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Slip Opinion subject to formal revision. Will
be superseded by the advance sheets and bound volumes of the Official
Reports. .
SJC-07709
MICHAEL BRUNELLE & others vs.
LYNN PUBLIC SCHOOLS.
Essex. November 5, 1998.
- December 16, 1998.
Present: Wilkins, C.J., Abrams, Lynch, Greaney,
Fried, Marshall, & Ireland, JJ.
School and School Committee, Superintendent of schools.
Education, Home education. Parent and Child, Education.
Civil action commenced in the Superior Court Department
on June 6, 1995.
The case was heard by Richard E. Welch III, J., on motions
for summary judgment.
The Supreme Judicial Court granted an application for
direct appellate review.
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Michael P. Farris of the District of Columbia (Scott
Sommerville, of Virginia, & Robert G. Caprera with him) for the plaintiffs.
John C. Mihos for the defendants.
Nancy N. Hardenbergh, amicus curiae, submitted a brief.
GREANEY, J. We granted the plaintiffs' application
for direct appellate review in this case to consider the validity of a
requirement of the school committee of Lynn that conditioned approval
of the plaintiffs' home education plans on home visits by the superintendent
or his representative to "observe and evaluate the [home] instructional
process." A judge in the Superior Court considered cross motions
for summary judgment, Mass. R. Civ. P. 56 (a) and (b), 365 Mass. 824 (1974),
and granted the defendant's motion after deciding that the home visit
requirement was valid. We conclude that the requirement is not essential
to approval of the plaintiffs' home education plans. Accordingly,
we vacate the judgment and order a declaration of the parties' rights
reflecting our conclusion.
The material facts are not in dispute and may be summarized
as follows. The plaintiffs, Michael and Virginia Brunelle, are married
and are the parents of five school-aged children. The Brunelles
moved to Lynn in 1993, and gave notice to school officials that they intended
to educate their children at home. Mrs. Brunelle is certified to
teach elementary education and Mr. Brunelle has a master's degree in Christian
education.
The plaintiffs, Stephen and Lois J. Pustell, are married
and are the parents of three school-aged children. The Pustells,
residents of Lynn, notified school officials in 1991 that they intended
to educate one of their daughters at home. Mrs. Pustell is certified
to teach elementary education, and Mr. Pustell is certified to teach mathematics
at the secondary school level.
In both the cases of the Brunelles and the Pustells,
the school committee and other school officials have examined their home
education proposals and are satisfied with the qualifications of the parents
as teachers, the contents of the curricula and instructional materials
to be used, the amount of time to be devoted to instruction, and the student
evaluation plans. In addition to obtaining prior approval of these
matters, the school committee also requires that parents who wish to educate
their children at home "allow the Superintendent (or designee, i.e., the
Principal) to periodically . . . observe and evaluate the instructional
process and to verify that the Home Instruction Plan is being implemented
as authorized by the Committee." The plaintiffs refused to consent
to these observations and evaluations in their homes. They instituted
this action asserting that the requirement violates G. L. c. 76, §
1, and certain provisions of the Massachusetts Constitution. The
plaintiffs sought a declaration that the school committee's policy to
require home visits violates their rights under Massachusetts law, and
injunctive relief enforcing the declaration.
General Laws c. 76, § 1, requires compulsory attendance
in a public day school or some other approved day school by children within
specified ages, but provides that "such attendance shall not be required
. . . of a child who is being otherwise instructed in a manner approved
in advance by the superintendent or the school committee." The statutory
exemption authorizes approved home education for children, and, in so
doing, protects the basic constitutional right of parents to direct the
education of their children. See Care & Protection of Charles,
399 Mass. 324, 334 (1987), and cases cited. See also Curtis v. School
Comm. of Falmouth, 420 Mass. 749, 754 (1995), cert. denied, 516 U.S. 1067
(1996). This right is subject to the State's interest in seeing
that children in home education programs receive an education. See
Care & Protection of Charles, supra at 336.
