The Arguments in the Jones Case – Randal Minor, Esq. 

Our case rests on the principle that every child in West Virginia, whether in public school, private school, parochial school, or homeschooled, should have access to the richest possible menu of educational and developmental experiences. It raises a combination of state and constitutional claims.

    The state claims relate to various statutory and regulatory duties defendants have, including their duty to provide every child with equal educational opportunities, their duty to implement extracurricular activities in an equitable manner, their duty to provide available assistance to homeschooling families, and the SSAC's duty to promulgate reasonable rules and regulations governing athletic activities.

    Our constitutional claims rest on three fundamental rights: the right of every child in the state to a thorough and efficient education, the right of parents to direct their children's educations, and the right to free expression of religion--to the extent a family’s decision to homeschool is based on religious convictions. Given these fundamental rights, a homeschooled child should not be treated differently without a compelling reason and a showing that the state policy represents the least restrictive means for achieving that interest. In addition, we have a claim that the defendants cannot punish a homeschooling family for exercising a fundamental right or otherwise coerce a family to give up a fundamental right. 

Defendants offered the following arguments:
1. There is a rational basis for the rule based upon maintenance of academic standards, maintenance of school spirit, and a concern that school officials will have no way of controlling misbehaving homeschooled students. Academic standards relate to a concern that failing public school children will opt for homeschooling as a way to maintain eligibility.

    We argued, and the Court seemed to agree, that these cases could be handled individually and such attempts could be easily identified and handled accordingly. We also pointed out that homeschooling children who meet all state standards should be presumed to be doing passing work since that is all that is required for a child to go on to the next grade. There are no legitimate concerns about school spirit since under current SSAC policies a child from a school without a team can participate on a team at another school in the same region. With regard to misbehaving homeschoolers, we pointed out that they could be kicked off a team or otherwise disciplined just as any other student would be. Homeschoolers aren't asking for special treatment; they just want the same opportunity that other children in the state have to participate. The Court also noted that he assumed parents would discipline their children if they behaved inappropriately.
2. Sports programs would be swamped with homeschoolers wanting to participate. The State Board's attorney from the Attorney General’s office estimated that half of WV’s 4000 homeschoolers might want to join a team.

That seems unlikely since probably 75% or more of WV homeschoolers are in grades 1-5. [The experiences in states that do not discriminate against homeschoolers indicate that a small minority of homeschoolers participates in interscholastic sports.—Editor] 3. Homeschooled children might not be covered under the state liability coverage.

     I said I suspect the Board of Risk and Insurance Management would cover all participants in the activity, which is what happens with respect to participants, including pro bono attorneys, in law school service activities. Regardless, the judge was unwilling to give that concern much weight without some proof that the Board had expressed a clear intent not to cover homeschooled children participating in interscholastic athletic events.

4. Schools don't receive money for homeschooled students to participate on sports teams.

     The judge pointed out that home-schooled families pay taxes, and the state is getting their money without having to spend much, if anything, on a homeschooled child.

     Defendants’ policy ignores the fact that homeschooled children, while educated outside the normal school setting, still are a part of the state education system. Pursuant to Exemption B, families must file a notice of intent to home-school, a plan of instruction, and results of an annual academic assessment with their county superintendent (WV Code § 18-8-1, Exemption B(b)). The superintendent has the authority to seek an order from the circuit court denying home instruction upon a showing of educational neglect or other compelling reason to deny home instruction. The superintendent has an obligation to provide home-schooling families with such available assistance, including textbooks, other teaching materials and available resources, as may assist the family in providing home instruction to their child.

     Finally, the State Board of Education charges county boards with developing partnerships with homeschooling families (WVCSR § 126-42-9). Given the level of involvement the county board and superintendent have with homeschooling families, plaintiffs believe their son should be considered a student of the county school system and in compliance with the enrollment rule. Such a conclusion would be consistent with WVCSR § 126-42-9.3.4, which provides that home/hospital instruction for students who are unable to attend school for a period of time is considered an extension of the regular school program of study.     

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