“How do we stop parents who say they are home educating and are not doing so?” Or, “Most parents do a great job with home education, but what about those that don’t?” The following is an answer to why, in these instances, hard cases make bad laws.
Parents have the constitutional right to direct the education of their children. The State does not have the right or responsibility to interfere with the education of children not in the public school system. Aside from the Oklahoma Constitution and Oklahoma Supreme Court decisions, as recently as the year 2000, the U.S. Supreme Court in Troxel v. Granville, stated: “In a long line of cases, we have held that, in addition to specific freedoms protected by the Bill of Rights, the ‘liberty’ specifically protected by the Due Process Clause includes the right to direct the education and upbringing of one’s children” (citing Myer and Pierce). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
To give a practical example of how these rights would be infringed upon and why regulation is not practical, consider the “Meth Lab Example.” Substitute “parents who are not homeschooling” for “meth lab.” What do we do about the problem of meth labs being run illegally in homes in Oklahoma? True, most residents are law-abiding citizens. But, some have meth labs in their homes. We don’t even know how many there are out there. The answer is to have every citizen sign a document declaring that they are not running a meth lab in their home. To insure that there is no meth lab abuse in their home, each citizen will be required to allow government authorities access to their homes twice a year, so that the state can verify that their home is meth free. What are citizens trying to hide? If they are not running meth labs in their home, this should not be a problem.
This is an obvious violation of our rights as citizens. It considers an entire class of citizens (home educating parents) as guilty until proven innocent. But, it is also impractical. Consider that criminals will not comply with laws that expose their criminal behavior. Scofflaws will continue to scoff at laws. Oklahoma has adequate laws against truancy and educational neglect. When necessary, with clear evidence, they need to be enforced. Unless there is clear evidence, citizens are presumed innocent.
Any proposed law would be costly and burdensome to both parents and the public school districts. The public school districts do not have the funds or personnel to add registration duties or adequately access the progress of students not in the public school system. Increased regulation does not produce better students, only more impoverished parents forced to teach to a curriculum that may have little correlation to the actual educational abilities and levels of their children. It undermines our freedom and flexibility to direct the education of our children.
Does the current law in Oklahoma adequately addresses the failure to provide other means of education or are additional regulations needed?
Oklahoma Christian Home Educators’ Consociation, Inc. (OCHEC) solicited assistance from the Home School Legal Defense Association in answering this question. Below are excerpts from a response from Thomas J. Schmidt, Esq., received on February 17, 2007:
In accordance with Oklahoma law, a parent has the option of sending their child to a public or private school or providing other means of education. However, providing no means of education is not an option. When a parent seeks to provide other means of education, they must comply with several applicable statutes. Additionally, Oklahoma has a history of case law that governs how a parent is to provide other means of education to their child.
Sheppard v. State, 306 P.2d 346 (Okla. Crim. App. 1957) held that the question of whether the instruction “was adequate and comparable to the instruction given in public school” was essential to the determination of whether other means of education was in fact being provided. Instruction that is “wholly inadequate” to that provided in the public school would establish a prima facie case of a violation of 70 O.S.A. § 10-105. Sheppard v. State, supra.
When a parent fails to send their child who is compulsory attendance age to a public or private school and does not provide other means of education then they are subject to criminal prosecution.
Under O.S.A. § 10-105 it is primarily the duty of the attendance officer of the local board of education to enforce the compulsory attendance provisions of Oklahoma law.
Once the attendance officer obtains information and evidence that a parent is not providing other means of education, it is his duty under O.S.A. § 10-105 to initial criminal prosecution against the parent.
In order to establish a prima facie case of a violation of Oklahoma compulsory attendance laws all that is required is that (1) defendant is a parent, guardian, custodian or has control of a child or children who (2) are over 5 and under 18 years of age; (3) neglect or refusal of defendants to cause child or children to attend some public, private or other school unless other means of education are furnished for (4) the full term the schools of the district are in session. See Sheppard v. State, supra.
Once a prima facie case has been shown to overcome the defendant’s presumption of innocence the burden shifts to the defendant to provide evidence that they have provided other means of education that is equivalent to that of the local public school and provided in good faith. See Wright v. State and Sheppard v. State, supra.
While a parent has the choice under Oklahoma’s constitution and laws to send their child to a public or private school or provide other means of education, they have a responsibility to ensure that their child is receiving an education. Failure to carry out this responsibility could subject the parent to court action and substantial fines for each day they have failed to provide for their child’s education.
Based on our review of Oklahoma, we find that the current statutory and case law governing a parent’s duty in exercising their constitutionally protected right to provide for other means of education for their children is sufficient to ensure that the child receives an education that is equivalent to that of the public schools. Any parent who does not provide proper instructional program given in good faith and equivalent to the instruction given in the public schools will face criminal prosecution and be subjected to judicial scrutiny.
Local Truancy Issues.
In the section below OCHEC will list any local Truancy laws or issues that we discover.
On March 2, 2010 OCHEC’s Legislative POC was able to attend the Oklahoma City Council meeting, regarding truancy provisions being added to the Oklahoma City Municipal Code. In the original language, there was an exemption for “children being home schooled as allowed by law.” The Council agreed to change the wording to “children receiving an education by other means.” During the Council session, the Oklahoma City Chief of Police was asked how this would be enacted. His reply was that should a truancy officer stop a student, during school hours, he will ask for his name and address. The police department has an electronic daily update to truant students in the Oklahoma City School District. If the student is not listed as truant and there are no “specific facts causing an attendance officer or other authorized person to reasonably suspect that a truancy violation is occurring” no temporary detention or custody will be made. If a statement is made by the student that he/she is home educated, the student will be released. The parent or guardian may be contacted at a later date for verification, if there is suspicious activity.