Icing on the Cake: New Health & Welfare Guidelines

Idaho recently became even more homeschool friendly.

During the 2009 legislative session, a major revision of Idaho's education statutes unanimously passed both houses of our legislature. Those changes made homeschooling expressly legal in Idaho for the first time. They also made it clear that those who home educate may chart their own course. They are not required to follow the lead of Idaho's public schools with respect either to curriculum, subject matter, or instructional time. In short, we are now the state with the fewest homeschooling restrictions in the country.

Then in 2010, to our surprise, things got even better. But to understand this improvement, a little background will be helpful.

Nearly 10 years ago, the Governor's Task Force on Children at Risk set its sights on Idaho's homeschoolers. The task force persistently looked for ways to bring greater government oversight to those who teach their children at home.

But during the decade of the task force's efforts, it was never able to gain traction in the legislature in large part because of how many staunch supporters we have among Idaho's Senators and Representatives. But the reputation that Idaho's homeschooler gained over the years as a formidable grass roots political force also contributed to our defense. Even the few legislators who had a desire to impose regulations were generally unwilling to take the heat from constituents and other legislators that would have resulted from such an effort.

Then, during the summer of 2008, the Task Force approached the leadership of ICHE and CHOIS and asked how we would view a bill they wanted to introduce to clarify the definition of "educational neglect." After our initial review, we indicated that we didn't have a problem with their bill. And we also indicated an interest in making other changes to the same statute.

To our mutual surprise, after an extended discussion between the task force and ICHE, HSLDA, and CHOIS, it was decided that we would pursue all of the changes simultaneously in a collaborative bill. That was the bill that passed both houses unanimously.

But earlier this year, after the new bill was in place, an incident occurred in which a heavy-handed investigator from the Idaho Department of Health and Welfare attempted to cajole a homeschooling mom into proving her innocence against a totally-unsubstantiated accusation of educational neglect.

Attorneys for the Home School Legal Defense Association (HSLDA) intervened on behalf of this family. The accusation was then disproven relatively easily.

But after that case was resolved, ICHE approached a supervisor for the Department of Health and Welfare and asked if we might attempt to jointly come up with a set of guidelines for Child Protective Services workers to follow when investigating an accusation of educational neglect against a homeschooling family.

Our primary concern was rooted in the recognition of the psychological impact that even an unfounded investigation can have on both the parents and the children that are placed in the department's cross hairs. ICHE and HSLDA attorneys have seen some unnecessarily heavy-handed approaches by state investigators produce some tragic results here in Idaho. In reality, almost all complaints against homeschooling families have proven to be without merit. But sometimes the Child Protective Services workers operate on an unfounded presumption of guilt and attempt to force the families to prove their innocence even in the face of a dearth of substantive evidence of a problem.

And in defense of the health and welfare investigators, we understand that they operate on caricatures of homeschoolers as much as we operate on caricatures of them. That combination has historically produced some unfortunate outcomes that were unnecessarily escalated.

The supervisor whom we contacted graciously indicated an interest in developing such guidelines. At our request, she even permitted us to prepare the first draft for consideration by the department. Attorneys for HSLDA and ICHE then conferred with CHOIS and submitted a proposal that offered several important protections for the family under investigation.

After a dialogue on the details of those guidelines, the department eventually adopted and implemented them. The heart of the guidelines is as follows:

These guidelines, by themselves, go quite a distance toward establishing a reasonable approach to the handling of these complaints. They should do much to encourage the investigators and families to avoid an unnecessary escalation of tensions.

But the Department of Health and Welfare was even willing to take these guidelines a step further. We decided to offer some observations to help the investigators understand the unconventional nature of home education. In the process, a clear distinction was provided between the regimented processes followed in the public school settings and the flexible and creative options available to families that teach their children at home.

With this in mind, we offered - and the department accepted and included - additional perspectives in their Guidelines. Among others, those perspectives included these:

As most families who teach their children at home realize, criticism of home education sometimes arises from the mistaken presumption that all education must mirror the public school system. The public expectation occasionally is that children cannot learn effectively unless they are seated in neat rows during the same hours of the day that the public schools are in session.

Homeschoolers, on the other hand, recognize that the regimen followed within the public school system is predominantly designed to control large age-delineated groups of children. Sadly, that regimen often includes practices that serve to suppress, rather than encourage, educational curiosity. Fortunately, maintaining order is not a significant problem that confronts homeschooling families. But based upon their experience and assumption, some members of the public are still uneasy with the concept of home education.

The new Guidelines adopted by the Idaho Department of Health and Welfare should provide protections for innocent home schooling families while still allowing any families that might be negligent in their children's education to be pursued appropriately.

Homeschooling families in Idaho are blessed to have leadership within the Department of Health and Welfare that has been willing to both listen to and honor our perspectives on this important subject.

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, probate, real estate contracts, and business formations.

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