States have a compelling interest in ensuring that all children receive an adequate education. Education prepares children to support themselves as adults and to participate in the political process.2 In order to ensure that all children receive an adequate education, each state has com-pulsory school attendance laws. The Supreme Court has held that states have the power "to compel attendance at some school and to make reasonable regulations for all schools."3 However, parents have the right to direct the upbringing of their children and make decisions regarding their children’s edu-cation,4 so states cannot require that children receive their edu-cation only from a public school.5 Each state recognizes the right of parents to homeschool their children, but they have taken different approaches in recognizing this right.
Illinois’Compulsory Attendance Law. Illinois’ com-pulsory attendance law requires that children between the ages of 7 and 17 years attend public school for the entire time that the school is in session.6 There is an exception for children who are "attending a private or a parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of the child in the branches of education is in the English language."7 The law does not specifically grant an exception for homeschools, but the Illinois Supreme Court held in People v. Levisen that the term private school may include home instruction if the instruction complies with the purpose of the law.8 Parents who prefer to teach their children at home "have the burden of showing that they have in good faith provided an adequate course of instruction in the prescribed branches of learning. This burden is not satisfied if the evidence fails to show a type of instruction and discipline having the required quality and character."9
Application of the Illinois Compulsory Attendance Law to Homeschools. Illinois counties are grouped into Regional Offices of Education (ROEs), which are responsible for administering truancy intervention programs.10 However, Illinois "does not provide any legal basis for school officials to enforce mandatory attendance laws with children whose parents have declared that they are being home schooled,"11 so the ROEs’ efforts to enforce the law with homeschools often fail. One such effort is asking homeschooling parents to complete Illinois State Board of Education (ISBE) reg-istration form 87-01 or some other registration form. ISBE 87-01 asks for the race, sex, and grade level of the child; the number and sex of staff members; the affiliation of the school; and assurances that the children are being taught in English for at least five hours per day for 176 days a year, that the school is complying with fire safety requirements, and that the school will complete an immunization form.12 However, completion of the registration form is completely voluntary.13
The need for homeschool registration has not been com-pletely overlooked by the General Assembly. On April 10, 1987, Senator Maitland introduced Illinois Senate Bill 1202, to amend the compulsory attendance law to require that "[e]very child of school age shall be registered in a public, private or parochial school or, in cases of home instruction, with the regional superintendent of schools."14 Senator Maitland felt that a notice requirement is necessary to ensure that every school-aged child is being educated and for the State to have an "accounting of the students that are out there, recognizing that at some point they may become a part of the public school system or the traditional private school system."15 Several senators felt that the bill invaded the privacy of home-schooling families.16 The home-schooling lobby opposed the bill,17 and many senators received calls from parents voicing their opposition to the bill.18 Senator Maitland pointed out that the bill would not affect parents who were legitimately educating their children.19 Nevertheless, Senator Maitland withdrew the bill due to a lack of support.20
On April 5, 1989, Repre-sentative Deuchler introduced Illinois House Bill 1265, requiring that "[t]he State Board of Education shall establish the pro-cedure to be followed by regional superintendents of schools in registering home schooling programs, and shall annually report to the General Assembly in January of each school year beginning with the 1990-91 school year, the number of pupils enrolled during the current school year in home schooling programs which have been registered with regional superintendents of schools."21 However, the homeschooling lobby successfully thwarted this effort to require homeschool registration.22
The law’s lack of an enforce-ment method has resulted in disagreement among the ROEs as to whether parents are required to prove that they are complying with the law.23 The Williamson County ROE and State’s Attorney believe that the ROE does have the authority to require proof that children are being adequately educated.24 In April 2005, a Williamson County mother was charged with allowing her fifteen-year-old son to be truant.25 The mother said she was home-schooling her son, but the ROE had checked on the family three times and found that the son was not being homeschooled.26 A Williamson County judge convicted the mother of the truancy charge.27
In contrast, many ROEs and the Homeschool Legal Defense Association (HSLDA) understand the law to say that parents are not required to provide attendance records, curricula, portfolios of work completed by the children, or standardized test scores to the truancy officer.28 In fact, in response to Williamson County school officials asking home-schooling families to complete a registration form and present their curricula to truancy officers, the HSLDA wrote to its Illinois members that if school officials visit their homes "demanding to see your curriculum or asking you to fill out a form, do not let these people in your home; do not let them see your curriculum; and do not fill out the form. The district does not have a legal right to require this."29
