The Arguments in the Jones
Case – Randal Minor, Esq.
case rests on the principle that every child in West Virginia, whether in public
school, private school, parochial school, or homeschooled, should have access to
the richest possible menu of educational
and developmental experiences. It raises a combination of state and
state claims relate to various statutory and regulatory duties defendants have,
including their duty to provide every child with equal educational
opportunities, their duty to implement extracurricular activities in an
equitable manner, their duty to provide available assistance to homeschooling
families, and the SSAC's duty to promulgate reasonable rules and regulations
governing athletic activities.
Our constitutional claims rest on three fundamental rights: the right of every child in the state to a thorough and efficient education, the right of parents to direct their children's educations, and the right to free expression of religion--to the extent a family’s decision to homeschool is based on religious convictions. Given these fundamental rights, a homeschooled child should not be treated differently without a compelling reason and a showing that the state policy represents the least restrictive means for achieving that interest. In addition, we have a claim that the defendants cannot punish a homeschooling family for exercising a fundamental right or otherwise coerce a family to give up a fundamental right.
offered the following arguments:
We argued, and the Court seemed to agree,
that these cases could be handled individually and such attempts could be easily
identified and handled accordingly. We also pointed out that homeschooling
children who meet all state standards should be presumed to be doing passing
work since that is all that is required for a child to go on to the next grade.
There are no legitimate concerns about school spirit since under current SSAC
policies a child from a school without a team can participate on a team at
another school in the same region. With regard to misbehaving homeschoolers, we
pointed out that they could be kicked off a team or otherwise disciplined just
as any other student would be. Homeschoolers aren't asking for special
treatment; they just want the same opportunity that other children in the state
have to participate. The Court also noted that he assumed parents would
discipline their children if they behaved inappropriately.
That seems unlikely since probably 75% or more of WV homeschoolers are in grades 1-5. [The experiences in states that do not discriminate against homeschoolers indicate that a small minority of homeschoolers participates in interscholastic sports.—Editor] 3. Homeschooled children might not be covered under the state liability coverage.
I said I suspect the Board of Risk and Insurance Management would cover all participants in the activity, which is what happens with respect to participants, including pro bono attorneys, in law school service activities. Regardless, the judge was unwilling to give that concern much weight without some proof that the Board had expressed a clear intent not to cover homeschooled children participating in interscholastic athletic events.
4. Schools don't receive money for homeschooled students to participate on sports teams.
The judge pointed out that home-schooled families pay taxes, and the state is getting their money without having to spend much, if anything, on a homeschooled child.
Defendants’ policy ignores the fact that homeschooled children, while educated outside the normal school setting, still are a part of the state education system. Pursuant to Exemption B, families must file a notice of intent to home-school, a plan of instruction, and results of an annual academic assessment with their county superintendent (WV Code § 18-8-1, Exemption B(b)). The superintendent has the authority to seek an order from the circuit court denying home instruction upon a showing of educational neglect or other compelling reason to deny home instruction. The superintendent has an obligation to provide home-schooling families with such available assistance, including textbooks, other teaching materials and available resources, as may assist the family in providing home instruction to their child.
Finally, the State Board of Education
charges county boards with developing partnerships with homeschooling families (WVCSR
§ 126-42-9). Given the level of involvement the county board and superintendent
have with homeschooling families, plaintiffs believe their son should be
considered a student of the county school system and in compliance with the
enrollment rule. Such a conclusion would be consistent with WVCSR §
126-42-9.3.4, which provides that home/hospital instruction for students who are
unable to attend school for a period of time is considered an extension of the
regular school program of study.