September 26, 2005

Scott Defisks HoNDA Sect. 7: Educational Privacy

SEC. 7. CLARIFICATION OF SECTION 444 OF THE GENERAL EDUCATION PROVISIONS ACT AS TO PUBLICLY HELD RECORDS OF STUDENTS PRIVATELY EDUCATED AT HOME UNDER STATE LAW.

Chris says, “HoNDA is attempting to establish higher privacy standards for homeschooler information that may be in the public school system. I'm all for privacy, but really, should we have special privacy privileges not afforded to the public school kids?”

Under current law, the educational records of public school students are carefully protected by federal law. Homeschool records, by contrast, are legally treated as “public records” in 46 states.

HoNDA Section 7 is a serious effort to correct a serious problem.

Back in the early 1970s, state and local governments had all sorts of educational records for children in public schools. Congress decided to protect the privacy of students who attend federally funded educational institutions, and enacted the Federal Educational Records and Privacy Act (FERPA), in 1974. This federal law effectively overrides any “public records laws” to the contrary in all 50 states. As a result, public school records are extraordinarily well protected.

FERPA does not address the educational records of students in schools that do not receive federal funding, but this did not homeschoolers back when FERPA was first enacted. In the 1970s, no state or local school districts systematically collected educational records for homeschoolers.

When states began to enact homeschool statutes, however (starting with Arizona and Mississippi in 1982), homeschool paperwork began to accumulate. Although most school officials assumed FERPA protected those records, FERPA did not apply because homeschoolers do not “attend” any federally-funded educational institution. In the absence of any federal law to the contrary, each state’s “public records” law applied.

Not every state has a homeschool privacy problem. There is no need for homeschool privacy laws in Alabama, Alaska, Florida, Idaho, Illinois, Michigan, Missouri, New Jersey, Oklahoma, or Texas, because homeschoolers in those states are under no significant pressure to register with school authorities. Families in states like Connecticut can educate an unregistered child at home without breaking any laws, but must resist pressure from the government if they wish to preserve their privacy. In the rest of the states, homeschool information in the government’s hands is technically “public data,” no matter how sensitive or private that information may be.

Other states have significant privacy problems, however. Maine was the first to recognize the need, and, with the help of homeschooling legend Kathi Kearney, passed state legislation to protect homeschool privacy in the 1980s. Massachusetts has protected homeschool privacy by regulation. Minnesota enacted a homeschool privacy statute in 2003, and Nebraska legislated homeschool privacy in 2004.

There is considerable risk in drafting homeschool privacy laws at the state level. While legislators are almost unanimously in favor of privacy, they are not so unanimous in their support of homeschooling. Any attempt to amend the homeschool law raises the prospect of inviting hostile amendments. Homeschoolers in a few states have enough legislative clout to get a good change through without risk, but homeschoolers in other states have to choose between risking their homeschool liberty and risking their homeschool privacy.

HSLDA argues that a change to the federal privacy laws would enable us to protect privacy without risking liberty. HoNDA Section 8 attempts to achieve that goal. We are open to any constructive alternatives that other homeschoolers can suggest.

Permalink

Comments

FERPA School districts should not retain records of homeschooled students. If the school has no records, or does not keep them to begin with, then they cannot be released.

Solution: Homeschooling parents should press their influence to amend their state statutes and eliminate the requirements for submission of records of homeschooled students to school districts.

In CT we do not submit paperwork to the state and so they do not keep records on us. Information about anyone is certainly kept by the government in other ways - IRS records, and other information that you yourself may routinely give out.

Posted by: Judy Aron at September 27, 2005 02:03 PM

The government should not have access to any records of any homeschooler and parents should not encourage such practices by merely "clarifying" existing laws. We should work to eliminate such laws.

Why should laws exist that allow public school officials or government officials of any kind to retain records of children in "non-public schools"? If the "schools" are "non-public" shouldn't the records also be "non-public"?

Why allow insertion of any language in a federal bill purporting to prevent the "release" of these records without the consent of the parents? If the bill purports not to "require" educational institutions to maintain records of non-public students, then why is there any need to make sure that those agencies don't release those records without the consent of the parents?

The changes requested by HR3753/SB1691 can be interpreted as granting the federal government the right to regulate the dissemination of information concerning homeschooled students when the federal government has no constitutional right to do so. The proposed legislation now inserts a provision in this law applicable to homeschoolers. It is wholly unnecessary and has the potential for unwanted consequences such as federal regulation and federal litigation that may prove detrimental to all homeschoolers.