When a Charleston, Illinois, school district requested that parents complete a registration form, HSLDA wrote to the district explaining that the law does not require a registration form or other materials to be completed by homeschooling families.30 HSLDA told its Illinois members that they "are not required to submit a calendar, or any other materials" to school districts.31 The Lee/Ogle ROE sent a letter to homeschooling parents asking them to complete a packet that asked questions about the amount of time that home-schooled children would be taught, the qualifications of the teacher, and the curriculum that would be used.32 When this happened, HSLDA wrote to the ROE stating that the law does not require home-schooling families to complete the packet, and therefore, HSLDA-member families in Lee and Ogle counties would not do so.33 Basically, HSLDA’s letter stated that the law only requires parents to give an assurance that they are in compliance with the law and that the ROE should accept the letter as confirmation that the parents were complying.34
Although the Levisen Court held that the burden of showing compliance with the law is on the parents,35 the lack of an enforce-ment procedure has resulted in nobody having the authority to require parents to notify the state that they are homeschooling or to provide tangible proof that they actually are educating their children. Private schools are held accountable for the education they provide in various ways that homeschools, by their nature, cannot be held accountable.36 Therefore, Illinois should stop treating homeschools as private schools and should adopt a specific homeschool statute to ensure that children are being provided with an adequate education.
Requirements Found in Homeschooling Statutes. Most states require homeschooling parents to register with the state by filing a form that asks for the names, ages, and addresses of the children.37 Some forms ask for more information, such as the qualifications of the parent/instructor.38 The qualification required in some states is simply a high school diploma or general education development diploma (GED).39 Others require parents to have completed a specified number of college credits or to hold a bachelor’s degree.40 A few require the parent to have a teaching certificate.41 Some give parents several options for proving their qualifications.42
While some homeschooling statutes require children to be instructed for the same amount of time that children are required to be instructed in the public school,43 other statutes specifically state a total number of hours the child must be instructed or a number of days and hours per each of those days that a child must be in-structed.44 Statutes addressing the subject matter of homeschool instruction state that children must be taught the subjects taught at the public school,45 or they specifically list the subjects that the home-schooled child must be taught.46
In order to evaluate children’s academic progress, some states require children to take stan-dardized achievement tests. Most allow the parents to choose the test,47 but it must be administered by a person designated by the state.48 Instead of requiring tests, some states require parents to keep a portfolio of their child’s work consisting of items such as, "[a] log of educational activities that is made contemporaneously with the instruction and that designates by title any reading materials used[, and] . . . [s]amples of any writings, worksheets, workbooks, or creative materials used or developed by the student."49 Some states, such as Iowa, permit parents to choose from several evaluative methods.50
States have differing pro-cedures for what parents must do if their children do not perform satisfactorily on their evaluations. Minnesota requires that if "the child’s performance on the total battery core [of the evaluation] is at or below the 30th percentile or one grade level below the per-formance level for children of the same age, the parent must obtain additional evaluation of the child’s abilities" to determine if the child has a learning disability.51 The superintendent must provide a list of the parent’s violations of the school statute.52 If the violations remain uncorrected after fact-finding and mediation, the superintendent must notify the county attorney who may bring charges against the parents.53 In Pennsylvania, if the super-intendent believes a child is not being educated appropriately, he may require a portfolio, tests, and an annual written evaluation of the student’s progress to be submitted to the district.54 If the super-intendent still believes that the child is not receiving an appropriate education, he must notify the parent of which "aspects of the documentation are inadequate,"55 and the parent must provide additional documentation.56 If the parent does not submit additional documentation, the child must be enrolled in a public or private school.57 If the documentation is submitted but the superintendent believes that it does not demonstrate that the child is receiving an appropriate education, the super-intendent must notify the parent, and the board of directors of the public school must also provide a hearing.58 If the examiner finds that the documentation does not demonstrate that the child is receiving an appropriate education, the child must be enrolled in a public or private school.59 How-ever, the examiner may instead require that a remedial plan be established for the homeschool.60 Proposal for an Illinois Homeschooling Statute. When constructing a homeschooling statute, it is important to first consider the nature of the state’s interest and the nature of the parent’s interest. In Wisconsin v. Yoder, the United States Supreme Court held that when a case involves parents asserting that a state regulation impinges upon their general right to direct the education of their child, the regulation is constitutional if it is reasonably related to a state interest.61 However, when parents assert that a state regulation im-pinges upon both their right to direct the education of their children and their First Amendment right to the free exercise of their religion, the state must show a compelling interest for applying the specific regulation to all children and not granting an exception to the parents asserting the free exercise claim.62 The Illinois Religious Freedom Restoration Act requires that the Yoder compelling interest test be applied even when a neutral law substantially burdens the free exercise of religion.63
