Do North Carolina’s Homeschooled Children Retain a Right to a Sound Basic Education?
Article Date: Thursday, November 14, 2013
Written By: Jessica A. Sammons
Courts have recognized and readily affirmed a parent’s Fourteenth Amendment right “to direct the upbringing and education of children under their control.”1 This right protects parents’ authority, at least in some circumstances, to opt out of public education and choose home schooling for their children.2
More recently, the North Carolina Supreme Court recognized a child’s right under the state constitution to a “sound basic education.”3 The State protects this right through its constitutional duty “to guard and maintain [it].”4
This article recognizes the potential tension between parents’ longstanding constitutional right to direct the upbringing and education of their children and children’s North Carolina Constitutional right to a “sound basic education.” It then considers the impact of this tension on the State’s duty to guard and maintain students’ rights when North Carolina’s parents select home schooling for their children.
Ultimately, this article suggests that although a parent may, on behalf of a child, opt out of public schools in favor of home schooling, a home-schooled child retains his state constitutional right “to a sound basic education,” and the State retains its duty to “guard and maintain” that right. In other words, parents’ exercise of the right to direct the education and upbringing of their children does not trump the children’s right to a sound basic education or the State’s duty to guard and maintain it.
The North Carolina Constitution requires the state legislature to ensure that all students, including homeschooled students, receive an opportunity for a sound basic education as defined by the North Carolina Supreme Court in Leandro v. State.5 To demonstrate this thesis, this article first offers background on North Carolina’s homeschooling legislation. It then identifies the scope of a child’s right to an education in North Carolina, demonstrating that homeschooled children, like traditionally-educated children, have a right to the opportunity to receive a sound basic education. Next it asserts that the State’s constitutional duty to “guard and maintain” children’s right to an education extends to all children, including home-schooled children, and that the homeschooled child has a constitutional claim against the State when the State fails to act on that duty. Finally, this paper proposes revisions to North Carolina’s homeschooling legislation to help ensure that the State adequately meets its constitutional obligation to “guard and maintain” every homeschooled child’s right to the opportunity to receive a sound basic education.6
North Carolina’s Homeschooling Requirements
The North Carolina General Assembly authorized parents, in a reflection of the parents’ Fourteenth Amendment right to direct the education and upbringing of their children, to home school their children under specified conditions.7 The legislative requirements for home schools are minimal.8 They include only a handful of practical, academic, and instructional obligations. Practically, a home school must register with the Department of Nonpublic Education (DNPE), elect to operate as either a “religious” or “non-religious” school, operate “on a regular schedule . . . during at least nine calendar months of the year,” maintain disease and immunization records for each enrolled child, and notify DNPE when the school ceases to operate.9 Academically, the home school must annually administer a nationally standardized test, including “the subject areas of English grammar, reading, spelling, and mathematics” to each enrolled student.10 These “test results must be retained at the home school for at least one year and made available to DNPE when requested.”11 Instructionally, the person “providing academic instruction in a home school shall hold at least a high school diploma or its equivalent.”12
North Carolina’s homeschooling statutes do not otherwise intrude on the content or manner of instruction in a home school in any meaningful way.13 In fact, the North Carolina Supreme Court acknowledged that the legislature’s purpose in enacting the State’s homeschooling statutes was “to loosen, rather than tighten, the standards for nonpublic education in North Carolina,” making it easier for children to be educated outside of public schools.14
Compliance with the state’s homeschooling law is relatively easy; it is more procedural than substantive.15 Once a home school is established, the state offers no oversight to ensure that children within the school are afforded the opportunity to receive sufficient competency in English, mathematics, physical science, geography, history, economics, political science, and vocational skills.16 Although home-schooled children take annual standardized exams in “English grammar, reading, spelling, and mathematics,” there is no consequence if the children routinely fail those exams.17 In other words, if a home-schooled child fails, year after year, on her required annual assessments, the state has no mechanism in place to intervene to ensure the child’s right to a sound basic education is otherwise being fulfilled. The state cannot, for example, re-assess the child, close the home school, or require curricular accountability in the home school, in order to “guard and maintain” the child’s state constitutional right to the opportunity to receive a sound basic education.18
The Child’s Right to a Sound Basic Education
Recognizing that the state’s homeschooling statutes authorize parents to elect home-schooling for their children even when the home school fails to produce measurable results in student achievement on nationally-normed assessments, this paper next considers whether this impacts the child’s educational rights. The North Carolina Constitution explicitly guarantees its citizens the right to an education: “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.”19 The state constitution articulates the value and importance of education to “good government” and “the happiness of mankind,” and it emphasizes that “the means of education shall forever be encouraged.”20 The Constitution requires the General Assembly to “provide by taxation and otherwise for a general and uniform system of free public schools . . . wherein equal opportunities shall be provided for all students.”21 The state now provides by taxation, and soon via state-funded “scholarships,” monetary benefits to home-schooling families who have children with disabilities,22 and the legislature has considered expansion of those benefits to all families operating home schools.23