It can be argued that any parents of a child whose records are held by an agency or institution that receives federal funding is already able to access records, correct them, and give or refuse consent under the existing law. No other changes are necessary.

Federal legislation that is being considered (HR3753/SB1691) which will make changes to FERPA (Family Educational Rights and Privacy Act of 1974) is totally unnecessary!

Posted by: Deborah Stevenson at September 27, 2005 02:05 PM

Judy and Deborah are both sincere and committed activists, but they view the world through their unique vantage point as Connecticut homeschoolers. What they say makes perfect sense if you live in AL, AK, CT, ID, IL, IN, MI, MO, NJ, OK, or TX. If you are particularly brave and not particularly vulnerable (ie., single parent, special needs, low income) then it might be good advice for families in a few additional states where the legal risk is low and the homeschool options are plentiful.

If NHELD is officially calling on homeschoolers in other states to file legislation to achieve their goals, they may want to consult with Larry and Susan Kaseman, who generally offer the opposite advice. The Kasemans have long noted the drawbacks inherent in opening up a homeschool law for revision.

I'm chipping away at solving this problem state by state. I cover eight states, and three of them now have explicit homeschool privacy laws.

I was on the phone with the Ohio Department of Education this morning, trying to get them to support a change in the public records law. HSLDA has over 3800 member families in Ohio, and there are several legislators who are VERY homeschool friendly, and there is no "homeschool statute" on the books that a rogue legislator could mess with, so I think we could steer a good privacy bill through the Buckeye State.

What are the chances that homeschoolers could get a good privacy law through some of the more resistant legislatures, such as Pennsylvania or New York?

Deborah, would you be willing to draft a good homeschool privacy bill for the Connecticut families that are voluntarily providing information to the Department of Education? I'm pretty sure HSLDA would support you on any bill that protects the privacy of our members without triggering the risk of a legislative backlash. Do you think it can be done?

Posted by: Scott W. Somerville at September 27, 2005 03:53 PM

Scott - No - we aren't looking at this through rosy eyes of a free state - This has little to do with bravery or vulnerability - and has everything to do with the democratic process and being involved. We are telling people to wake up and do what democracy demands of them. Understand their State laws and work to get them changed if they aren't to their liking. No one said it is easy especially for those who are working class folk. It shouldn't be about getting HSLDA or any other special interest group to do the work for us. It is about us getting off our duffs and making sure that our rights are not eroded and taken away from us.

After educating yourself, that may mean that you spend a long time educating politicians and electing people who understand what sovereign parental instruction is all about, and cultivating a political environment that would make way for easement of restrictive homeschool laws. Those movements are afoot in states like New York, etc..

We (NHELD) don't purport to tell anyone in any other state how to draft proposed legislation. That is for them to do with the help of an educated legislator. I know a woman in New Hampshire who recently did just that. As for your comment about the Kasemans, well one needs to use some common sense and good judgement when revising homeschool laws. Sometimes you need to take a risk, but you do so when you have laid the groundwork to know that you have a good shot at acheiving what you want.

We are also basically talking about not making any more laws that specify homeschooling, but rather those that talk about parent's rights, all forms of education, all children being educated, and other more general terminology. Specifying homeschooling in statute only incurs further regulation and discriminatory practices for one group over another, and is subject to future amnedments (some for the worse).

As for the CT families voluntarily providing information to the state.. our statewide organinations routinely tell people that they run the risk of having their information bandied about if they file a Notice of Intent. (I personally haven't filed in years) As we stated before it CAN be argued that any parents of a child whose records are held by an agency or institution that receives federal funding is already able to access records, correct them, and give or refuse consent under the existing law. So no other changes are necessary. Most homeschool parents in CT know their rights and know how to protect themselves from education administrators. The best thing to do is not to be in a position where you have to give any information to the state, and that is what we recommend people work towards.

Let me ask you something - and I ask this with all due respect - Scott - you say you "cover" 8 states.. I am assuming you don't have a law license in all of them and cannot practice there or give legal advice.. so tell me how you are so well versed in telling people how they should interpret their laws and how you are qualified to "represent" their interests? It amazes me how HSLDA can waltz into a state and tell people what they need. We know many instances where HSLDA has done just that and have compromised a situation and given concessions. The folks end up with laws that are not entirely attractive.