Although strict scrutiny must be applied only when home-schooling requirements impinge on both the parents’ right to direct the upbringing of their children and on their right to the free exercise of their religion, in order to avoid determinations as to whether parents’ religious beliefs are sincere, an Illinois homeschooling statute should be narrowly tailored to further the State’s compelling interest in ensuring that all students are being educated adequately. For instance, an Illinois homeschooling statute should require parents to notify the state that they are homeschooling. However, the form that parents are asked to complete, ISBE 87-01,64 is not narrowly tailored since it requires parents to fulfill requirements that are unnecessary to further the State’s interest. ISBE 87-01 asks for assurances that the children are being taught for at least five hours per day for 176 days a year.65 Homeschooling parents are able to give more individual attention to their children and to take advantage of more creative learning oppor-tunities than teachers who must teach many children at once within the confines of a classroom, so requiring parents to teach five hours per day for 176 days per year is not necessary to further the State’s interest.
Furthermore, ISBE 87-01 asks for assurances that the school will complete an immunization form.66 Some parents have religious objections to having their children immunized. Homeschooled child-ren are not in a classroom, so they are less likely to contract illnesses or transfer them to other children. Therefore, immunizing home-schooled children is not necessary to ensure that homeschooled, publicly-schooled, or privately-schooled children in Illinois are adequately educated. Because an Illinois homeschooling statute should be narrowly tailored, the notice requirement should only require the names, birthdates, and grade levels of the children; an address and phone number of the place where the education will take place; the names of the parents who will be providing the education; and the method that the parents have chosen to evaluate their children’s academic progress.
In addition to leaving to the parents’ discretion the number of hours and days the children will be instructed and whether the children will be immunized, the statute should also leave to the parents’ discretion the majority of the subject matter that must be taught, requiring only the basic skills of reading, writing, and math. By requiring that children be taught how to read, write, and do math, the statute furthers the State’s interest in educating citizens so they will be able to support themselves and participate in the political process as adults, while at the same time infringing only minimally on the parents’ right to direct the upbringing of their children. It also recognizes that parents and professionals sometimes disagree on what should be taught to children and how it should be taught.
"The state must have a mechanism by which it can confidently and objectively be assured that its citizens are being adequately educated,"67 but that mechanism must also be the least restrictive means available if it is to withstand strict scrutiny. There-fore, Illinois should provide parents with at least two methods of evaluation from which they can choose. The first option should be a standardized test administered by someone chosen by the parents and approved by the State. The parents should be given a list of tests from which to choose, and the State should bear the costs of the test. Keeping in mind the previous explanation why only the basic skills of reading, writing, and math should be required, the list of tests should include ones that evaluate only those academic areas.
A second option for parents should be to submit a portfolio of each child’s work. The portfolio should include the curriculum, a list of books read by the child, copies of worksheets completed or papers written by the child, and copies of tests completed by the child. As with the standardized tests, the list of materials to be included in the portfolios should be limited to work covering the subjects of reading, writing, and math. Illinois should require an evaluator selected by the parent and approved by the ROE to review the portfolio and assess the child’s academic progress.68
The statute should also require that if a child scores below the 30th percentile on the standardized test or is found by the portfolio eval-uator to be performing at one or more grade levels below the level for children of the same grade, the child should be evaluated for learning disabilities.69 If the child has a learning disability, the parent and the ROE should develop an Individualized Education Program (IEP) that describes an alternate method of evaluation that is commensurate with the child’s abilities. If the child does not have a learning disability, the ROE should give the parents a specified amount of time to provide additional documentation demonstrating that the child is being adequately educated.70 The parent must choose an evaluator approved by the ROE to review the additional docu-mentation. If the evaluator finds that the child is one or more grade levels behind children of the same age, then the child must be enrolled in a public or private school.71 If the parent does not submit any additional documentation, then the child must be enrolled in the public school or a private school.72 Because a child may have been several grade levels behind when the homeschooling first began, the superintendent of the ROE should have discretion to establish a remedial education plan instead of requiring the child to enroll in a public or private school.73
Conclusion. Illinois’ com-pulsory attendance law does not sufficiently ensure that home-schooled children are being educated because it fails to require parents to register with the State and fails to provide a method for its enforcement. To further the State’s compelling interest in ensuring that children are ade-quately educated, Illinois should adopt a homeschool statute that is narrowly tailored. Therefore, it should not require parents to teach for a specified number of hours or days, to immunize their children, or to teach subjects beyond the basic skills of reading, writing, and math. Parents should have the choice between having their children evaluated with stan-dardized tests and submitting portfolios of their children’s work. It should also describe the procedures that the ROE should follow if the evaluation shows that a child scored below the 30th percentile or performed one or more grade levels below children of the same age.
