Your Legal Right to Homeschool

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Homeschooling is a right guaranteed by the Constitution of Oklahoma, and by state statute. Oklahoma has placed very few legal restrictions on homeschooling, and as a result it is very easy to meet the state requirements.

"The Legislature shall provide for the compulsory attendance at some public or other school, unless other means of education are provided, of all the children in the State who are sound in mind and body, between the ages of eight and sixteen years, for at least three months in each year."

This was the Constitution's original statement. As unschoolers, we fall under the "other means of education provided" clause. In other words, parents can provide for their child any kind of education they choose. If parents do not or cannot provide their child with some "other means of education" then the State is required to provide it.

The Constitution was amended through Statutes passed by the Legislature so that this law now reads:

Title 70 O.S. 10-105 Neglect or refusal to compel child to attend school - Exceptions

"It shall be unlawful for a parent, guardian, or other person having custody of a child who is over the age of five (5) years, and under the age of eighteen (18) years, to neglect or refuse to cause or compel such child to attend and comply with the rules of some public, private or other school,...or unless other means of education are provided for the full term the schools of the district are in session."

Once again, homeschoolers fall under the "other means of education" provision. The above statute has not been interpreted to mean that you must have school the same number of days or hours as the public schools. Under Oklahoma law, private schools set their own hours, number of days, schedules, and curriculum, so homeschoolers enjoy the same rights.

"The Oklahoma Compulsory Attendance Statute does not require that a private school be accredited by the State Department of Education or that a private tutor hold an Oklahoma teaching certificate so long as the private instruction is suppied in good faith and is equivalent in fact to that afforded by the State."

In other words, you are not required to have a college degree or certification in order to provide an education for your child, you must simply provide an education that is at least as good as that provided by the state. Who decides if the education you are providing is equivalent to the state's?

In the case of Wright vs. State, Okla., 209 p. 179 (1922) It was determined that a family is presumed to provide an equivalent education unless the state proves otherwise, and that only when the need arises can that determination be made by a judge and jury. It is not the place of local officials and lawmakers to make this decision.

"Pupils absent from school in which they are regularly enrolled may be considered as being in attendance if the reason for such absence is to participate in scheduled school activities under the direction and supervision of a regular member of the faculty."

Since you as an unschooling parent are the "faculty" of your own school, any day your child is under your supervision, and you believe learning is taking place, that is counted as a school day. Oklahoma requires 175 "school days"; however, since your children are probably under your supervision every single day, there would be few days which would not qualify as school days.

According to the Home Educators Resource Organization , "The Department of Education has acknowledged that for students who are enrolled in public-school 'homebound' programs (for long-term illness that prevents regular public school attendance), three hours of one-on-one instruction per week is considered to be 'equivalent' for their purposes."

Three hours per week? Of course, unschooling children receive much more one-on-one attention from their parents than three hours per week. So you can see how easily our unschooling lifestyle fits into these legal parameters.

You will be glad to know that 70 O.S. 10-109 says home school students may not be detained by an attendance officer for suspected truancy, and 10 O.S. 7003-5.5 states that truancy alone is not grounds for termination of parental rights. So you do not have to be afraid that by homeschooling your child you are going to be considered truant.

The Department of Human Services has no laws regarding homeschooling. They are not supposed to investigate truancy, and they CANNOT enter your home to investigate this allegation unless there are other clear signs of abuse or neglect. Homeschooling in and of itself cannot be investigated by DHS. I have talked to a social worker myself who told me that if the parent says they are homeschooling, DHS cannot do anything. Now, whether or not all social workers follow these rules remains to be seen. Since you know your rights, you may decide that it is in your best interest to not allow DHS into your home. You have the right to refuse to let them in unless they have a warrant. At that time, you should seek legal representation to assist you with the problem. Often, if you know and assert your rights, there is nothing they can do without some proof that there is neglect other than educational neglect.

Also, the board of education in your city only has the authority, according to the state constitution, to supervise "public schools." Your board of education does not have the authority to direct your homeschool in any way. If you have a child that previously attended a public school, and you are taking them out to homeschool them, you are required to officially withdraw them. But after they are withdrawn, the board of education has no jurisdiction in anything you do. You do NOT have to provide them with a plan of study, a list of curriculum, have your children tested, or in any way provide information about your child's progress to them.

It would be a good idea, however, to save some of your child's work to prove that some kind of educational activities have taken place. Of course, with homeschooling you won't have lesson plans or tests to show them. You might consider the idea of taking photos of your child participating in different educational activities, or have them make a scrapbook when they do complete projects of their own choosing. Perhaps keep a list of books they have read. Just something to show that they education hasn't been neglected.

The following words and terms, when used in this Subchapter, shall have the following meaning, unless the context clearly indicates otherwise:

"Abandonment" means that the person responsible for the child (PRFC) has deserted the child or the PRFC through incapacitating behavior or absence is severely limited or prevented from providing minimal care for the child and the PRFC has no ability or no plans to resume care for the child. Abandonment also includes the abandonment of an infant. [10 O.S. § 7006-1.1] Further explanation of abandoned infant is found in OAC 340:75-1-23(c)(10).

