From: Bill Schulte
To: Retta Dunlap
Subject: The history of the legislative effort in 1986/87 to enact a new home study law (now called 166b).
April 3, 2003
After reading your email and the recent Supreme Court transcript I think that my role in this should be to provide an historical perspective, at least primarily. Without being an active homeschooler, faced with working with the DOE of 2003 and their current demands, I’m not able to feel what you and others feel, at least not in the same way. And a solid connection to that emotion is essential, I think, in sorting out which way to go with this.
I also want to say up front that I am not taking the position that the present home study statute should be preserved as is. It was created in 1987 to deal with world as it was then. Even then it was a compromise, as all laws that deal with competing rights must be, and it may no longer fit today’s situation.
So I thought I might write once again and describe the times and events that led up to the legislative effort in 1986 and 1987 that resulted in the current home study law. It might help to give some understanding and understanding always helps.
We began home schooling in 1982 when there were maybe 50 kids in Vermont in approved home study programs. In 1982 the home study statute was very short, maybe several sentences. All it did was authorize the DOE to adopt rules pertaining to the approval of home study programs. The reason for the statute was to cover the situation of a child who couldn’t attend public school due to an illness or disability, that sort thing. It wasn’t enacted with home schoolers like you or me in mind.
As more and more home schoolers, like June and me (and Natalie, by the way), came along, the DOE began adopting rules and changing rules, sometimes in the middle of the year. On their form they asked for all of the things they ask for now but they also asked for methods and materials to be used, the qualifications of the parents to teach, and the for the motives for home schooling. I think that last item was originally asked as, “Why isn’t the child enrolled in a public school?” The assumption being that the desire to home school was always related to dissatisfaction with the local public school. The DOE felt that if the problem with the local public school could be identified and resolved then the child could get back into school where he or she belonged.
Our first application for approval to home school was rejected because we proposed to use the Oak Meadow curriculum. Oak Meadow, now in Putney, VT, was located in Ojai, California at the time. The DOE was only familiar with a few canned curricula at the time and Oak Meadow wasn’t one of them. So that was an instant rejection. With the help of Lawrence Williams of Oak Meadow we were eventually approved that first year.
But then, as now, the requirements and rules kept changing. Natalie’s position at the DOE didn’t exist until created by the new law in 1987. So every summer the task of dealing with more and more home study applications was spread around the DOE office like peanut butter. Several or more consultants would get a stack of applications to go through and approve or reject. This was on top of their normal workload and was not an assignment they relished. Also, because there was no single person conducting this annual review, ease of approval would vary depending upon which pile your application happened to fall into.
The DOE didn’t like to reject applications because the response from parents was unpredictable and sometimes quite emotional. Yet I think the majority of first time applications tended to be rejected. Even experienced home schoolers have trouble meeting the DOE’s expectations of what a home study program should include so imagine what the odds were for an inexperienced home schooler meeting those expectations on the first try. Also, the DOE could reject your curriculum, your qualifications to teach, or even your reasons for wanting to home school.
If the DOE was concerned about the reaction of a particular family to a rejection letter then they simply wouldn’t send one. The statute and their own rules didn’t impose any deadlines. So they had the option of delaying the review until the child was truant and thereby letting the local authorities deal with the problem. Even if this wasn’t an actual strategy of the DOE it was, none the less, how things tended to play at times. The DOE was all powerful in those days.
One thing that the DOE didn’t have, however, was the resources to deal with the growing trend of home schooling. The number of home study applications was doubling every year and there were hundreds of applications in 1985 when a group of home schoolers met in Middletown Springs to discuss the issues they had with the DOE. That group decided to send a delegation to the DOE to present those concerns and I was a part of that group of 3.
We had our cordial meeting but we were told that that there was really nothing that could be done to change the present process except for one option that the DOE was pursuing. To deal with the growing numbers of home schoolers, the DOE was considering asking the state board of education to approve a rule making the 16 or so public school superintendents in Vermont responsible for the approval of home study programs. I remember thinking on the way home that this must have been how Benjamin Franklin felt when he was sent to England with grievances from the colonies only to encounter the Stamp Act!
Approval by public school superintendents would have been a disaster for a half dozen reasons, at least. First, a serious conflict of interest. If the application for home study was approved it would mean less state aid for the district. Why would any superintendent vote for that? Secondly, 16 superintendents would mean approval would depend on where you lived in Vermont (as was the case in Maine where this was actually the system at the time.) Third, the turnover in the superintendents office was, and probably still is, very high due to the stressful nature of the job. Fourth, a good number of parents were opting for home schooling because of problems in the local public schools (poor quality of education being a key reason.) Fifth, most superintendents, as we were to learn later in the legislative process, are strongly opposed to home education on philosophical grounds and many are highly suspicious of parents, generally. At least of parents who are not typical and home schooling parents fall into that category. Sixth, denial by delay was likely to increase because the superintendents were already overworked and approval of home study programs would not be high on the list of things to do.