As for Federal legislation...I personally think you folks are doing this to us on a federal level for Farris' ego and recognition, and to ultimately create some sort of federal department of homeschooling. I am not willing to give up my state's rights for that, and I am appalled at the hypocrisy of HSLDA which has over the years made the same pronouncements about the 10th amendment and federal legislation not being wrapped up in homeschool/education legislation and yet you are doing just the opposite. For you guys it's all about countering the NEA and showing clout and one upmanship. I am not willing to lose my homeschool rights for those ego and power games. Your organization does not represent all 2 million (and counting)homeschoolers in this country and you would be well served to remember that. I remind my state congressional delegation that fact all the time, when I speak to them.

Face it, HSLDA is made up of lawyers who want to make new laws - perhaps those that even allow them to litigate in court. Plus the more fear you can instill in folks saying that they don't have laws to protect them - then the more membership you can garner. Honestly, look at your income and budget - it's all about the money.. Someone's gotta pay for those offices in Washington DC.

Posted by: Judy Aron at September 28, 2005 03:12 PM

Judy, HSLDA has a local attorney of record in each of the 50 states (unless we have a member of that State's bar in-house). We've asked for and have received verification that this complies with the rules of legal ethics. As NHELD tries to serve members in other states, it will probably need to do something similar.

You attribute HSLDA's support of HoNDA to "Farris's ego," but Mike Farris has very little day-to-day interaction with HSLDA anymore. He is the VERY busy president of an active and growing college, and I can't recall having heard him say anything about HoNDA in more than two years.

My reasons for pushing HoNDA have a lot to do with the C. family in Massachusetts, who is trying to fend off a mandatory special education evaluation, or San Juan Community College in New Mexico, which is trying to demand GEDs, or the B. family in Wyoming, whose son is trying to get into the Navy. These are my clients, and I am obligated to do what I can to help them achieve their goals.

Posted by: Scott W. Somerville at October 3, 2005 12:25 PM

Number (1) NHELD doesn't "serve" members in any state.. we show them how to help themselves and how to work to change their own laws. We don't barge in and try to negotiate or compromise their rights away, nor do we seek to destroy state's rights or get unconstitutional federal legislation
passed.

Number (2) - You may be trying to help three families by putting homeschooling into federal statute, and in doing so you will destroy the rights of hundreds of thousands of the rest of us, by usurping current state's rights. What you are doing is unconstitutional and you know it. H$LDA has even stated that fact.

You still have not quantified to me or anyone else on these boards how many actual legitimate complaints you have had which might justify federal legislation (as if it can ever be justified).

You might tell the C. family in Massachusetts, who is trying to fend off a mandatory special education evaluation, that already have the right Under IDEA (Individuals with Disabilities Education Act), 34 C.F.R. §300.505, parents already do have the right to refuse consent for evaluations and the right to refuse placement of a child. There is no need for any change in IDEA to protect homeschoolers.

You might advise San Juan Community College in New Mexico, which is trying to demand GEDs, about the "Dear Colleague letter" http://www.ifap.ed.gov/dpcletters/GEN0211.html or at least tell the folks to go to a different college that doesn't have idiots for administrators running it. Tell them to vote with their feet, I know many homeschoolers who do just that, and are better off in the long run).

and you might tell the B. family in Wyoming, whose son is trying to get into the Navy, that if he wants to be Tier I he can put in two years
at a community college and get that ranking. Tell your clinets to read up about it at
http://home.kc.rr.com/milhmschlhq/military_enlistment.htm

Sounds like you are looking for the federal government to help your "clients" instead of you doing the job of educating them about their rights, as well as educating the administrator imbeciles that are blocking their way because they are uninformed or are anti-homeschooling. In case you haven't been paying attention, federal law will not fix that, we will still have imbecile administrators in addition to an unconstitutional law.

I guess you think that having federal law would make your job easier.. in addition to getting paid to sit and work these boards all day long, you'd only have to take people to federal court and reap huge legal fees to boot. never mind the rest of us poor homeschooling slobs who will be stuck with a federal definition of homeschooling and the usurpment of state's rights.

HMM.. come to think of it .. you still have not given us what the federal definition of homeschooling will be.. after all... the term homeschool will be used in federal statute.. so what exactly WILL it mean Scott? Sincs H$LDA has now written themselves into this HONDA Bill - what exactly are they plotting for a federal definition of homeschool? and since you claim Farris is just too busy to be involved in this anymore - who exactly will be head of the federal department of homeschooling? (an extended arm of the Federal Department of Education, no doubt) ??

Posted by: Judy Aron at October 4, 2005 10:24 PM

If the comment entry box is gone it's because comments are closed for this entry. Please feel free to use the "contact" link above to get in touch.