We said in Care & Protection of Charles that "the
approval of a home school proposal must not be conditioned on requirements
that are not essential to the State interest in ensuring that 'all the
children shall be educated,'" id. at 337, and that school officials "may
enforce, through the approval process under G. L. c. 76, § 1, certain
reasonable educational requirements similar to those required for public
and private schools" (emphasis added). Id. at 336. We went
on to suggest guidelines for approval of home education plans. We
indicated that school officials could, among other matters, insist that
required courses, as enumerated in G. L. c. 71, § 1, be taught, as
well as any other subjects considered "expedient"; examine the competency
of the teachers (usually parents); consider the length of the school year
and the hours of instruction in each subject; insist that parents furnish
school officials with access to textbooks, workbooks, and other instructional
aids, as well as to lesson plans and teaching manuals; and employ periodic
standardized testing or other means of evaluating the children's progress.
See id. at 337-340. As to the need for home visits, we said the
following: "With appropriate testing procedures or progress reports,
there may be no need for periodic on-site visits or observations of the
[home] learning environment by school authority personnel. But see
Matter of Kilroy, [121 Misc. 2d 98, 102 (N.Y. Fam. Ct. 1983)] (upholding
requirement of on-site visits)." Id. at 340. This passage
left unresolved whether home visits could be required in this type of
case.
We agree with the plaintiffs that, with respect to the
approval of home education plans for children to be taught by parents
that satisfy other pertinent criteria, including those summarized above,
a home visit is not presumptively essential to protection of the State's
interest in seeing that children receive an education, and therefore,
such visits may not be required as a condition to approval of the plaintiffs'
plans. As would be expected, all fifty States allow for home education
of children as an alternative to their attendance at a public or other
day school. Thirty-four States (and the District of Columbia) have
statutes or regulations that specifically acknowledge home education as
a distinct category of private education. The remaining sixteen
States either include home schooling under a statute designed for church
and private schools, or, as is the case in Massachusetts, permit
home education under their more general statutory schemes governing public
education. W.M. Gordon, Home Schooling 29 (1994).
An examination of the statutes and regulations throughout
the country discloses that the States have concluded that their interests
can be satisfied if the home education plan under examination complies
with a list of requirements which are similar to those described in Care
& Protection of Charles, supra, including periodic assessment of the
child's progress by means of standardized testing or other alternatives
that measure aptitude and learning. Only one State law that we can
find requires home schoolers to submit to home visits by school officials,
as a condition to approval of home education plans. That law is
designed to regulate private, denominational, and parochial schools, and
approval is based in part on "health and safety factors in buildings and
grounds." Neb. Rev. Stat. §§ 79-1601(2), 79-1605 (1996).
Ohio's guidelines prohibit school officials from conducting home visitations,
Rhode Island does not allow school officials to require home visits as
a precondition of home education plan approval, and North Carolina and
New York have eliminated home visitations as conditions of approval.
See W.M. Gordon, Home Schooling, supra at 34-35 & n.122; Kindstedt
vs. East Greenwich School Comm, R.I. Comm'r of Educ. (Aug. 7, 1986); N.C.
Gen. Stat. § 115C-564 (Michie 1997); N.Y. Comp. Codes R. & Regs.
tit. 8, § 100.10(i)(3) (1995). In 1988, the New York State
board of regents promulgated new regulations governing home instruction.
These regulations eliminated home visits as a matter of course, a practice
permitted by a lower New York court decision in Matter of Kilroy, supra,
instead "authoriz[ing] such visits only after a family's home-schooling
program has been placed on probation and the local superintendent has
'reasonable grounds' to believe that the program is not in compliance
with state requirements." Blackwelder v. Safnauer, 866 F.2d 548,
551-552 (2d Cir. 1989).
General Laws c. 76, § 1, does not explicitly, or
by implication, contain a requirement for home visits, but gives local
school officials discretion to develop home school approval guidelines.
We cannot say whether home visits are commonly required by local school
officials, but view such a requirement carefully in light of constitutional
considerations.
The school committee's requirement of home visits is
explained in the "Home Instruction--Regulations" as being necessary to
"allow the Superintendent (or designee, i.e., the Principal) to periodically
. . . observe and evaluate the instructional process and to verify that
the Home Instruction Plan is being implemented as authorized by the Committee."
