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To: Home Education Advisory Council
From: Elaine Rapp
Date: October 13, 1998
Re: Franklin Pierce Law Centr Education Law Institute 1998

On August 3-6, 1998, I attended the Franklin Pierce Law Center Education Law Institute. Many topics centered on crucial school issues such as school district liability and violence and the implementation of the federal IDEA 97 legislation for special education. No specific topics dealt with home education.

I tried to pick seminars which would incorporate the kind of concerns and questions that the home education option raises for educators and parents. Overall, with the exception of a few individuals, it seems that the education community is accepting of the home education alternative as part of our education system.

I attended the following seminars:

Limiting Your Liability
NH DOE Legislative Update
Update on Claremont

Introduction to IDEA 97
Religious Right
Debunk Myths - Special Education
Special Education Litigation

Civil Rights
IDEA 97 and the Teacher

Violence/Civil Rights
Due Process
Dean Kamen presentation on FIRST

An important issue of the Institute was the implementation of current and new federal education law and rules. IDEA 97 expands special education by both requiring more parental and mainstream teacher participation and by increasing services. When planning the IEP, extra-curicular actiities can be examined which seem to be in the best interest of the child, "behavioral" needs can be taken into consideration, and care should be given to looking toward "transition services" beginning at age 14. There is some confusion over the rights of students in the 18-21 age range and the rights of parents to override school concerns, as it is quite clear that in certain circumstances districts have the responsibility to pursue the student in need of services.

There is no general consensus on how all this should actually be interpreted or implemented. While at its most benign level, this might be construed as an attempt to meet the needs of individuals and students with different learning styles, it also allows for tremendous interference backed by governmental authority, which is potentially threatening to parental rights to care and provide for their own children in the way they deem most fit. I think homeschoolers really need to watch this.

During this conference I thought about two important points home schoolers should remember as they assert their right to withdraw their children from school attendance. The following is a very simplistic summary of those points.

In today's schools, the safety of children cannot be guaranteed. However, a parent is compelled by compulsory attendance laws to send a child to a school or be enrolled in an approved alternative under those laws. If a parent chooses not to expose a child to potential danger by electing to home school, it is going to be difficult for that option to be eliminated. Of course, there is istill the debate over what constitutes "approved alternatives." There is a parental right "of defense" of a child which is upheld in New Hampshire case law. It might be interesting to see if there have been any court challenges elsewhere to compulsory attendance based on this right when asserted to ensure physical safety.

The second important point involving the right to home school arises from our constitutional freedoms under establishment and free exercise clauses. Constitutional rights could apply to a homeschooling situation when the free exercise of the right to practice religion is violated in the school. For instance, if the teachings in a school rise to the standard of "indoctrination" and not "mere exposure", this could be a violation of the right to practice a religion becasue the state would then be endorsing another belief system. Thus, the right to an alternative to that school environment is loosely established. Even compulsory attendance laws cannot transcend that right. The extent to which any alternative can then be regulated, however, is open to much debate.

Should anyone have more questions about my experience, please let me know. I greatly appreciated the opportunity to attend the Institute and hope that this sort of opportunity will continue to be offered to the HEAC.

  1. Document source: New Hampshire Department of Education, hardcopy.
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