Fighting the Opt Out Truancy Threats: Dual Enrollment Home Schooling

Schools are actively brandishing the threat of truancy charges against parents who exercise their fundamental liberty rights to direct the education of their children and protect them from abusive testing regimens.  Schools have sent threatening letters and in some cases actually filed truancy charges against both parents and children if they missed10 days (unexcused) in a six month period or more than three days in a four week period.  We have seen letters threatening to file truancy charges against nine year old students, even though the statute only makes truancy criminal if the child is between 12 and 18 years of age.  It is less clear if parents can be charged for truancy of children under age 12 because of the confusing way the statute is written.  One argument would say that the days missed calculation applies to students of all ages for purposes of charging the parent.  Another argument would say that the days missed calculation can only be determined by reference  to the age of the child, and therefore parents can’t be charged if the student is under 12.  We predict schools will take the first interpretation and file charges against parents and force them to argue in court, at risk of conviction, that the second interpretation should prevail.  We do not believe schools will file against any student under age 12.  (Please file an Incident Report with us if they do)

Rather than depend on legal semantics to fight the charges, parents do have other options.  Please note, none of these options have been tested in court.  There is always a risk that a judge may reject them, but we believe they are legally sound.  The first option is the withdraw/re-enroll option discussed in a previous article.  The main requirement here is that if charges are filed, you must demonstrate that you have an actual home school program during the time of disenrollment that includes a study of good citizenship.  Curriculum purchased or downloaded from the internet, along with assignments from the days of withdrawal would support this factual finding.  Of course, if you take this route, you are faced with multiple withdrawals and re-enrollments during a school year.  This is a time consuming undertaking.  We also believe local school boards may try to pass policies to combat this if this approach becomes prevalent.  For this reason, we are proposing a new approach.  Again, this approach is legally untested, but we believe it to be valid and consistent with state law.

The approach is what we call Homeschool Co-Enrollment.  At its heart, Homeschool Co-Enrollment is the essence of what schools should seek in a family’s approach to education.  In Homeschool Co-Enrollment, parents are actively involved supporting and supplementing the academic development of their child.  Homeschool Co-Enrollment exists informally in many ways.  Sunday School classes, academic tutoring centers, and family reading times are all examples of homeschooling that we engage in informally, not to mention giving homework help and quizzing your child to prepare for tests.  Our proposal is for a family that intends to take their kids out of school during STAAR testing to make this relationship formal.

We are not advocating a mock homeschool program.  That demeans the homeschool community and also would be a legal evasion.  Most parents that Opt Out try to fill their opt out days with educational, fulfilling activities.  This is homeschooling at its finest.  So let’s formalize what you are doing and use it as a means to combat the truancy threats that schools use to try and scare parents into sending their children to school for STAAR testing.

Here is our Step by Step Guide to Homeschool Co-Enrollment.

STEP 1 – Determine the areas in which your Homeschool will operate academically.  These could be areas that supplement existing instruction, or complement instruction by filling holes in the curriculum.  An example might be something like this:

John Doe Homeschool Curriculum

                1.            Religion and Bible – Directed Study of the Old and New Testament with an emphasis on the Pauline Epistles. (includes reading and writing  instruction)

2.            Physical Education – Participation in recreational and competitive team or individual sports for development of motor skills, cooperative play, strength, agility and fitness.

3.            Creative Writing – Unstructured writing exercises designed to elicit individualized writing interests and styles, including short stories, fiction, and poetry. (includes instruction in spelling and grammar)

4.            The US and Texas Constitutions – A study the rights guaranteed under our state and federal constitutions and how they apply to our life as good citizens of Texas and the United States.  (includes good citizenship, reading, writing and spelling instruction)

5.            Mathematics – Reinforcement of basic computation, problem solving and applied mathematics.

If your family is religious, I strongly recommend a religion component to the curriculum since this is something the schools simply cannot teach.  It will also be difficult for a judge to tell you that you can’t do this!  If a fight over the propriety of Homeschool Co-enrollment is going to occur, the equities of a school trying to deny the rights of parents to direct the religious upbringing of their child weigh heavily in favor of the parents.  Feel free to add any other subject, academic or otherwise, that you believe your child would benefit from learning.  This is your child and you know best what he or she needs educationally.  If dad is a mechanic, maybe a work study day is in order!  If your child likes art, maybe a fine arts class can be added or photography or whatever else you think would be engaging for your child.  In fact, the best way to plan this would be to ask what activities or learning experiences would you like your child to have when they are out of school for STAAR test days.  Put the answer into your homeschool curriculum.

In addition to an outline such as this, I would encourage parents to go a step further and identify source materials, lesson plans, assignment sheets and the like and incorporate that into your curriculum outline.  Understand, we are not encouraging you to set up a fake homeschool.  Most parents who remove their kids from school during standardized testing use STAAR test days to share educationally stimulating activities with their kids.  That is your curriculum.  Just remember, one component of the school must be a study of good citizenship.