A legislative challenge seemed to be the only thing to do though, as Frodo said, “We did not know the way…”
The essential concept behind our effort was to nail down in the statute, as opposed to the DOE rules, the requirements for home study both on the part of the parents and the DOE. One of things the new statute must do (and did do) was to remove the authorization of the DOE to adopt rules pertaining to home education.
We were also intent on incorporating into the statute the recognition that the right of parents to home school was very strong and that the DOE’s interest in home schooling was limited to assuring that the child was receiving the minimum course of study. Motives and methods and even parental qualifications to teach should not be subject to state approval. Instead, poor results from the program (or a poor plan to begin with) should be the only basis on which to deny a parent’s right to home school. And this denial should only be by means of due process administered by an impartial hearing officer.
In 1986 we submitted a statute called “Reporting Home Schools”, fashioned after the “Reporting Private School” law in place at that time. It basically said that we would give name, rank, and serial number of each child to the state and that was it. It made reference to the course of study and not much else, as I recall. I don’t remember a lot of the detail of that proposal because those details have since been replaced by the details of what eventually passed in 1987. But I do remember the politics.
The Reporting Private School law was rammed through the Legislature a few years earlier by the pastor of Trinity Baptist Church in Williston. It created a legal option for operating a private Christian school in Vermont with virtually no oversight whatsoever by the state. It passed because of the particular makeup of the Legislature that year and the fear that people had of this particular minister and his supporters in the Legislature. The DOE opposed this bill but they underestimated the support that it had and were not able to mount an effective opposition to it. So it became law and a sore point with the DOE ever after.
Then we came along and proposed essentially the same thing for home study programs. We, of course, were not prepared for the degree of backlash from both the DOE and from those legislators who were opposed to the Reporting Private Schools statute but who failed to defeat it a few years prior. One of these legislators was now chair of the House Education Committee.
We would have been doomed from the start except that the truth was on our side. The DOE had been unreasonable with their rule changes and plans to put superintendents in charge. And the constitutional arguments for the rights of parents were strong, as were the results from home study program. The kids were doing great as compared to their public school counterparts.
So when it finally came to a vote in the House Ed Committee, the chair of the committee and her first lieutenant voted against the bill. The other 9 members voted for it, however, and it was sent to the full House where it also passed! In reality, though, she had defeated the bill because she delayed it so long in committee that there would not be enough time for it to be considered in the Senate. So the bill died, being the second year of the session. But various House members told us we had succeeded in sending a strong message to the DOE.
It was a message that fell on deaf ears, however, for all of the same problems reappeared the following year and were exasperated but the ever growing numbers of application for approval of home study programs. Many, many parents didn’t receive their approval prior to the start of the school year. More changes in the rules came down and there was more talk of turning the whole thing over to the superintendents.
In the weeks that followed the defeat of the bill we considered what to do next. It was a question that would emerge unexpectedly and frequently. We had not yet applied for approval for the coming year and, in fact, we were still recovering from the frenzy and expense of the previous legislative session.
I spent a lot of time in the weeks that followed the end of the legislative session thinking about why the bill had failed, why individual legislators were opposed or supportive, and why the DOE was opposed. In short, why didn’t the bill, as submitted, pass?
On the 4th of July, June and I had a long discussion and reached the conclusion that we should go back the following year and try again. Not with the same bill but with one that was a better reflection and a better balance of the rights of all involved; parent, children, and society as a whole, as represented by the State of Vermont.
The fact that the previous bill had failed to strike a good balance between the rights of all interested parties was, in my opinion, the root cause of why the bill had failed. And even if we had been powerful enough to force such a bill through the legislature it would have been unstable and constantly subject to challenge in both the legislature and the courts for this same reason.
So we began with the question of where the lines should be drawn and what we believed about the rights of all concerned. We felt that the strongest rights were parental rights if for no other reason than the fact that the parents have the greatest degree of responsibility for the education of their children, and for their children in general. And the rights of biological parents have always been strongly upheld in the courts. Add to this the religious arguments that children are God-given and some would argue it naturally follows that parental rights are also God-given. Of course, many legislators tend to believe that rights must also be recognized by the Legislature via legislation and interpreted by the courts, as a practical matter.
Children have a right to an education. They also have a right to be raised free of abuse and neglect. Handicapped children are also guaranteed certain rights by federal law and any state statute must not be in conflict with existing federal statutes.