In 1997, in Leandro v. State, the North Carolina Supreme Court held for the first time that “the right to education provided in the state constitution is a right to a sound basic education.”24 The court emphasized that “[a]n education that does not serve the purpose of preparing students to participate and compete in society in which they live and work is devoid of substance and is constitutionally inadequate.”25
The court had previously recognized that the state constitution “empower[s] the General Assembly to require that our children be educated.”26 But Leandro marked the first time the state supreme court recognized that North Carolina’s children enjoy a constitutionally-guaranteed right to an opportunity to receive a sound basic education.27 The court established that “all children”28 within the state “are entitled to the same minimum qualitative level of education, regardless of which schools the children attend.”29
In Leandro v. State, the court emphasized the qualitative standard implicit in the constitutional right to an education.30 The court determined “that Article I, Section 15 and Article IX, Section 2 of the North Carolina Constitution combine to guarantee every child of this state an opportunity to receive a sound basic education,”31 and the intent of the framers was to provide every child with “a fundamental right to a sound basic education which would prepare the child to participate fully in society as it existed in his or her lifetime.”32 The court explicitly defined a “sound basic education.” At a constitutional minimum, a “sound basic education” provides students with the opportunity to acquire:
(1) sufficient ability to read, write, and speak the English language and a sufficient knowledge of fundamental mathematics and physical science to enable the student to function in a complex and rapidly changing society; (2) sufficient fundamental knowledge of geography, history, and basic economic and political systems to enable the student to make informed choices with regard to issues that affect the student personally or affect the student’s community, state, and nation; (3) sufficient academic and vocational skills to enable the student to successfully engage in post-secondary education or vocational training; and (4) sufficient academic and vocational skills to enable the student to compete on an equal basis with others in further formal education or gainful employment in contemporary society.33
Furthermore, in King ex. rel. Harvey-Barrow v. Beaufort County Board of Education, the state supreme court concluded that long-term suspended students still maintain their Leandro right to the opportunity to a sound basic education through “alternative education when feasible and appropriate,” and “school administrators must articulate a reason when they exclude a long-term suspended student from alternative education.”34 In King, the student’s behavior had the potential to limit the student’s Leandro right—but only after the State proved it had an “important or significant reason” for doing so.35
In Leandro v. State, the court explicitly addressed public education in its declaration that the North Carolina Constitution guarantees “every child of this state an opportunity to receive a sound basic education.”36 Examining the language in Article I, Section 15 and Article IX, Section 2 of the state constitution, however, reveals that the same reasoning the Leandro court used to recognize this right in the context of a challenge brought by public school students also applies to homeschooled students within the state.37
Article I, Section 15, in providing that “[t]he people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right,” contains no qualifier regarding where the person is educated when mandating the State’s duty.38 This section dictates that all “people” within the state, not just those “people” whose parents elect to send them to public schools, have this fundamental right to an education. Thus, this section can be read to apply to homeschooled students within North Carolina, particularly to those homeschooled students whose education is funded by the state through its tax credit or soon-to-be scholarship program.39 In this manner, the right recognized in Leandro v. State can be understood to extend to all students within the state—i.e., all students have the opportunity to receive a sound basic education.40
Although all children within the state arguably enjoy the same right to the opportunity to receive a sound basic education, the State currently only protects that right for public school students.41 The North Carolina homeschooling statutes are not sufficient to ensure that all homeschooled students have the opportunity to receive a sound basic education, and thus, the State is not protecting this right for homeschooled students, despite its constitutional obligation to “guard and maintain this right” for all “people” within the state.42
The State’s Constitutional Obligation to “Guard and Maintain” the Child’s Right
Acknowledging that home-school students in North Carolina ought to enjoy the same constitutional right to the opportunity to receive a sound basic education as public school students within the state, Article I, Section 15 of the state constitution makes clear that it is the State’s “duty . . . to guard and maintain” this right equally for all students of the state.43 To accomplish this, the state’s homeschooling statutes, like state legislation overseeing the operation of traditional and charter public schools, must ensure that each child is provided with the opportunity to acquire all four required elements of a sound basic education as defined in Leandro.44
If homeschooled children are not afforded with such an opportunity, then the State has failed in its constitutional duty to ensure the children’s rights are protected. And the homeschooled children, like the public school children in Leandro, have a constitutional claim against the State for failing to “guard and maintain” their “right to the privilege of education.”45 When considering whether the homeschooled child’s constitutional right has been violated by the State, a court may consider, among other things, the “educational goals and standards adopted by the legislature” and student performance on “standard achievement tests.”46 If the court finds that the State, through the lack of oversight over the curriculum or testing in the home school, denied the homeschooled child’s right to “a sound basic education, a denial of a fundamental right will be established.”47 If the State is unable to show that this denial is “necessary to promote a compelling governmental interest,”48 then it will “be the duty of the court to enter a judgment granting declaratory relief and such other relief as needed to correct the wrong.”49 Therefore, the State will be responsible to the child for his educational deficiency.
