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A Texas appeals court’s recent decision in a homeschooling case helps clarify a previously muddied aspect of the state Supreme Court’s opinion in Texas Education Agency v. Leeper.   We all know that parents have a right to educate their children at home. But does that mean that they are completely free of any regulation or inquiry by the local school district?

The case involved the McIntyre family, which withdrew their children from a private school in favor of homeschooling in 2004. Two years later the district received an anonymous tip, suggesting that the children were not being educated.  Later, the grandparents of the children met with the district’s attendance officer and expressed concerns that their grandchildren were neither attending school, nor receiving a proper education.

This prompted an investigation, pursuant to which the attendance officer discovered that the oldest of the McIntyre children had run away from home in order to enroll herself in high school.   The girl could not provide any information about the level of her education or the curriculum being used with the McIntyre children.

District officials sought information from the parents about the nature of their homeschool arrangement, but were rebuffed.  Ultimately, the district truancy officer, Mark Mendoza, filed official complaints against the family. In response, the McIntyres lawyered up via the national Home School Legal Defense Association, and filed a lawsuit seeking an injunction and money damages.

The truancy charges were eventually dropped when the assistant district attorney determined that no family member was willing to testify.  However, the suit filed by the McIntyres proceeded.

In its decision, the El Paso Court of Appeals dismissed the parents’ state law claims on procedural grounds.  The more substantive aspect of the decision addresses the constitutional/religious issues.

The parents asserted a “fundamental liberty interest” that was allegedly violated by the truancy officer’s inquiries and charges.  But the court flatly rejected this, noting that “In Leeper, the Supreme Court specifically authorized inquiries into the curriculum of home schools.”

The parents asserted a “fundamental right to be free of any state supervision or regulation concerning whatever education they choose to provide to their children in their home.” Again, the court was emphatic: “[The McIntyres] provide no support for such a right…”  The court went on to observe that “nothing in Leeper—or the Education Code for that matter—precludes an attendance officer from requiring the McIntyres to produce evidence regarding their chosen curriculum.”

In short, parents may choose to educate their children at home, but they do not  have “an absolute constitutional right to educate their children in the home completely free of any state supervision, regulation, or requirements.”

Tony Safi, a partner with Mounce, Green, Myers, Safi, Paxson & Galatzan, P.C. and a past chair of the Texas Council of School Attorneys, represented the district in the case and agreed to be interviewed for this column.

Texas School Administrators’ Legal Digest: Is this case over, or is it going up on appeal?

Mr. Safi: No motion for rehearing was filed. The deadline to file a petition for review in the Texas Supreme Court is September 20.

TSALD: Was the Texas Home School Coalition involved in the litigation, or just the national group from Washington State?

Mr. Safi: The Texas Home School Coalition was not involved—at least not in any visible way. Prior to the time that the McIntyres filed suit, two letters were submitted on their behalf by an attorney with the national office of the Home School Legal Defense Association in Virginia.

TSALD: What would you advise your clients to do with parents who provide the typical “letter of assurance”?

Mr. Safi: My advice would normally be to accept a [signed] letter of assurance (as discussed in the latest TEA “Home Schools” advisory letter) at face value, unless other factors indicate that further information may be needed.

TSALD: What would you advise when parents refuse to provide this?

Mr. Safi: I would probably advise that the attendance officer should try to obtain additional information. Ultimately, the attendance officer should seek to be reasonably satisfied that the Leeper requirements are being met in the home, with or without a signed letter of assurance. If the attendance officer is unable to obtain sufficient information and the parents refuse to cooperate, then consideration, based on the totality of the circumstances, should be given to initiating a truancy proceeding, perhaps ideally in consultation with the school attorney and/or prosecuting attorney for the applicable jurisdiction.

TSALD: If a parent provides the letter of assurance, what would trigger a need to investigate further?

Mr. Safi: Other credible information that effectively calls the letter of assurance into question. Again, I would advise that the attendance officer should carefully consider the totality of the circumstances.


For more on El Paso ISD v. McIntyre, be sure to check out the latest issue of Texas School Administrators’ Legal Digest.  

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