Following are excepts from the Amicus brief I submitted in the Brunelle case. An amicus curiae, or "friend of the court" brief can be submitted by interested parties on their own behalf, if the judge in the case agrees to accept the brief. In my case, I decided to submit the brief when the Superior Court judge asked for amicus briefs to help him understand the Lynn home visits case. My lawyer husband was invaluable in making sure that I followed the proper court procedures so that my submission was favorably received. Since the Superior Court judge (the lower level that ruled in favor of Lynn) accepted my brief, the justices of the Supreme Judicial Court saw fit to accept the (revised) brief as well. Nicky Hardenbergh

Interest of the Amicus

I am an experienced homeschooling parent of two children, ages 15 and 18, who have never been to school. Our homeschooling has been successful, and I would like the law of the Commonwealth to develop in a way that encourages, rather than impedes, homeschooling as an alternative educational experience that parents might choose for a wide variety of reasons.

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Discussion of Nonessential Nature of Lynn Requirement of Home Visits

None of the three purposes that Superintendent Leonard mentions as justifying home visitation is "essential" to the School Committee's performance of its statutory task.

A. "Schedule Followed" Is Not Essential

Superintendent Leonard refers to the need to verify that a "schedule . . . is followed" as a reason that a home visit is "essential." While the following of a schedule may be an important consideration in the classroom where there are pre-existing schedules to maintain and coordinate, in the homeschool the perception and use of time are quite different.(footnote 1). In our world pressed for time, homeschoolers have an incredible luxury: a relatively large amount of control over their time. The novelty of this luxury leads some non-homeschooling parents to comment, "I would never have the self-discipline to do homeschooling." What those parents do not realize is that one develops self-discipline only by being immersed in unstructured time, just as one best learns French by living among French speakers. The lack of an externally imposed schedule helps homeschool families to understand the process of learning at a profound level. Parents can observe and accommodate the multiple variations (from child to child, subject to subject, day to day) in the process of learning. Individualized pacing means that students need not spend extra time on a concept already mastered or be forced ahead to new material before understanding the old. Thus, imposing "a schedule that is followed" would unnecessarily weaken one of the greatest strengths of homeschooling. Certainly, verifying that homeschool parents have "a schedule that is followed" is not "essential" to ensuring that children are receiving an education.

B. "Materials" Need Not Be Viewed In The Home

Another purpose of the home visit, according to Superintendent Leonard, is the determination "that there are materials present." (footnote 2) While Charles holds that the "superintendent or school committee must also have access to the textbooks, workbooks, and other instructional aids to be used by the children," id. at 339, this access could easily be achieved if the parents brought the materials to the school. The home visit is not "essential" to achieve that purpose. Furthermore, some of the most effective curricular materials may not be "visible" at all: travel, community service, and meetings with various resource people may all be important learning experiences. There is no indispensable need, then, for a home visit in order to observe "that there are materials present."

C. Viewing "Instructional Space" Is Not A Valid Reason For A Home Visit

Superintendent Leonard identified only one purpose that would necessitate a home visit: a purported need to verify that "there is an instructional space available." Certainly "space" is something that could be readily quantified, but the need for a school official's coming to the home to measure the size of the kitchen table hardly seems substantial. What would be considered insufficient instructional space? What if the children, despite what was considered insufficient instructional space, achieved at high levels on their standardized tests? In that instance, an adverse "space" finding during a home visit would not have been "essential" to determining whether the children were gaining an education. In sum, the intrusion is wholly disproportionate to the usefulness of the purpose that is said to be its warrant.

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1) Home Education Is Not "School At Home" And Cannot Be Evaluated Using Classroom Methods

Those engaged in traditional models of education often expect homeschooling to replicate the classroom, with children sitting around the kitchen table and their mother standing above giving "lessons." Certainly, a number of families homeschool in just that way, but many others use a less formal approach, conceiving of education as much broader than "school at home." Homeschooling allows parents to make primary the needs of their children and their children's particular learning styles; this individualization, though known to be effective, is simply not possible in the regular classroom. (footnote 3) In the informal, individualized approach to education, the structure of the learning experience might well be invisible to the inexperienced observer, making any useful assessment by observation impossible.Indeed, long-time homeschool parents have discovered to their delight that the most valuable and lasting education derives from permitting their children to following their own interests, while the parent acts as a "facilitator." This method of education is very different from that of the regular classroom.

