daughters, both of whom have now graduated from college.

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