Homeschool Non-Discrimination Act (HONDA)

HR 2732 & SB 1562

Posted: December 1, 2003
by: Attorney Deborah Stevenson

HONDA Information

The United States Constitution makes no mention of education. Because of the Tenth Amendment, education matters are left up to each state. The federal government has no authority to regulate homeschooling and should not be allowed to do so.
Each time homeschoolers are included in any federal law, the federal government has usurped its authority under the Constitution and is effectively declaring that it can regulate homeschooling.
Unconstitutional laws are often passed and remain in place until and unless new legislation is proposed changing the old, or an aggrieved party files a lawsuit challenging its constitutionality.
With laws eventually comes litigation through which Federal judges will give their interpretation of the laws. Some interpretations may work to undo state homeschool laws. The risk of an intolerable interpretation of the law or the setting of bad precedent for future regulation or litigation outweighs any perceived benefit.
Homeschoolers in some states may suffer "unintended consequences" because of this legislation. It is unknown how each state's homeschool practices and laws will be affected. Do you know exactly how each piece of HR 2372 & SB 1562 will affect your state's homeschool practices and your current state laws?
Homeschooling itself may have to be defined or redefined in certain states, which may invite further legislation and regulation in the future.
Additional legislation may be enacted to manage not only this federal law but also any other laws affected by this legislation.
Congressional members, who may not understand home education, may choose to insert amendments or add changes to the bill that would further restrict homeschooling.
What need has been demonstrated for this kind of federal law regarding homeschooling? Have there been enough homeschoolers complaining of unfair treatment to warrant federal remedies? Can the problems, which this bill proposes to fix, be taken care of at a state level?

Did you know:

Homeschoolers in Connecticut, Illinois, Texas, Oklahoma, California, and Kansas will be affected by this legislation because they have no state laws that currently regulate or define homeschooling directly. The wording in HR 2732 & SB 1562, "whether the home school is treated as home school or a private school under state law" will force states to make that definition, and with that may come regulation.

Solution: Do not support HR 2732 & SB 1562.
The bill inserts a potential definition of homeschooling into several federal laws, laws where there is currently no definition. It is possible that such a federal definition could be interpreted to override the definition of homeschooling that exists independently under each state's law.

Solution: Do not support HR 2732 & SB 1562.
If this law affirms the rights of homeschoolers, then the federal government must also have a basis in federal law for "regulating" this right. Further legislation - even that coming from the NEA - may be problematic in the future!

Solution: Do not support HR 2732 & SB 1562.
If homeschoolers were denied admittance to colleges, the solution to this problem can be found in the letter written in Nov 2002, by the Department of Education to clarify the issue.

Additional solutions to this issue: There have been many homeschoolers, as well as those under the age of 18, who have been admitted to many colleges throughout the country. If colleges or universities refuse to admit homeschoolers based on the fear of losing their grant eligibility then they should be educated about their error. Homeschool support organizations could lend their influence by distributing information and attending instructional meetings with the administration of these institutions. These are just a few examples of how similar problems have been resolved. Even if other solutions fail, homeschoolers have the option of attending a variety of other institutions. Choosing to attend a different school is a far superior alternative than to resolve the problem by implementation of federal law.
Under IDEA, 34 C.F.R. §300.505, parents already have the right to refuse consent for evaluations. If a school district disagrees, it can bring the issue before a due process hearing officer. Yes, there may be court problems and issues at this time, but we need to understand whether they are a result of misapplication of current law or because law is being misinterpreted.

Solution: Vigilance and educating parents of their rights.
Legislation having to do with the Coverdell Educational Savings Account is simply one more way that homeschoolers will be subsumed in a category of parents who must endure federal regulation. If Coverdell has new IRS rules applying specifically for homeschoolers, then the IRS is going to have to define what is - and what is not - a legitimate homeschooling expense and what is and what is not an "eligible school". What paperwork and procedures will be required by the IRS to prove a family is a bona fide homeschool family? These are only a few of the problems that can arise from this kind of legislation.

Solution: You and your family members can already save for education without any limits on the amount you set aside, and your educational choice is not subject to government approval. For example you can open up a tax free mutual fund or use a variety of other investment vehicles to accomplish your goals.
FERPA School districts should not retain records of homeschooled students. If the school has no records they cannot be released.

Solution: Homeschooling parents should press their influence to amend their state statutes and eliminate the requirements for submission of records of homeschooled students to school districts.
The importance of freedom from government intrusion or the potential of government intrusion far outweighs the importance of homeschoolers being able to participate in the Byrd scholarship program, no matter how economically advantageous it is. There are a variety of conditions and qualifications that one must meet in order to obtain various scholarships. Many scholarships are only available to particular categories of individuals, such as children of firefighters, or children of veterans, or students residing in a particular town. A change in federal law should not occur just to allow homeschoolers to participate in those types of "discriminatory" scholarships so similarly, a change in federal law should not occur just to allow homeschoolers to participate in the Byrd Scholarship. The money one would receive from this scholarship is not worth the strings and reporting requirements that will be attached to it.

Solution: Apply for other scholarships.
The proposal regarding the Child Labor Laws is unnecessary. States may "cite the federal law" but that does not mean that the individual states have no authority to correct the situation on their own. The problem of teen employment during school hours may be a result of implementation by uninformed administrators rather than a legal problem. This particular piece of legislation will cause a myriad of problems in states like California. The eventual loss or compromise of rights of many homeschoolers is a terrible price to pay so that a teen can work for minimum wage during school hours.

Solution: If necessary, work to change your own state labor laws if teen employment during school hours is a problem.

Please take a serious look at what you are doing if you support this legislation or seek support for this legislation by your congressional leaders. HR 2732 & SB 1562 opens a door to federal legislation that is dangerous, unnecessary and will in the end hurt many homeschooling families who will bear "unintended consequences". This legislation purports to fix discriminatory practices and yet there has been no demonstrated need by the majority of homeschoolers nationwide for HR 2732 & SB 1562.

Our research indicates HR 2732 & SB 1562 has the potential to harm a great many homeschool families while providing some small assistance to a few. In the course of our research we also discovered reasonable alternatives which, in some cases, are better solutions for all homeschool families. We hope that you will take the time to do your own research and decide whether the potential harm outweighs the possible benefits of this legislation that all homeschool families will have to live with.

Prepared by: Attorney Deborah Stevenson
Executive Director of Home Education Legal Defense of CT

Judy Aron - Connecticut

Reprinted with permission.