Clearly, however, the Lynn school officials anticipate observing a home education process that resembles the classroom experience. Observation of a classroom makes sense: the teacher is being evaluated to determine if she is worthy of employment. The teacher's supervisor would indeed observe the very kinds of details that Superintendent Perulo expects the principal to observe during a homeschool visit:

So he [the principal] goes in, he observes what's happening, he observes the instruction, he observes the teacher doing certain things, he observes the students doing certain things, he sees the interactions, he sees the use of materials that's consistent with the curriculum that's stated in the plan, and he gets admittedly a subjective judgment, but based upon years of experience, that there is indeed instruction going on and he can tell if it's made up or if it's not made up.

App. at 28.Certainly, a public school employer should know such details about the classroom management skills of its teachers. In the homeschool, however, the parent is not an employee of the school system. The home, furthermore, is not an institution for mass education.

Assistant Superintendent Perulo appears not to appreciate how education might take place in a non-institutionalized setting. He is not alone; even experienced homeschool parents have found that it takes many years to comprehend how best to take advantage of this incredibly flexible way of learning. For example, as a former history teacher, I have been astounded by the amount of historical knowledge that our children absorb and retain from a variety of sources, using very few textbooks; in school teaching, when I had occasion to teach the same children for two different years, I would often be dismayed that they had retained almost nothing of what they had "learned" in the traditional history classroom.(footnote 4) The two ways of education are profoundly different.

2) Authentic Assessment Is Not Possible Through a Home Visit

Because many homeschools do not function in the same way as a classroom, a randomly chosen forty-five minute period might include no observable instruction. What would the observer make, for example, of watching a child read a novel or practice an instrument for forty-five minutes? The observer might well have an enjoyable and interesting visit, but almost certainly the family would suffer needless anxiety. Their "familial privacy" would be violated by an unnecessary and unproductive observation. The futility of using "observation" in measuring the "process" of homeschooling is not unlike the difficulty that quantum physicists encounter in trying to measure subatomic activity. In order to measure the position and momentum of an object at a certain moment, "we must touch it with something that will carry the required information back to us. That is, we must poke it with a stick, shine light on it, or perform some similar act. The measurement process itself thus requires that the object be interfered with in some way."(footnote 5) Similarly, the home visit could not possibly be an observation of what the family would be doing when not being observed. The official would, of necessity, be observing a "performance" of some kind. He would be prevented, by the very fact of his existence as an observer, from authenticating how the family functions on a day-to-day basis. Thus, the observation could yield nothing "essential" to the determination of whether the children are receiving an education.

Seeking An Effective Way To Understand Home Education

If the homeschool cannot be equated with the classroom, is there another way that we might seek to understand home education more fully in order to determine whether a given requirement, in this case home visits, might be "essential?" A fuller understanding should help to avoid judgments based upon false analogies.

A. Avoiding Inaccurate Concepts

The Superior Court Opinion, perhaps sharing Lynn's intuitive expectations, also adopts a mistaken conception of home education, albeit a different one from that of the school officials. In his decision, Judge Welch draws an analogy between home visits as a component of the evaluation of home education and site visits as a part of the process of inspecting building construction: "a condition of th[e] building permit would allow the building inspector (without a warrant) to come within the house to insure that the addition had been properly constructed." App. at 139. Certainly, if the home visit were "essential" to determining whether education were taking place, the analogy would be apt. However, a building, unlike "education," is a physical object that can only be evaluated by visual inspection of the thing itself. "Education," on the other hand, is a non-physical occurrence, the measurement and evaluation of which continues to be a subject of intense controversy among professional educators.A more appropriate comparison would equate a building inspector's review of a building to a school official's review of standardized test results. In both instances, the outcome, not the process, is evaluated. If the building inspector were to inspect the "process," in a way analogous to the home visit, the inspector would sit for forty-five minutes on the construction site, watching the carpenters at work. Clearly such an "inspection" would not be considered "essential" to determining whether the finished building complied with the building code.

