by Elaine Rapp (Chair of the Home Education Advisory Council, 1990 – 2006)
Compulsory attendance statutes were in existence in New Hampshire early in the 20th century, although the required years and number of weeks of attendance were very limited compared to today’s standards. Over the years, New Hampshire court cases upheld compulsory attendance, including the stipulation that vaccination could be required (1937 State v. Drew 89 NH 54). A requirement of compulsory attendance, however, did not impair the “inherent parental right of defence” in withdrawing a child from school “believing in good faith that her attendance at and confinement in school would seriously injure her reason and health…” (1902 State v. Jackson 71 NH 552)
In 1912, Fogg v. Board of Education 76 NH 296 clearly defined the state interest as follows: “The primary purpose of the maintenance of the common-school system is the promotion of the general intelligence of the people constituting the body politic and thereby to increase the usefulness and efficiency of the citizens, upon which the government of society depends. Free schooling furnished by the state is not so much a right granted to pupils as a duty imposed upon them for the public good. If they do not voluntarily attend the schools provided for them, they may be compelled to do so.” Thus, the reasoning for compulsory attendance was not because education was a constitutional right, but because citizens had a duty to the state to attend schools provided for them to promote the common good of the state.
In 1929, State v. Hoyt 84 NH 38 ruled in part that “equivalent supervised instruction” by a private tutor was not sufficient to meet the compulsory attendance requirement without approval of the local school board. The court also held that requiring compulsory attendance to be met in an approved private school as an alternative to public school was within the state’s power. An annotation to Hoyt still appears under the current New Hampshire compulsory attendance law. This ruling on equivalent supervised instruction was upheld in 1974 In Re Davis 114 NH 242.
Roots of Home Education
In the 1970s home education had its roots with such notables as John Holt, publisher of Growing Without Schooling and Dr. Raymond Moore of Washington, author of Better Late Than Early. At first attracting mainly persons living alternative lifestyles, the movement soon attracted an eclectic following which has resulted in the diversity and richness of the homeschooling movement. In New Hampshire, Bob and Nancy Wallace (author of Better Than School were among this early number; in fact, Bob Wallace was a member of the group assembled in 1979 to develop rules for home education in New Hampshire. In particular, during the later 1980s, many Christian families became interested in pursuing a home-centered education for their children.
In 1980 there were probably fewer than 30 homeschoolers in New Hampshire; in 1984 Charles Marston, in a meeting with myself and other homeschoolers, estimated the number at 90-100. In 1985-1986 the first documented statistics by the Department of Education showed 160 students. The number rose to 711 by the end of the 1989-1990 school year. These numbers most likely underreported the actual number of homeschoolers as not all districts were reporting at the time and underground students (those who did not notify anyone that they were homeschooling) were not counted.
Elsewhere in the United States, the home education movement was growing as well, and in some states, parents were being denied the right to educate their children at home. There were even cases where children were taken away from parents, and parents put in jail. Although this was not a problem of which most early homeschoolers were aware of in this state, there was always the concern that this could happen here.
At that time in New Hampshire, homeschoolers went before their local boards under RSA 193:3 requesting approval for a home program which had to meet the manifest educational hardship requirement. RSA 193:3 reads in part: “Change of School or Assignment; Excusing Attendance. Any person having custody of a child may apply to the school board for relief if he thinks the attendance of the child at the school to which such child has been assigned will result in a manifest educational hardship to the child. If the person having custody of the child is aggrieved by the decision of the school board, he may appeal to the state board of education…”
The first New Hampshire court challenge to home education of which I was aware was the case of Mrs. Betsy Tompkins v. the Nelson School Board in 1979. Her local board had denied her program based on a lack of showing a manifest educational hardship. The case was appealed to the state board, and also went to the Cheshire County Superior Court, involving the New Hampshire Civil Liberties Union and the state attorney general’s office. I do not know how the case was eventually resolved.
Another case at about the same time involved Dan and Kendall Dustin of Hopkinton, who also had their program rejected because of an insufficient showing of manifest educational hardship. This was appealed to the state board as well. I do not know the outcome of that appeal. It was becoming apparent that because there were no guidelines for districts regarding approval of home programs and requirements for meeting manifest educational hardship, problems were growing.
Home Education Rules and Regulations 1980
Charles Marston was then an Assistant Chief in the Division of Instruction for the State Department of Education and exhibited an interest in finding a way to resolve these problems. In 1979, the department formed a Home Study Committee, which consisted of state education officials; representatives of the New Hampshire School Principals Association, the New Hampshire Education Association, and the New Hampshire Civil Liberties Union; private educators, school superintendents, home educator parents, and an assistant state attorney general.