"Abuse and neglect" means harm or threatened harm to a child's health or safety by a person responsible for the child's health or safety. [10 O.S. § 7102] Harm or threatened harm can occur through non-accidental physical or mental injury, sexual abuse, neglect, or failure or omissions to provide protection from harm or threatened harm.

"Accepting the report for investigation or assessment" means the screening process has been completed; the report meets the definition of abuse and neglect, is within the scope of Child Protective Services (CPS), and will be assigned.

"Administrative investigation" means an internal investigation initiated by the Advocate General upon receipt of a notice of the death or near death of a child known to Child Welfare.

"Advocate General" means the administrative head of the Office of Client Advocacy of the Department of Human Services (DHS).

"Assessment" means a systematic process utilized by the Department of Human Services to respond to reports of alleged child abuse or neglect which, according to guidelines established by the Department, do not constitute a serious and immediate threat to the child's health or safety.

"Associate Director" means the administrative head of the Office of Field Operations of DHS.

"CPS Programs Manager" means the administrative head of the Child Protective Services Program for the Division of Children and Family Services of DHS.

"Child" means any person under the age of 18 years except a person who has been convicted of a crime specified in Section 7306-1.1 of Title 10 of the Oklahoma Statutes, or any person who has been convicted as an adult as specified in Section 7303-4.3 of Title 10 of the Oklahoma Statutes, and convicted of a felony. [10 O.S. § 7001-1.3]

(A) a child who at any time within six months prior to the child's death or near death incident:

(i) was the subject of an assigned Department investigation or assessment alleging child abuse or neglect;

(ii) was the subject of a report which the Division of Children and Family Services (DCFS) determines to have been improperly screened out;

(iii) resided in a household that included a member who was the subject of a Department investigation or assessment alleging child abuse or neglect;

(iv) was in Department custody or under Department supervision as an alleged deprived child or adjudicated deprived child; or

(B) a child who at any time during the two years preceding that child's death or near death incident:

(i) was the subject of more than five reports or three assigned investigations or assessments alleging child abuse or neglect; or

(ii) resided in a household that included a member who was the subject of more than five reports or three assigned investigations or assessments alleging child abuse or neglect.

"Custodian" means a person acting in the role of the parent with or without a legal order. A custodian generally is a person who provides for the child's health and welfare on an ongoing basis by performing such functions as enrolling the child in school, securing needed medical attention, and providing a home for the child.

"Division Administrator" means the administrative head of the Division of Children and Family Services of DHS.

"Educational neglect" means that the child fails to attend school due to a pattern of failure on the part of the PRFC to ensure that the child is enrolled in school, allowed to attend or assisted in attending school. As indicated in Sections 10-103 through 10-109 of Title 70 of the Oklahoma Statutes, the school district is to exhaust all available means to compel attendance prior to an investigation of educational neglect being initiated. Truancy does not constitute educational neglect.

If your child is not enrolled in school, DHS has no authority to question you about anything concerning his/her education. The school district cannot state that you are truant if you are not enrolled in their school system. Even as such, truancy does not constitute educational neglect.

"Truancy" means a child who elects not to attend school despite efforts by the PRFC to encourage and assist in school attendance.

Did you know? Every state has abuse and neglect statutes, however, targeting homeschoolers for additional legislation due to perceptions of a potential link between homeschooling and abuse and neglect may be discriminatory.

Some people have expressed concern over a possible link between homeschooling families and educational neglect or abuse. While the media has shown a few cases nationwide of children that faced harm in a homeschool family - there have been many more cases that are reported of kids from families that do not homeschool. Sadly, child abuse and educational neglect is a problem that occurs in all segments of society. It is not a homeschool issue; it is a societal issue. There are mechanisms already in place in state statutes to deal with parents that do not take care of their children. If there is a reasonable articulable suspicion that neglect exists, the proper authorities may seek a warrant based on a probable cause using already established constitutional and statutory procedures. Imposing additional legislation on innocent and law abiding homeschooling families will not solve the problems of abuse and neglect. If there are truly any families who are neglectful or abusive, whether those families educate their children in public, private, or homeschool, the possibility remains that in a free society protected by constitutional principles there will always be a small percentage of neglect cases that may go undetected.

In any discussion about homeschooling and neglect, parents must always be sure to emphasize that there is a crucial distinction between homeschooling, which is an legally acceptable educational choice; and abuse and neglect, which is a criminally sanctionable deviation from normal behavior among families across the social strata no matter what educational choice they made. Homeschooling is a legal issue that is completely separate from abuse and neglect. How you decide to educate your children has nothing to do with how you conduct yourself in society. Abuse, child neglect, stealing, drug use, reckless driving and the like, have little to do with how children are educated and, unfortunately, can occur in families whose children are educated in public school, private school, or school at home.