Recommendations for the State to Ensure Its Duty is Met
Leandro v. State emphasizes that because the General Assembly has the “duty” to ensure that every child has “access to a sound basic education,” it also “has inherent power to do those things reasonably related to meeting that constitutionally prescribed duty.”50 In order to meet the State’s obligation to “guard and maintain” every homeschooled child’s right to the opportunity to receive a sound basic education and to minimize the risk of a constitutional challenge, the State ought to enact legislation establishing stricter requirements for homeschooled education. This new legislation ought to adequately ensure that every child within the state is receiving the opportunity to secure all four critical elements of the definition of a sound basic education. For example, two possible resolutions to the risk of a possible loss of a homeschooled student’s opportunity to receive a sound basic education within the state include: 1) greater curriculum oversight by the State regarding what parents or guardians teach their homeschoolers and 2) expanded testing requirements for homeschooled students, along with consequences for inadequately-performing home schools.51 Allowing State oversight over the education afforded to homeschooled students will better ensure that each child in the state, regardless of where he or she is educated, is afforded his constitutional right to opportunity to receive a sound basic education as defined by the state supreme court in Leandro v. State.52 •
Jessica Sammons is a 2013 graduate of Campbell Law currently working for United Lex and seeking opportunities in education law.
1. Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (holding that Oregon’s compulsory attendance statute unreasonably interfered with parents’ right to raise and educate their children as they wish); Meyer v. Nebraska, 262 U.S. 390 (1923); Farrington v. Tokushige, 273 U.S. 284 (1927); Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944); Wisconsin v. Yoder, 406 U.S. 205 (1972).
2. Pierce, 268 U.S. at 534-35. See also Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that Wisconsin’s compulsory school attendance law unconstitutionally interfered with the right of Amish parents to direct the religious upbringing of their children).
3. Leandro v. State, 346 N.C. 336, 347 (1997).
4. N.C. CONST. art.I, § 15.
5. Leandro, 346 N.C. at 347; N.C. CONST. art.I, § 15.
6. N.C. CONST. art.I, § 15.
7. N.C.G.S. §§ 115C-547 – 115C-566.
8. See Id.
9. Home School Requirements, Reminders, and Recommendations, North Carolina Dep’t of Admin., http://www.ncdnpe.org/hhh103.aspx (last visited Oct. 2, 2013); N.C.G.S. §§ 115C-556, 560.
10. Home School Requirements, Reminders, and Recommendations, supra note 9; N.C.G.S. § 115C-564.
12. N.C.G.S. § 115C-564.
13. Delconte v. State, 313 N.C. 384, 399 (1985) (holding that home instruction is not prohibited as a means of complying with compulsory attendance requirements). Article 39 of Chapter 115C contains laws which “eliminate the requirement that teachers or curricula at [homeschools] be approved by any state or county official; but they require these schools to comply with certain attendance, health and safety standards, to administer certain tests, and to provide certain information to an authorized state representative.” Id. However, these requirements do not dictate what a parent must teach the child or how the information is presented to the child.
14. Id. at 400 (“It would be anomalous to hold that these recent statutes were designed to prohibit home instruction when the legislature obviously intended them to make it easier, not harder, for children to be educated in nonpublic school settings.”).
15. Id.; N.C.G.S. § 115C-564.
16. See N.C.G.S. §§ 115C-547 – 115C-566.
17. Home School Requirements, Reminders, and Recommendations, North Carolina Dep’t of Admin., http://www.ncdnpe.org/hhh103.aspx (last visited Oct. 2, 2013).