2 Wisconsin v. Yoder, 406 U.S. 205, 221 (1923).
3 Meyer v. Nebraska, 262 U.S. 390, 402 (1923).
4 Meyer, 262 U.S. at 399-400.
5 Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925).
6 105 Ill. Comp. Stat. Ann. 5/26-1 (West 1998 & Supp. 2006).
7 Id. § 26-1(1).
8 People v. Levisen, 404 Ill. 574, 577, 90 N.E.2d 213, 215 (1950).
9 Levisen, 404 Ill. at 578, 90 N.E.2d at 215.
10 Illinois State Board of Education, Directory of Regional Offices of Education and Intermediate Service Centers 2 (September 2006), http://www.isbe.state.il.us/regionaloffices/pdf/roedirectory.pdf.
11 Letter from Gerald M. Brookhart, Superintendent of Peoria County Regional Office of Education, to author (Sept. 28, 2006) (on file with Northern Illinois University Law Review).
12 Illinois State Board of Education, Form 87-01: 2006-2007 Nonpublic Registration, Enrollment, and Staff Report, http://www.isbe.state.il.us/ research/pdfs/87-01_np_report.pdf.
13 See A survey conducted by the author of this article directed to Regional Offices of Education throughout Illinois, the results of which are available upon request by contacting the Northern Illinois University College of Law - Law Review Office at (815) 753-0619 or firstname.lastname@example.org (Forty-four ROEs were surveyed, and fifteen responded. Nine of the fifteen ROEs responded that when their office receives allegations that a homeschooled child is not receiving an education that complies with Illinois law, the ROE requests the parent/guardian of the homeschooled child to complete either ISBE 87-01 or a registration form created by that ROE. Eight of these nine ROEs responded that the completion of the registration form is voluntary, and one of the nine indicated that it requires parents and/or guardians to sign a statement verifying they are homeschooling their children. Six of the fifteen ROEs surveyed responded that when their office receives an allegation that a homeschooled student is not being educated in compliance with the Illinois compulsory attendance law, the ROE has no legal authority to monitor the child’s homeschooling or to do anything more than encourage the parents to comply with the law. Seven of the fifteen ROEs responded that when their office receives an allegation that a homeschooled student is not being educated in compliance with the Illinois compulsory attendance law and the ROE finds that the allegation is true or cannot be verified, the ROE contacts the State’s Attorney.).
14 S.B. 1202, 85th Gen. Assem., Reg. Sess. (Ill. 1987).
15 S.B. 1202, 2nd reading, at 243.
16 See id. at 247-48.
17 See Ad Hoc Committee, http://www.illinoishouse.org/a17.htm (last visited Dec. 29, 2006).
18 See S.B. 1202, 2nd reading, at 248.
19 Id. at 246, 248.
20 S.B. 1202, 3rd reading, at 51.
21 H.B. 1265, 86th Gen. Assem., Reg. Sess. (Ill. 1989).
22 See Ad Hoc Committee, http://www.illinoishouse.org/a17.htm (last visited
Dec. 29, 2006).
23 See supra note 13.
24 See Ashley Wiehle, Mother Convicted of Allowing Truancy, The Southern Illinoisan, May 26, 2006, http://www.southernillinoisan.com/articles/2006/05/26/top/16444460.txt.
28 See supra note 13. The Homeschool Legal Defense Association (HSLDA) is an organization of families who homeschool their children. HSLDA provides legal services to member families and advocates for homeschooling on Capitol Hill, in state legislatures, and in the media. See http://www.hslda.org/about/default.asp.