Developed under this group, the original Regulations and Procedures Pertaining to Home Education Programs in New Hampshire June 1980 was adopted by the state board of education for a two-year trial period. Statutory references were RSA 193:3, compulsory attendance, and RSA 54 1 -A, rule-making authority. The rules did not apply to handicapped students, and school boards were advised to consult counsel when an applicant was unwilling to comply with the regulations for religious reasons as claimed under Yoder v. Wisconsin. Under the rules, manifest educational hardship, instead of necessitating a showing of harm, could be shown by defining a benefit; i.e. to deny such benefit would then result in a hardship.
In 1982, Mr. Marston undertook a review of the regulations and every known home schooler was invited to fill in a questionnaire regarding their experience. In a letter to me dated February 2, 1982, he stated: “We will be completing a summary of New Hampshire’s experience with the two-year trial period at the end of this current school year. Our experience to date indicates that approximately 50 requests have been made of local school authorities of which a great majority have been approved. Based on incomplete data that was collected last year, only six applications had been denied by local school officials. One of the six was appealed by the parent to the State Board of Education. The State Board upheld the denial decision of the local school board and the parents subsequently appealed to the New Hampshire Supreme Court …”
This case was the 1982 Appeal of Denise Pierce and Christopher Rice (New Hampshire Board of Education) 122 NH 762 which reviewed the procedure, the language of the regulations, and the responsibilities of the parties involved pertaining to due process under the regulations. The case was sent back to the school district basically for violation of due process procedures. The court did not rule on the legality of home education, but did uphold the rules process. The concurring opinion in this case offers some interesting opinions on education and the home teaching tradition which has been part of our history.
A second set of regulations very similar to the 1980 version was adopted and used until the enactment of RSA 193-A in 1990.
Cooperation Among Homeschoolers
During the 1980s, homeschoolers, in New Hampshire were starting to make contact with one another. The first contact I recall was from Kathie Dupont in Belmont who had started a newsletter for New Hampshire homeschoolers with Barbara Parshley. We got together during the rules revision of 1982-3, and with others started making contact with the state Department of Education through Charlie Marston. Slowly, a working relationship was established between homeschoolers and the department, which was the beginning of an organized effort on the part of New Hampshire homeschoolers to establish home education as a legal, credible, successful alternative to school attendance.
In 1983, the New Hampshire Home Educators Association (NHHEA) was formed, whose primary function was to facilitate communication between home educators in the state, improve relations between home educating parents and school personnel, and offer information, support, and networking to anyone interested in home education. This was the first statewide organization to meet these needs. The newsletter was expanded and an information packet developed for New Hampshire homeschoolers. In 1985 a survey of homeschoolers was taken to determine their concerns and wishes for creating the best home education environment in the state. Workshops and picnics were sponsored and packets of information about home schooling were sent to state board of education members, legislators, and state educators’ associations to reinforce home education as an established alternative to school attendance.
During the 1980s, other homeschooling groups, both local and statewide, were organizing. The Christian Home Educators of New Hampshire (CHENH) and the Catholics United for Home Education (CUHE) were founded. Many local groups increased their numbers greatly during this time. In 1989 a new statewide organization was organized, the New Hampshire Homeschooling Coalition (NHHC), replacing the NHHEA. No one group ever attempted to speak for all homeschoolers, as it was universally accepted that only individual homeschoolers could really speak for themselves. However, these organizations did help to coordinate the activities of many local groups and unite homeschoolers of different philosophies on issues of mutual concern. Recognizing that homeschoolers come from diverse philosophies, the New Hampshire Alliance for Home Education was also founded which promoted a different political agenda on some issues than many of the other homeschooling groups supported.
Rules Revision of 1988
During the late 1980s, the number of home educated students grew quickly, and inequitable application of the regulations led to misinformation and misunderstandings regarding the procedures and legalities of the regulations. Both parents and school administrators were encountering problems regarding uniform interpretation of the regulations.
In 1988 a court challenge to the rules process by a family in Litchfield, who refused to comply with the rules citing a religious exemption, prompted Litchfield school board member (and state representative) Ellen Ann Robinson to request that the Department of Education review the regulations. A new Home Education Rules Revision Committee under the State Board of Education was formed. The members were: Roberta Barrett, State Board of Education; Jon Meyer, Non-Public School Advisory Council (and also member of the original rules group in 1979); Ellen Ann Robinson, School Boards Association; Joseph Guiliano, School Administrators Association; Michael Delahanty, Principal’s Association; Judith Fillion, Al Rich, Pat Busselle, Charles Marston, Department of Education; Scott Somerville (CHENH) and myself (NHHEA), homeschoolers.