B. Toward A More Accurate Concept Of Home Education

Since virtually every adult in our society has attended school, most people have a very difficult time imaging learning outside of an institutional setting. Nevertheless, it is important to separate the two concepts. "Learning" does not equal "schooling." It is the non-institutional nature of home education that provides its greatest advantage; home education should not be regulated to make the process more "school-like." Instead of analyzing home education in terms of analogies to known institutions such as classroom learning and building inspection, one might find a comparison to gardening more fruitful. Gardening, like education, contains a number of acknowledged variables that contribute to a successful outcome. In evaluating produce from a garden, the "essential" information would be how the vegetables tasted or how the flowers looked, not whether the gardener had been weeding or fertilizing or taking a nap during the "garden visit."As I would apply the gardening metaphor, it would be a mistake to assume that the parent is the gardener and that the children are the "produce." Both parents and children are "cultivating" themselves, making full use of their natural curiosity in ways usually not possible in the school setting.(footnote 6) The parent might be considered the more experienced gardener, but both parent and child are engaged in learning. A major strength of the homeschooling process is that the "teacher" does not have to "know" everything that the student might need to learn. With the flexibility of individualized instruction, the parent is often in the position of helping the child to find information rather than "instructing" the child. As the child develops, the parent and child might well be learning together. The misconception that a competent teacher must know "everything" perhaps stems from the historical situation in which the teacher was one of the most educated persons in a community. Today, however, many people in our communities have obtained higher education. Moreover, homeschool parents and children have access to abundant sources of information, including:

• the public library and its professional librarians
• well-stocked local bookstores with their enticing collections of skillfully crafted non-fiction offerings for children
• mail-order companies serving homeschool families with informative catalogues detailing all sorts of educational materials
• Massachusetts Educational Television and New Hampshire Public Television's Knowledge Network broadcasting of such courses as French in Action and The Power of Algebra during school hours.
• packaged curricula, such as Calvert, providing a full K-12 program for independent learning.
• programs at local museums, such as the science course for homeschoolers offered at the Boston Museum of Science during school hours.
• internet educational sites, such as the San Francisco Exploratorium's site that allows participants to run genetic experiments on cyber fruit flies
• Cable in the Classroom magazine, which alerts teachers to educational programs on television and to the lesson plans provided online by the networks
• correspondence courses through extension divisions of universities such as Indiana University's high school program
• distance learning via computer, such as Stanford University's Education Program for Gifted Youth
• instructional videotapes, such as those available for rent or purchase from The Teaching Company
• local college level course offerings, such as those at the Harvard Extension School, all open to high school age students
• advice and support of other homeschool parents through local and online support groups (perhaps the single item of greatest value).

This list indicates the rich variety of sources of information and expertise that homeschool families may utilize in their educational endeavors. Before making any determinations about home education assessment, educators and judges should understand the diversity of methods of learning that are available to homeschool families. Once one discards the false analogy to the classroom and recognizes the incredible variety of experiences through which homeschool families can achieve satisfactory end results, one realizes that any meaningful assessment by observation in the home is impossible.