The home visit policy was justified by the superintendent of schools in
his deposition testimony in the following manner:
I believe when we adopted the policy I recommended to the School
Committee that it was essential that we visit the homes to make sure that
the plan is being implemented, that there is an instructional space available,
that there are materials present, that there was a schedule that is followed,
and my understanding when I recommended it was that we were really concerned
about the process and outcomes, not just the outcomes, but the process,
too."
These reasons have to be measured against the nature
of the home education involved in the plaintiffs' case (namely, parents
teaching their children in their own home) which in certain important
ways can never be the equivalent of in-school education. For example,
at home, there are no other students (except perhaps siblings), no classrooms,
and no rigid schedules. Parents who teach
at home stand in a very different relationship to their children than
do teachers to a class full of other peoples' children. Teaching
methods may be less formalized, but in the home setting may be more effective
than those used in the classroom because the teacher-to-student ratio
is maximized, a factor permitting close communication and monitoring on
an individualized basis. It
is obvious from these differences that, while the State can insist that
the child's education be moved along in a way which can be objectively
measured, it cannot apply institutional standards to this non-institutionalized
setting. Furthermore, a requirement of home visits may call into
play issues of family privacy in seeking to keep the home free of unwarranted
intrusion.
We are not persuaded that the reasons given by the superintendent,
although articulated by him in good faith, are sufficient to justify home
visits as an essential condition to the home education plans in question.
While following a schedule may be an important
consideration in a public school where preexisting schedules need to be
maintained and coordinated, the perception and use of time in a home school
are different. The plaintiffs can observe and accommodate variations
(from child to child, subject to subject, day to day) in the learning
process and teach through a process that paces each student. The
results of their teaching programs can be adequately verified through
testing without the need to visit the home to see if a formal schedule
is being followed. Additionally, the school committee, if desired,
can ask the plaintiffs to submit periodic reports on the progress of each
child's education in order to indicate what subjects, areas, and materials
have been learned and what is planned for the next reporting period.
Similarly, it is not essential to visit the plaintiffs'
homes to see if "there are materials present." The plaintiffs can
be asked to identify the teaching materials that will be used, and even
to show them, if appropriate, to school officials. It
should not be overlooked in this regard, that some of the most effective
curricular materials that the plaintiffs may use may not be tangible.
For example, travel, community service, visits to educationally enriching
facilities and places, and meeting with various resource people, can provide
important learning experiences apart from the four corners of a text or
workbook.
We also do not consider essential the perceived need
to verify that "there is an instructional space available" in the plaintiffs'
homes. The entire home is apparently in each case available to the
plaintiffs' children, and whether their educational plans are appropriate
should not depend on the size of their kitchen tables or their students'
desks. We doubt that parents like the plaintiffs, who are so committed
to home education that they are willing to forgo the public schools, and
devote substantial time and energy to teaching their children, will let
the children's progress suffer for lack of adequate instructional space.
Both the United States Supreme Court and this court have
emphasized, in connection with the protected right of parents to raise
their children, that "government may not intrude
unnecessarily on familial privacy." Curtis v. School Comm. of Falmouth,
supra at 756 & n.8, and cases cited. This
concern (as well as others) dictates, as we said in the Curtis case, that
home education proposals can be made subject only to essential and reasonable
requirements. The home visits sought to be imposed on the education
proposals of the plaintiffs are not essential. We express no opinion
on whether home visits can be required (as appears to be the case in New
York during any period of probation) if a child is not making satisfactory
progress under a home education plan, if a home is used to educate children
from other families, or if other circumstances make such a requirement
essential, and reasonable standards are formulated to enforce the requirement.
Because our decision rests on G. L. c. 76, § 1,
as interpreted in Care & Protection of Charles, supra, there is no
need to consider the several arguments made by the plaintiffs under the
Massachusetts Constitution. We also need not address their argument
that the requirement is a disguised effort to perform unwarranted teacher
evaluations. The judgment is vacated. A new judgment is to
be entered declaring that the school
committee of Lynn and other school officials cannot, in the absence of
consent, require home visits, as a condition to the approval of the plaintiffs'
home education plans, and that, if those plans continue to comply with
the standards for home education, they are to be approved.
So ordered.
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