29 Christopher Klicka, Illinois: Officials Visit Homeschool Families Demanding to See Curriculum), http://www.hslda.org/elert/archive/2006/09/20060911115315.asp. (Sept. 11, 2006, 11:53:15AM).
30 Homes School Legal Defense Association, Charleston School District Requires Illegal Registration for Private Schools, (Aug. 5, 2005) http://www.hslda.org/hs/state/il/200508050.asp?.
32 Letter from HSLDA to Lee/Ogle Regional Office of Education (January 4, 2006) (on file with Northern Illinois University Law Review).
34 See id.
35 See Levisen, 404 Ill. at 578, 90 N.E.2d at 215.
36 Murphy v. Arkansas, 852 F.2d 1039, 1044 (8th Cir. 1988).
37 See, e.g., Fla. Stat. §1002.41(1)(a) (West 2004). See also HSLDA Home School Laws, http://www.hslda.org/laws/default.asp?.
38 See, e.g., N.D. Cent. Code §15.1-23-02(1)(e) (2003); Ark. Code Ann. §6-15-503(3)(E) (1999).
39 See, e.g., Ga. Code Ann. §20-2-690(c)(3) (West 2003 & Supp 2006); N.M. Stat. §22-1-2.1(C) (2006).
40 See, e.g., Tenn. Code Ann. § 49-6-3050(b)(7) (2002 & Supp. 2006).
41 See, e.g., Mich. Comp. Laws Ann. § 380.1561(3)(a) (West 1995) (If the homeschool is operated as a state approved nonpublic school, the instructor must have a teaching certificate). But see Mich. Comp. Laws § 380.1561(3)(f) (West 1995); People v. DeJonge, 501 N.W.2d 127 (Mich. 1993) (If the child is educated at home in an organized educational program, then the instructor does not need to have a teaching certificate).
42 See, e.g., N.D. Cent. Code §§ 15.1-23-03(1)-(4), 15.1-23-06, 15.1-23-07 (2003); Wash. Rev. Code Ann. § 28A.225.010(4)(a)-(c) (West 2006).
43 See, e.g., Utah Code Ann. § 53A-11-102(2)(b)(ii) (2006).
44 See, e.g., Ga. Code Ann. § 20-2-690(c)(5) (West 2003 & Supp. 2006).
45 See, e.g., Utah Code Ann. § 53A-11-102(2)(b)(i) (2006).
46 See, e.g., 24 Pa. Stat. Ann. 13-1327.1(c)(1) (West 2006).
47 See, e.g., Minn. Stat. Ann. § 120A.22(11) (West 2000 & Supp. 2006).
48 See, e.g., 24 Pa. Stat. Ann. 13-1327.1(c)(2) (West 2006).
49 Fla. Stat. Ann. §1002.41(1)(b)(2003).
50 See Iowa Code §§ 299A.2, 299A.4(3), 299A.4(7)(a)-(c), 299.4 (West 1996 & Supp. 2006).
51 Minn. Stat. Ann. § 120A.22 (West 2000 & Supp. 2006).
52 Id. § 120A.26(3).
53 Id. § 120A.26(4)-(6).
54 See 24 Pa. Stat. Ann. 13-1327.1(h) (West 2006).
55 Id. at 13-1327.1(i).
56 Id. at 13-1327.1(j).
58 Id. at 13-1327.1(k).
59 Id. at 13-1327.1(l).
60 24 Pa. Stat. Ann. 13-1327.1(k) (West 2006).
61 See 406 U.S. 205, 233 (1972).
62 See id.
63 See Illinois Religious Freedom Restoration Act, 775 Ill. Comp. Stat. 35/10 (West 2001).
64 See supra note 13.
65 Illinois State Board of Education , Form 87-01: 2006-2007 Nonpublic Registration, Enrollment, and Staff Report, http://www.isbe.state.il.us/research/pdfs/87-01_np_report.pdf.
67 Murphy v. Arkansas, 852 F.2d 1039, 1042 (8th Cir. 1988).
68 See Iowa Code § 299A.4 (7)(a)-(c) (West 1996 & Supp. 2006).
69 See Minn. Stat. Ann. § 120A.22 (West 2000 & Supp. 2006).
70 24 Pa. Stat. Ann. 13-1327.1(j) (West 2006).
73 Id. at 13-1327.1(k).
Erica Mynarich earned her under-graduate degree from Loyola Uni-versity Chicago in December 2003. She is a third year law student at Northern Illinois University College of Law.