Conclusion

Much more could, and has, been written about the nature of home education and the satisfaction that growing numbers of families find in homeschooling. Here I merely try to provide enough information about the structure of home education to demonstrate that home visits are not an effective, and certainly not an "essential," method of evaluation. The burden in this case, however, should rest with Lynn. If the home visit were truly "essential," Lynn ought to be able to establish that fact. Rather than insist, without evidence of its "essential" nature, on home visits in order to evaluate home education, the School Committee would do better to use those methods of evaluation that both parties accept. Lynn might also acknowledge that homeschool parents care deeply about the quality of the education that their children receive, for parents would not otherwise make the commitment of time and finances necessary to take on the full responsibility for their children's education. Homeschool parents share with all educators the goal of helping the next generation achieve its full potential.(footnote 7) Because no educator has a perfect understanding of the ingredients that are necessary to the success of this enterprise, the Commonwealth would do well to allow great flexibility to homeschools.Thus, for pragmatic as well as doctrinal reasons, the Court should determine that G.L. c. 76, § 1, does not permit Lynn to impose a mandatory requirement of home visits as a condition of the School Committee's approval of a home education plan. In particular, since the home visit requirement has not been, and indeed cannot be, shown to be "essential" to the evaluation process, the Court should determine that the requirement is impermissible.

Respectfully submitted

On her own behalf, Nancy N. Hardenbergh April 7, 1998

Footnotes:

1. Judge (now Justice) Greaney made the following observation in an important pre-Charles home education case, Perchemlides v. Frizzle, No. 16641 (memorandum of decision on motions for partial summary, November 13, 1978), a copy of which appears in the addendum:

[t]here are certain ways in which individualized home instruction can never be the "equivalent" of any in-school education, public or private. At home, there are no other students, no classrooms, no pre-existing schedules.

Perchemlides at 17.

2. School officials should not necessarily expect homeschool educational "materials" to match school textbooks. The flexibility of home education allows parents and students to search for approaches to learning that are most effective for the individual student. As Judge Greaney observes in Perchemlides,

[t]o require congruent "equivalency" is self-defeating because it might foreclose the use of teaching methods less formalized, but in the home setting more effective, than those used in the classroom. For example, certain step-by-step programs of graded instruction . . . might be unnecessary when the parent-teacher enjoys a constant communication with the child, and so is able to monitor his or her comprehension and progress on an individualized level impossible in a school setting.

Id. at 17.

3. One college professor who homeschools his children relates that he first considered homeschooling when he was working on a master's degree in curriculum and instruction. He noted that research indicated that individualized lesson plans were effective. "But my instructors were careful to point out that while such planning was a great idea, it was impractical for a teacher with 30 or more students." Wallis C. Metts Jr., Home Sweet Hassle, Educational Leadership 72 (October 1996).

4. Another teacher reports on his experiment to determine how much information his students retained. David Guterson, author of the acclaimed novel, Snow Falling on Cedars, is also a homeschooling parent and high school English teacher. In his previous book, Family Matters, he describes his experiment. After preparing students all week for a multiple-choice test on a particular topic, he administers the test on a Friday. The following Monday, without warning, he gives them the identical test. In the five times that he has conducted the test, "none-no one-has ever received an equal or higher grade on the test administered Monday. Most, in fact, receive a considerably lower grade, missing, often, twice as many questions on Monday as they missed on Friday." David Guterson, Family Matters: Why Homeschooling Makes Sense 13 (1992).

5. Arthur Beiser, Concepts of Modern Physics 112 (5th ed. 1995).

6. As prominent educational theorist Jerome Bruner states,

[t]he will to learn is an intrinsic motive, one that finds both its source and its reward in its own exercise. The will to learn becomes a "problem" only under specialized circumstances like those of a school, where a curriculum is set, students confined, and a path fixed. The problem exists not so much in learning itself, but in the fact that what the school imposes often fails to enlist the natural energies that sustain spontaneous learning-curiosity, a desire for competence, aspiration to emulate a model, and a deep-sensed commitment to the web of social reciprocity.

Jerome S. Bruner, Toward a Theory of Instruction 127 (1966).

7. As stated in a recent issue of Educational Leadership:

Clearly, home schooling offers the potential for a very different educational environment for children. As such, it could be an important resource for studying how children learn, and whether and when formal or informal learning environments are superior. To the extent that home-schoolers are willing to cooperate, they could provide an opportunity to study the effects of one-on-one lay tutoring, child-led learning, and distance learning.

Patricia Lines, "Home Schooling Comes of Age", Educational Leadership 67 (October 1996).