Department of Education (DOE) Advisories on Home Education
Role of the DOE in Home Education: DOE is not involved in setting policy
In this section:
The Draft Home Education Advisory was originally composed eight years ago, and has been revised two times. [See Chronology.] While the Department of Education (DOE) has not issued the Advisory to all Massachusetts Superintendents, the Department does send the Draft Advisory to Superintendents who call the Department for advice on troublesome homeschool issues.
Two main trouble spots were spelled out clearly in the cover letter sent with the Annotated Advisory.
1)"Prior Approval" Issues
The current Draft Advisory could result in needless and fruitless legal proceedings initiated by superintendents who are faced with a situation of a family beginning homeschooling without prior approval. The current Advisory does not help superintendents to recognize that judicial intervention is not an appropriate option in response to a family who begins homeschooling despite lack of "prior approval". Though theoretically possible, commencement of legal action is not an effective step when both the superintendent and the family are trying to bring the family into compliance. See the Annotated Advisory for more detail.
2) Special Education Issues
The current Draft Advisory might lead superintendents to believe that they have an enlarged duty towards special needs students who are homeschooled. The Advisory now indicates to superintendents that they have an obligation to exercise a different standard of approval for cases of special needs. We cannot see the legal basis for this advice, but we can see that this section of the Advisory has great potential for damage to families wishing to homeschool a special needs child. Often, the parents choose to homeschool because the child is not progressing in the special needs program at the school, yet those same children make dramatic improvements home. Some experts even counsel that home education is the best solution for special needs children. Given the evidence we see, it would be appropriate to presume that the special needs child will progress at home. In any case, the regular approval process, outlined in Charles, covers all children in the Commonwealth. Special needs children should not be singled out for a different approval process.
In a Memorandum, dated January 4, 1980, Rhoda Schneider, General Counsel, issued an "Advisory Opinion on Home Education," informing superintendents and school committees of the 1978 Perchemlides decision. The memo concluded that while the Perchemlides opinion, as a Superior Court decision, had limited precedential value, it provided "the best judicial guidance available and offer[ed] a reasoned approach to approval or disapproval of home education requests."
In a Memorandum, dated April 17, 1987, Harold Raynolds, Jr., Commissioner of Education, explained that Rhoda Schneider, General Counsel, was providing an advisory opinion explaining the recent Charles decision.
The Department issued an Advisory Opinion on Home Education.
The Legal Department issued a Draft Advisory on Home Education in 1996, seeking to answer frequently asked questions. Juliane Dow, Legal Counsel, asked for and received responses from representatives of MHLA, MassHOPE, Holt Associates, and HSLDA.
Among the concerns expressed by MHLA, via an August 1996 letter from Loretta Heuer, Legislative Liason, was that the tone of the advisory was needlessly adversarial. From the letter:
After homeschool organizations, attorneys, and practitioners offered substantial and substantive feedback on the August 1996 draft, the draft was tabled.
The Department published a new Draft Advisory, May 1999, in order to include notice of the Supreme Judicial Court's decision in the Brunelle case. However, the 1999 Advisory revealed little, if any, attention paid to the 1996 feedback of homeschool organizations. Many troublesome points still remained in the Draft Advisory.
In her letter of July 1999, Loretta Heuer, MHLA Legislative Liason, stated:
Again, homeschool organizations offered substantial and substantive feedback, and received no official response from the Department.
The DOE rewrote the 1999 Draft Advisory in order to include notice of the Superior Court's decision in Care and Protection of Ivan. The 2000 Advisory revealed scant revision of the 1999 Draft and included some new troublesome points. MHLA and other homeschool groups remained unaware of this new draft until the following year.
An MHLA phone call to the Department revealed the existence of the August 2000 Draft Advisory, then one year old. The DOE legal counsel, Elizabeth Kelliher, indicated a willingness to receive feedback from homeschool organizations. After a face to face meeting with representatives of MHLA and MassHOPE, Ms Kelliher requested that homeschool organizations prepare one single document of suggested revisions and corrections. Through a cooperative effort, Massachusetts homeschool groups submitted the Annotated Draft Advisory, providing extensive documentation for the suggested revisions. In this process, MHLA solicited input from Massachusetts homeschoolers via the MHLA email list and via the MHLA Update subscriber list. All contributions were included; we found general agreement on what we all would like the new Advisory to say.
The 2000 Advisory remained in draft form. The DOE's legal counsel explained she read the Annotated Draft and discussed it with the General Counsel. She proposed to rewrite the Advisory with our comments in mind, then share the Draft with us for further comment. However, the Legal Department of the DOE is severely understaffed and the Home Education Advisory was not rewritten.
As of April, 2003, the Department is still severely understaffed and facing immense litigation challenges. The Home Education Advisory has not yet been rewritten.
Although the DOE attorney met in the summer of 2003 with representatives of Massachusetts homeschool groups, as of July 2004 the DOE has yet to issue a revised Home Education Advisory.
The MHLA Board is concerned that the 2000 Draft Advisory has not yet been supplanted. However, we deem it of utmost importance that any new Advisory is an IMPROVEMENT over the old one. As MHLA's 1996 letter stated:
MHLA is concerned that homeschoolers' concerns are incorporated into whatever new Advisory is issued. However, even having a new and improved DOE Advisory in the hands of every superintendent will not spell the end of any extralegal requirements made by superintendents. There will always be uninformed administrators who come to Massachusetts homeschooling for the first time. Homeschoolers themselves need to remain acutely aware of Massachusetts regulations. An excellent source for accurate information is Information for Superintendents.
MHLA is publishing both the DOE Draft Advisory and the homeschoolers Annotated Draft Advisory on this website so that all homeschoolers will know what the DOE is telling superintendents, and be prepared to respond, if necessary.
Massachusetts Home Learning Association
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