Every state has abuse and neglect statutes. In Connecticut, for example, almost anyone you can think of is a "mandated reporter" - not just teachers and public school administrators, but also church officials, doctors, emergency care workers, social workers, and the list goes on and on. Each time a child comes in contact with any of those people, those people are required by law to report any reasonably suspected (read probable cause) child abuse or neglect. The choice of the manner in which a child receives academic instruction has absolutely nothing to do with whether or not a child is being abused or neglected. Home school does not equal neglect, anymore than private school equals neglect or public school equals neglect. Whenever there is probable cause to believe a child is being abused, the existing abuse and neglect statutes require investigation and prosecution upon substantiation of the allegation. Imposing "regulation" or additional legislation of homeschooling regarding curriculum, approval, or portfolio reviews, does nothing to reduce abuse and neglect at all. Regulation based on the assumption that homeschooling "hides" a problem such as abuse is discriminatory.

Part of the problem is that there are many myths surrounding homeschooling, some of which the media perpetuates. One of the more prevalent ones is that kids are isolated, and that "at home moms" who educate their children are isolated. In the recent cases reported in the media, surely the women who murdered their children had contact with their husbands, and other family, as well as their community. Someone must have been aware of warning signs. A person doesn't just wake up one day and murder their children. An unstable parent is an unstable parent, and could just as well do their children harm while they are home from public or private school.

Clearly with the Smith, Yate's and Laney cases, there were issues of mental instability of the parent who perpetrated the crime. This is not a homeschool issue, and it would appear that these children's lives might have been saved had the families, doctors and the community in which these women lived intervened. Mandating that these women have a college diploma, do portfolio reviews, test or vaccinate their children, would not have prevented these children's deaths. The Jackson case in New Jersey is also one which legislators may point to as a reason to regulate homeschoolers. The fact of the matter, and one which the media did not state, is that this family had already been under scrutiny by the Department of Children and Family Services. More at issue in that case is the failures of that government agency, rather than the failures of homeschooling. Additionally, there are certainly enough stories out there of abuse and neglect perpetrated by school employees. Yet with all the rules and regulations out there against neglect, it still happens.

It is unfortunate that the media, in its quest to sell papers or air-time, does not tell the entire story, and we must be ever vigilant to that problem. CBS earlier this year did a story about "The Dark Side of Homeschooling." It was a totally irresponsible piece of reporting, and it was most likely constructed to get ratings. CBS had many complaints about it and lost sponsorship too, when people directed their outrage to the company. Even members of Congress wrote to express their disapproval of this kind of reporting.

With that being said, the questions that some people have raised are: What are the financial incentives for promoting a perception that "more regulation" of homeschoolers is needed? Who might be waiting to provide and to benefit financially and politically from this oversight? Who gets control and power when homeschoolers are regulated? Who are the "stakeholders" who might see homeschooling as threat and therefore need to be kept under close scrutiny and accountability? Perhaps the answer may come from corporate education management companies, unions such as the NEA, testing companies, education administrators, government agencies and social engineers, as well as other associated entities.

In the words of Ann Lahrson-Fisher writing at the Home Education Magazine site (http://www.home-ed-magazine.com/nc/2004/012604.html ) concerning child abuse, "One message does not appear to penetrate official thinking in these cases. Child abusers are criminals. Criminals do not comply with laws that expose their crimes. Revising homeschooling laws to catch child abuse will result in child abusing criminals hiding elsewhere. Refocusing homeschooling laws on child abuse prevention will result in one thing only: a bureaucratic nightmare and the invasion of the privacy of the 99.9+% of homeschooling citizens who are not criminals."

In summary: The more we can distinguish neglect from academic freedom of choice, the better off we are.

Virginia Home Education Association - Homeschooling and Child Abuse: No Connection

[Source: Amended at 10 Ok Reg 4523, eff 8-16-93 (emergency); Amended at 11 Ok Reg 2687, eff 6-13-94; Amended at 12 Ok Reg 395, eff 11-17-94 (emergency); Amended at 12 Ok Reg 1183, eff 5-11-95; Amended at 13 Ok Reg 109, eff 10-5-95 (emergency); Amended at 13 Ok Reg 3637, eff 4-29-96 (emergency); Amended at 13 Ok Reg 2199, eff 6-14-96; Amended at 14 Ok Reg 605, eff 12-12-96 (emergency); Amended at 14 Ok Reg 2288, eff 6-12-97; Amended at 15 Ok Reg 1285, eff 2-25-98 through 7-14-98 (emergency); Amended at 16 Ok Reg 296, eff 11-23-98 (preemptive); Amended at 16 Ok Reg 1950, eff 6-11-99; Amended at 17 Ok Reg 920, eff 4-18-00 (emergency); Amended at 17 Ok Reg 2429, eff 6-26-00; Amended at 18 Ok Reg 394, eff 12-8-00 (emergency); Amended at 18 Ok Reg 2128, eff 6-11-01]