STEP 2 – Notify the School

We have prepared a form notice letter (currently under revision) you can use to notify the school.  You are not under a legal obligation to provide the school with a curriculum, but if asked, I recommend you do exactly that as it will minimize the chances that they challenge this approach by filing truancy charges.

STEP 3 – Respond Calmly and Patiently to the School

The first time this approach is used, schools will not know what to say.  Many of them will deny that you can do this.  Others will say that no such arrangement has ever been approved.  Others will say that it doesn’t exempt you from truancy laws.  Before we drafted this article we did several things which can be used to respond to the school.

A.            We examined the Texas Education Code and found no provisions prohibiting dual enrollment in public and private schools.

B.            We examined several local board policies based on TASB forms and found no provisions prohibiting dual enrollment in public and private schools.

C.            We identified at least one publication from a Texas state agency noting that homeschooling may involve a blend of public schooling and private education. (2012 CPS Memo, “Home schooling can take many forms, including  . . . blended instruction with public or private school providers.”)

This doesn’t mean a school will agree with you or this approach.  It simply means they won’t be able to point to any law directly prohibiting it.  On the other hand, you will be able to show them the CPS memo supporting this approach.

STEP 4 – Accept the Risk

Since you are opting out already, you know that there is the risk of non-promotion, exclusion from classes, summer school and other punitive measures that schools associate with failing to take the STAAR examination.  These risks are present with this plan as well.  It is unreasonable, and ultimately unrealistic, to expect schools to waive consequences because parents opt-out of the STAAR test.  Parents have a right to opt out; they don’t have a right to avoid consequences.   In fact, that is what makes the opt-out movement so powerful.  Parents accept that they may have to go before a grade placement committee for promotion or give up an elective, but they still make that choice for their child.  Then they do what all good parents would: they advocate for promotion and an enriching educational placement for their kids.  Ultimately, schools will have to make a decision on whether they want to be punitive.  Some school may decide to make someone an example.  And you can fight that if it happens.  But up front, when the school says that consequence X, Y or Z may occur, the proper response is that you are aware of the consequences.  Except for one – if they threaten truancy charges, in no uncertain terms they need to be told that your child’s co-enrollment in a homeschool program precludes any such charge.

STEP 5 – Execute Your Curriculum

Some school district, somewhere, will decide to challenge this approach.  They will file charges in a truancy court.  By having actual work product and educational records of your homeschool activities during the days of the STAAR test, you will be far better positioned to fight the charges.  Lesson plans, completed work and evaluations of the work will demonstrate that your homeschool is properly classified as a private school under the Education Code.

STEP 6 – Going the Extra Mile

If you know other opt out families nearby, consider forming a homeschool cooperative for coordinated learning activities on STAAR test days.  This will lend validity to your school and also provide support for opt out families and families considering taking the first opt out step.

Why is formalizing co-enrollment in your homeschool so important?  Theoretically, it removes the threat of truancy charges from you.   Consider first the basis for the requirement of compulsory attendance:

Tex. Educ. Code §25.085

(a)  A child who is required to attend school under this section shall attend school each school day for the entire period the program of instruction is provided.

(b)  Unless specifically exempted by Section 25.086, a child who is at least six years of age, or who is younger than six years of age and has previously been enrolled in first grade, and who has not yet reached the child’s 18th birthday shall attend school.

Obviously the key language is “unless specifically exempted by Section 25.086.  When we look at §25.086, we find that the first exception states:

(a)  A child is exempt from the requirements of compulsory school attendance if the child:

(1)  attends a private or parochial school that includes in its course a study of good citizenship;

We know from the Texas Supreme Court case in Leeper (http://www.thsc.org/homeschooling-in-texas/the-history-of-home-education-in-texas/leeper-case-decisions/)  that homeschools can constitute private schools for purposes of the compulsory attendance law.

Again, we emphasize that this argument regarding co-enrollment has never been considered by any court.  However, it is consistent with the plain language of the statute.  Dual enrollment is in no way prohibited by statute or TEA rule.  Simply keeping your child at home on STAAR days already exposes you to intimidation with truancy charge threats.  Since most parents already educate their kids on those days anyway, Homeschool Co-enrollment lets you fight back and tell the school that their truancy threats don’t intimidate you.

The fight against the standardized testing regime is joined on many fronts.  Parents are opting out.  Parents are writing legislators and speaking at committee hearings.  Others are educating their fellow parents.  But testing is big business and big money.  Schools are fighting back with threats, coercion and intimidation.  No threat is as coercive as the threat to file criminal truancy charges.  If we can prevail in establishing the validity of homeschool co-enrollment, the truancy threat disappears.  We stand here to assist you however we can!