It quickly became apparent that the educators were interested in increasing homeschooling requirements, especially in the areas of evaluation and parental qualifications; department officials wanted to retain the flavor of the rules but have a more uniform application process. The homeschoolers were hoping to have equal application of the rules as well, but also less interference in the establishment and content of home education programs. As Judy Fillion described at one point, the work was “tortuous.” No consensus could be reached.
There was tremendous concern among homeschoolers that the proposals would effectively remove freedom from the home education alternative. The extent of those proposals represented the overwhelming challenge presented in trying to limit state control of home programs. Some of the proposals included: defining the conditions under which home education would be approved, i.e. educational benefit, health, and religious conviction; requiring the parent to have a high school diploma; providing records showing all schools the child had attended; including a “description of proposed interaction with peers and adults…” in the child’s educational plan; mandating expanded curriculum; and requiring three forms of evaluation, one of which was to be a standardized test and the others a combination of such things as portfolio review and home visits.
While the department officially recommended the rules for consideration by the state board, both homeschoolers wrote and presented detailed oral arguments against the proposed rules, stating that the rules would be “unworkable” and homeschoolers would not “comply.” The work of the committee ended with no action taken by the State Board of Education.
In 1990, Senate Bill 373 relative to home education and making an appropriation therefor was introduced by Senator George Disnard and co-sponored by Representative Ellen Ann Robinson. For many years, homeschoolers had debated the question of whether or not to attempt to create a model home education law for New Hampshire. They had resisted partly due to the fact that people in New Hampshire were almost never denied home education approval, although at times homeschoolers accepted requirements which they believed were unnecessary and overly restrictive. They also knew the tremendous commitment and effort it would take to pass a law which would meet their diverse needs and satisfy the state’s presumed interest. Most importantly, however, no law could be drafted which would reflect the needs and concerns of all homeschoolers, which meant that significant compromise and unity would be necessary in order to pass a law that would provide flexibility and protection while recognizing that it would also limit.
However, homeschoolers now were faced with a hostile legislative initiative. After much communication between homeschooling organizations and the contacting of as many individuals as was possible, a decision was made by representatives of the many homeschooling groups who chose to participate in the process including NHHEA, CUHE, and CHENH and other interested homeschoolers to move forward with the state in trying to create a home education law. Senator Disnard organized a committee to work on an amendment which completely changed the original bill and became the working bill which eventually became law.
One of the most difficult challenges was that there already were rules and proposed rules that, unchecked, would greatly limit home education options; so instead of starting with a clean slate, in effect, it was a battle to chip away at established education positions and try to keep the most options open for the most homeschoolers. During this process, the progress of the bill was reviewed periodically through written and oral communication between homeschoolers and at various posted meetings, all suggestions and concerns were discussed and carefully considered by those homeschoolers who actually helped in writing the bill. There was debate as to whether or not to continue; but as time went on, it seemed inevitable that there would be legislation, and the general consensus among homeschoolers who followed and participated in the process was that it was far better to have some involvement than to allow others to make too many decisions for homeschoolers.
The law of 1990 was a great compromise for homeschoolers. First, because it recognized that the state had an interest in education and that that interest was manifested by its right to require compulsory attendance or a legal alternative. Second, no law could satisfy all homeschoolers. The primary focus for homeschoolers had been on minimizing requirements, particularly in the areas of evaluation and parental qualifications. However the rules revision process a year earlier had made it clear that many educators had an agenda which emphasized more state control over approval, home visits, parental qualifications, curriculum content, and evaluation. It was not easy to try to balance these very different interests.
In many respects the law has performed well, offering both protection to homeschoolers and a “safety net” for educators. Some dissatisfaction with the law has come from local administrators citing their lack of “control” over home education programs, as well as from some homeschoolers who have promoted a different political solution to establishing home education as a legal alternative to compulsory attendance. Certainly the recent New Hampshire Supreme Court rulings Claremont I & II establishing the constitutional right to a public education funded by the state could have an immense impact on home education and a future understanding of the rights and responsibilities of both parents and educators. Perhaps the time will come for a different law, perhaps even including a different interpretation of the state’s interest and the rights of parents. What happens will depend on individual homeschoolers themselves, who must direct their own future by communicating and working together on similar goals which will preserve their right to the home education alternative.