Society has a right to know that children are being educated and cared for, both physically and mentally, and so will become productive, tax paying citizens and not end up being a burden on society or forced to turn to a life of crime to survive. The state also has the right to require that all children be offered learning opportunities in the same subject areas, ie., the Minimum Course of Study, S.906, regardless of the educational setting; public schools, private schools, or home study programs. This latter point is rooted in the Vermont Constitution, case law, and in the notion of the equal protection of the law.
With respect to parents educating their own children at home, we believed that the state’s interests were very narrow, in contrast to parents’ rights and responsibilities which normally should trump the rights of the state. The state’s rights, in our view, only become significant or dominant in cases where a child is being abused or neglected or uneducated in some important respect. Beyond that, we believed that the parents should have broad scope and freedom to educate their children and that such freedom should not be encroached upon by the state so long as the program was producing satisfactory results.
We also believed that parents have a right to teach their own children at home if they want to and should not be compelled to send their children to a public or private school without a very strong reason on the part of the state. As such, home education should not be subject to the approval of the DOE and should be simply a reporting process or an enrollment process. The process should provide enough information and visibility such that the state can be reasonably assured that learning opportunities appropriate the child’s age and abilities are being offered in each area of the course of study. The bill should also provide a clear process by which the state can challenge an enrollment when it believes that a child might be at risk of not receiving an adequate education.
We believed that parental qualifications to teach, parental motives for home schooling, and methods to be used should not be part of the enrollment process. The emphasis should be on the results of the program and not on how those results are achieved. The plan at the start of the year should state the educational goals for the coming year. The evaluation at the end of the year should indicate to what degree those goals were achieved.
We felt that it was imperative that specific timetables be incorporated into the bill so that the things would not drag on forever or to the point where a child could be declared truant.
We felt that the process should stay at the state level and should not be delegated to the public school system superintendents. This meant that the new bill had to deal with staffing and funding shortfalls at the DOE.
We considered the question of the burden of proof. That is, is it up to the parents to demonstrate that the home study program is sound or is it up to the state to demonstrate that it isn’t? We heard arguments for both positions during the legislative session. In the end, we opted for a compromise. Prior to enrollment, the burden is on the parents to demonstrate that the program is sound and adequate and that the results from the previous year are acceptable. After enrollment, the burden would shift to the state to demonstrate that any concerns they may have about a program already underway are such that enrollment should be ended.
The issue of handicap children also had to be addressed since that was another reason some legislators and the DOE gave for opposing the bill. The original bill didn’t deal with handicap issues at all. The DOE asked that children who had never been enrolled in a public or private school or a home study program undergo a “screening” for handicap conditions. They assured us that a “screening” was far different, and less intrusive, than a full comprehensive evaluation. The screening might indicate that a comprehensive evaluation was needed but for most children this would not be the outcome since most children are not handicapped.
In the early 1980’s, parents were faced with yet another restriction in the home study approval process. The options for end of year evaluation were steadily shrinking. We had reached a point where the only option for the end of year evaluation was a state certified teacher evaluation by a teacher who was actively teaching in the public school system at the child’s grade level. This proposed change would mean that parents would have to find one or more new teachers to evaluate their programs every year. We wanted the new bill to specify a number of options for the end of year evaluations and we were opposed to the requirement that a certified teacher must hold particular credentials.
So we drafted a completely new bill and presented it at various meetings of home schoolers that summer. There were some who wanted to try again with the same bill as the previous year. But most present at those meetings were convinced that the bill would not pass in that form and would be unstable even if it did somehow pass. Above all, parents wanted a stable, fair, and predictable process that wasn’t going to change year to year. The new bill was a far more moderate proposal and one that addressed the objections of those who had opposed the bill the previous year. As such, we felt that the chances of it being enacted into law were far greater.
One more thing happened that also greatly increased the likelihood that the bill would pass. We decided to introduce the new bill in the Senate rather than in the House. We felt that a win in the Senate, on the heels of our previous win in the House with a more radical bill, would make for easy sailing in the House with a new, more moderate bill. We not only found a sponsor for the bill in the Senate, but 7 co-sponsors! 26% of the Senate already favored passage and the DOE took notice immediately! The fact that one of our sponsors was also the Senate Pro Tempore didn’t hurt either. Howard Dean was the Senate President that year and he was also supportive. With the Senate leadership in favor it was far more likely that the bill would not be tabled in committee as had happened the previous year.
Former Governor Phil Hoff was the chair of the Senate Education Committee that year. When the day arrived to hear testimony on the bill, I presented the parents point of view on how things were going with the current approval process. For example, more than 80 applications hadn’t been processed by the time the school year began. The children in those programs were all truant. The representative from the DOE then spoke and was quite defensive of the DOE and expressed “disappointment” that we had decided to reintroduce legislation rather than work with the department to resolve our concerns. At this point, several senators who had been involved, albeit briefly, the previous year expressed their disappointment that the DOE “hadn’t gotten the message” that the House had sent less than a year ago.