18. N.C. CONST. art. I, § 15.
20. N.C. CONST. art. IX, § 1 (“Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged.”).
21. N.C. CONST. art. IX, § 2(1). State taxes also support homeschooling as well. See infra note
22. Effective for the 2012-2013 school year, parents of children with disabilities can “claim a tax credit of up to $6,000 for educational expenses that include private school tuition, therapy and tutoring.” What is the tax credit for children with disabilities all about?, Parents for Educational Freedom in North Carolina (Mar. 15, 2012), http://pefnc.org/2012/what-is-the-tax-credit-for-children-with-disabilities-all-about/. This legislation “creates an individual income tax credit for part of the expense of each eligible child who is educated in a home school, private school or in a public school that charges tuition.” Id. Furthermore, beginning in the 2014-2015 school year, under the Opportunity Scholarship Act, the State will provide scholarships of $4,200 per school year to an estimated 2,5000 students from low-income families. This new program is designed to “provide low-income families a greater array of options so that their children will be able to attend a school that fits their unique educational needs.” July 22, 2013: N.C. General Assembly, Parents for Educational Freedom in North Carolina (July 22, 2013), http://pefnc.org/2013/july-22-2013-nc-general-assembly/.
23. There is a proposed bill in the 2013 session of the General Assembly of North Carolina that would create an income tax credit for all children who are homeschooled. Under this proposed bill, a taxpayer would be allowed a $1,250 tax credit per semester for each child “who is a resident of this State and who, for one or two semesters during the taxable year, is enrolled in a home school that meets the requirements of G.S. 115C-564.” Homeschool Education Income Tax Credit, H.R. 144, 2013-2014 Sess., N.C. (2013).
24. Leandro v. State, 346 N.C. 336, 345 (1997).
26. Delconte v. State, 313 N.C. 384, 400-01 (1985).
27. Leandro, 346 N.C. at 345; William Kent Packard, A Sound, Basic Education: North Carolina Adopts an Adequacy Standard in Leandro v. State, 76 N.C. L. REV. 1481, 1483 (1998).
28. Hoke County Bd. of Educ. v. State, 358 N.C. 605, 620 (2004) (acknowledging that it “read[s] Leandro and our state Constitution . . . as according the right at issue to all children of North Carolina.”).
29. Packard, supra note 27, at 1482; Leandro, 346 N.C. at 350-51.
30. Leandro, 346 N.C. at 346.
31. Id. at 347.
32. Id. at 348.
33. Id. at 347.
34. 364 N.C. 368, 372 (2010).
35. Id. at 377.
36. Leandro, 336 N.C. at 347.
37. Especially now that the State provides benefits through taxation and state-funded “opportunity scholarships” for homeschools. See supra note 22.
38. N.C. CONST. art.I, § 15.
39. Id. Also, some homeschools are now state-supported schools since the state provides tax benefits to some homeschools. See supra note 22.
40. Leandro, 346 N.C. at 347.
41. See, e.g., N.C.G.S. § 115C-105.37A (defining what constitutes a low-performing public school, and detailing assistance to schools that are low performing for two years and intervention in schools that low performing for three or more years); N.C.G.S. § 115C-238.29G (detailing what constitutes inadequate performance for charter schools and the action to be taken by the State Board of Education for such inadequately-performing charter schools, including terminating or not renewing the charter).
42. N.C. CONST. art. I, § 15.
44. Leandro, 346 N.C. 336.
45. N.C. CONST. art. I, § 15; Leandro, 346 N.C. at 357 (If the “court makes findings and conclusions from competent evidence to the effect that [the State has denied] children of the state a sound basic education, a denial of a fundamental right will have been established.”); King v. Beaufort Cnty. Bd. of Educ., 364 N.C. 368, 374 (2010) (“Leandro placed the burden on the state ‘to establish that [its] actions denying this fundamental right [were] necessary to promote a compelling governmental interest.’” (quoting Leandro, 346 N.C. at 357)).
46. Leandro, 346 N.C. at 355.
47. Id. at 357.
48. Id. (quoting Town of Beech Mountain v. Cnty. of Watauga, 324 N.C. 409, 412, cert. denied, 493 U.S. 954 (1989)).
49. Leandro, 346 N.C. at 357.
50. Id. at 353.
51. These are two possible resolutions; other options may exist, such as requiring homeschooled students to take certain classes in public schools, providing homeschooled students with partial access to public education, or closing non-performing home-schools in a similar manner as how non-performing charter schools are closed. This paper merely serves to point out that it is time to begin a conversation about the constitutional demand for these options since the State has a constitutional duty to ensure that homeschooled students have the opportunity to receive a sound basic education.
52. Id. at 347.
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