Role of the DOE in Home Education: DOE is not involved in setting policy

Approval and oversight of home education is a local, rather than a state function in Massachusetts. Therefore, the Department of Education (DOE) is not involved in setting policy, overseeing school district practices, or otherwise enforcing the Commonwealth's home education law. When asked, the Department attempts to provide school officials and parents with information and answers to questions about the legal requirement for home education. Over the years, the Department has prepared Advisories to assist them in fulfilling that limited role. (see p. 13 of the DOE August 2000 Draft Advisory.)

In this section:

• View the August 2000 DOE Draft Advisory online or download the Advisory (13 pages) in .pdf format (Requires Adobe Acrobat Reader)
• Problems with Current DOE Draft Advisory
• Chronology of DOE Advisories since 1980
• Download the Homeschoolers Annotated Advisory, a response to the DOE -- 23 pages in .pdf format (Requires Adobe Acrobat Reader)
• MHLA position on current Draft Advisory

Problems with Current DOE Draft Advisory and Homeschoolers Response

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.

Thus it is of utmost importance that homeschoolers throughout the Commonwealth know

1) what advice their superintendents may be receiving from the DOE, for better and for worse

2) why Massachusetts homeschool organizations take exception to some parts of the Advisory

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.

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Chronology of DOE Advisories on Home Education

1980

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."

1987

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.

1988

The Department issued an Advisory Opinion on Home Education.

1996

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:

The advisory attempts to interpret Charles, which itself is the result of an adversarial situation. Translating an adversarial tone to a collaborative one is a difficult task... Since Charles was written, collaboration between homeschoolers and their schools is more common. In order for the advisory to be useful to all stakeholders, this potential for cooperation should be clear to even the most casual reader.

After homeschool organizations, attorneys, and practitioners offered substantial and substantive feedback on the August 1996 draft, the draft was tabled.

1999

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:

I am deeply concerned that the advisory you are planning to issue to Superintendents is still almost identical to the one tabled three years ago.

Again, homeschool organizations offered substantial and substantive feedback, and received no official response from the Department.

2000

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.

2001

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.

2002

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.

2003

As of April, 2003, the Department is still severely understaffed and facing immense litigation challenges. The Home Education Advisory has not yet been rewritten.

2004

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.

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MHLA Position on DOE 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:

What gets into the final Advisory will affect homeschoolers, School Committees and administrators for years to come. The last thing any of us wants is a document that causes more problems than it solves.

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.

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