Governor Hoff listened to all of this and then asked the DOE representative what, specifically, the DOE objected to in the bill. The objections were actually relatively few (for example, our bill originally required the DOE to obtain a court subpoena in order to obtain more information from parents! The DOE felt that was a bit over the top. They also had timetable and funding issues.) From this answer, Governor Hoff concluded that the parents and the DOE weren’t far apart on the issues and that it ought to be possible for us to come up with language we could all agree to. Somehow he conveyed a not so veiled threat to the DOE: either they reach agreement with us on some new language for the bill or it was likely to pass in its present form.
So several meetings were held with the DOE and we ironed out their concerns about subpoenas, timetables, funding levels, etc. We returned to the Senate Education Committee with language supported by all and the bill passed in committee and then in the full Senate on March 20th that year, in time for crossover.
It should have been smooth sailing from there but it was not. Although the bill had passed the House 87 to 59 the previous year, there were still 59 who voted against it. And most legislators had been either very in favor or very opposed to the bill. The House Education Committee had an entirely new cast of players consisting of some veteran members who were strongly opposed to home education and some members who were new to the legislature entirely. The latter members were a bit dumbfounded by the emotion our bill evoked among some of the committee members and it took quite a few meetings before they found their voice and eventually showed their support for us. I think the committee chair may have felt that her predecessor had been “undone” or “derailed” by the home school bill the previous year and, if so, she would naturally want to avoid a similar fate.
Amendments to the bill in the form of language changes came fast and furious, many of which were regarded as very hostile by parents. It actually got to the point where we talked of strategies to kill the bill if it ever got to the floor of the House in its mutated form! I think even the DOE was becoming uncomfortable with some of the proposed changes. Many of the snags had to do with the fact that the leadership of the House Education Committee seemed to believe that home study should be an approval process rather than an enrollment process, if it were allowed to exist at all. Also, many snags dealt with the question of handicapped children. It was a struggle to find compromise language that both the DOE and parents could accept, yet still guarantee the rights of handicapped children as defined in federal law. The chair of the House Education Committee also employed various parliamentary tactics to delay the bill. One such tactic was to declare that the bill was simply a low priority item and that no further testimony could be scheduled until the last week of April, thereby assuring that the bill would have to be carried over until the following January. This would mean more time and expense and another year of the approval process.
It was at this point that Governor Hoff became involved again. He was hearing from parents and from the Senate sponsors of the bill how badly things were going in the House committee. I was talking with him by phone one evening in April and he interrupted me and said something to the effect that I shouldn’t worry about this any more. He also said that I shouldn’t ask him why this was so. So I didn’t. Within a few days of that conversation things turned around completely. The House Education Committee passed a version of the bill that was essentially the same as what had come over from the Senate and the bill soon passed in the full House, as well. I never did find out what strings were pulled to make that happen, nor did I ever ask. It reminded me of the adage that it’s better not to know the details of how sausage and laws are made. It also reminded me that the most important thing in politics is to send good people to Montpelier and Washington because people will use the power they’re given in a manner consistent with their character.
The average life span of a statute, I’m told, is five years. The fact that 166b has endured for 16 years is one indication that it achieved a reasonable balance of the rights of parents, children, and the state. There are now 2100 children enrolled in home study programs and only a dozen or so hearings have been called under the statute to challenge the enrollment of children in home study programs. It also occurs to me that if the home study statute were revoked tomorrow, and all of those children were required to attend a public school, then the state would have to find another $15,000,000 to $20,000,000 in State Aid to Education for local public schools. That’s not an insignificant sum.
That said, it has not been a perfect law, from any perspective, from the beginning since it was a compromise, as all laws dealing with conflicting rights must be. It may also be true that the lines drawn in 1987 have become blurred and that the state has found new ways to make the enrollment process, in practice, an approval process. Parents continue to experience acute anxiety whenever they find a letter from the DOE in their mailbox or their caller ID says, “State of Vermont.” And there are still many children in the state who are outside of the process altogether and who are technically truant. So there’s more work to be done. The next step, it would seem, is to decide on specific goals to be achieved and then to select the best means of achieving those goals.
In closing, I want to point out that this is the history of the legislative effort as I remember it 16 years later. In places, I've expressed my impressions and my beliefs about the motivations of others during this process and those perceptions may or may not be an accurate reflection of why people acted as they did. I encourage others to share their remembrances, as well, to give a more complete picture of those events.
Bill Schulte
March 31, 2003