Legal Access to Public School Classes

Antony Kolenc
Our five homeschooled children have developed wonderful creative interests in areas such
as music, dance, and drama. My wife and I have sought to foster those interests through
ballet classes, theater productions, piano lessons, and the like. When we lived in Colorado
Springs, we were aided by Colorados homeschool-friendly policies. Under state law, our
children had legal access to the local public schools for extracurricular classes, which helped
us provide for our familys unique educational needs. For instance, my daughter took guitar
lessons through a class offered at the local high school, while my son enrolled in the local
middle school band. However, not every state or school district offers these options for
homeschooling families.

A Growing Trend
Over the years, state legislatures have begun to recognize that, as a matter of fairness,
homeschooled students should have access to some public school resources. After all,
homeschoolers pay federal, state, and local taxes that help fund those public schools. Also,
home-educated students can bring diversity to public school activities while benefiting from
particular classroom-rich experiences. For instance, some families find it difficult to provide
their children the expensive resources that are sometimes available in public school science
labs, which often use specialized equipment and materials to perform complex experiments.
This is an area of controversy within the homeschool community, with some parents
rejecting any efforts to integrate their children into state-run schools. But for those families
in favor of such opportunities, increasing numbers of states have adopted equal access
policies that give homeschoolers the ability to supplement their curricula in the public
schools. States have different philosophies in this area, which can be illustrated by focusing
on three general approaches.

Three Approaches
The most expansive approach in this area allows homeschooled students to participate in
public school classes and activities, whether they are academic, extracurricular, or athletic in
nature. Idaho has adopted this policy of total participation since at least 1995, allowing
children educated at home to dual enroll in their local public schools. Homeschoolers may
enter into any program in the public school available to other students subject to compliance
with the eligibility requirements herein and the same responsibilities and standards of
behavior and performance that apply to any students participation in the activity . . . .1
This broad philosophy offers home-educated students the highest levels of flexibility and
opportunity and provides a model worthy of imitation in other states.
A more limited approach permits homeschooled students to take some academic courses
within the public school curriculum without necessarily setting a statewide policy for other
activities, such as interscholastic sports. Wisconsin has taken this view since 1998but only
at the high school levelwith a state law requiring high school districts to allow a pupil
enrolled in a . . . home-based educational program, who has met the standards for
admission to high school . . . to take up to 2 courses during each school semester . . . if the

school board determines that there is sufficient space in the classroom.2 These are
academic courses, by and large, offered as part of the high schools regular curriculum.
A third approach takes the flip side of the second philosophy. It allows homeschooled
students to participate in extracurricular and sports activities while not necessarily opening
the public schools doors to academic courses. For instance, Pennsylvania has required its
school districts to allow home-educated students to participate in many extracurricular
activities, including, but not limited to, clubs, musical ensembles, athletics and theatrical
productions, subject to certain reasonable rules.3 Academic courses are not included in this
policy, and some students have had to fight for the right to compete in co-curricular
activities such as spelling bees. With fifty states and countless individual school districts,
one can find some variety of these three approaches all across the nation.

Suing for Access?

What options are available for parents living in jurisdictions that have simply refused to
open their public schools to homeschoolers? Many states have not yet passed an equal
access law.4 Due to the mixed feelings about this controversial issue within the homeschool
community itself, lobbying groups have not pursued it to the same extent as other policies.
In jurisdictions without a formal equal access policy, there may or may not be discretion at
the local school board to allow homeschooled students to participate in academic or
extracurricular activities. Additionally, statewide athletics associations may have their own
rules governing homeschool participation in interscholastic sports.5
In those states where full equal access is not available, some families may be tempted to
resort to the courts in an effort to force school districts to grant access. This approach has
been tried in the past, with no real success. Courts in several states have rejected lawsuits
from parents who have argued that unequal access amounted to either illegal
discrimination against homeschoolers or a punishment against families who choose to
exercise their religious freedom by teaching their children at home. While these arguments
have a basis in law, decisions about limited public school resources often involve complex
considerations, giving states sufficient cover to avoid these legal attacks. For that reason,
the more successful lawsuits (or threats of legal action) will be based on existing equal
access statutes that are being ignored or misinterpreted by local school officials.
Instead of filing a lawsuit, homeschooling families who wish to provide their children with
access to public school opportunities should work through their local schools and school
boards. In some cases, school officials who are petitioned for equal access will give parents
a warm reception, and where such requests are denied, administrative appeals may be
possible. Parents should also get involved in efforts to petition their state representatives
and legislatures to pass formal equal access laws at the state level.
Finally, parents should always remember to tap the opportunities and resources available
through local homeschool groups and co-ops. It may be that everything a family needs is
already available in the community without turning to the state-run school system.
Endnotes:
1. Idaho Code 33-203(2).
2. Wisconsin Statutes 118.145(4).
3. Pennsylvania 24 Pennsylvania Statutes Annotated 13-1327.1(f.1.)(1).

4. See Home School Legal Defense Association (HSLDA), State Laws Concerning
Participation of Homeschool Students in Public School Activities, October 2012 (available at
www.hslda.org/docs/nche/Issues/E/Equal_Access.pdf) (compiling a summary of equal
access statutes in all 50 states).
5. See Antony B. Kolenc, Legally Speaking, Tebow Bills and Access to Public School
Sports, The Old Schoolhouse Magazine, June 2012, at 12425 (further discussing the move
to open public school sports to homeschooled athletes).
Antony B. Kolenc (J.D., University of Florida College of Law) is an author, speaker, and law
professor at Florida Coastal School of Law. He is also a retired U.S. Air Force officer. He and
his wife have homeschooled their five children for over a decade. Tony is author of The
Chronicles of Xan historical fiction trilogy, as well as many legal articles. Learn more about
him at www.antonykolenc.com. If you have a law-related homeschooling question that you
would like to see Tony address in a future column, please email TL@TheHome
schoolMagazine.com.
Copyright 2013, used with permission. All rights reserved by author. Originally appeared in
the February 2013 issue of The Old Schoolhouse Magazine, the family education
magazine. Read the magazine free at www.TOSMagazine.com or read it on the go and
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