Controversy over “Attendance” at Church Schools
memorandum from the Alabama state superintendent of education to all city and county superintendents dated September 24, 2009, has sparked a controversy regarding the church school option employed by
parents providing home instruction to their children. The memorandum from Dr. Joseph B. Morton reiterates Alabama’s long-held position that the only legal means of “homeschooling” is by a private
tutor who is certified to teach in the public schools. Morton’s memorandum recognizes attendance at a church school as an option for complying with Alabama’s compulsory education requirements, but
any such arrangement is not recognized as “homeschooling.” The memo makes specific reference to the “enrollment and attendance” language of Alabama law as it relates to the filing of a church school
enrollment form with the local public school superintendent. Merely being enrolled in the church school is not sufficient to fulfill the requirement that the student attend the school.
response to the state superintendent’s memorandum, the attendance supervisor of the Lamar County Board of Education sent out a memorandum to church school administrators in the county, requesting
that they reply and verify that all students in their schools were in actual attendance and not just enrolled. After a church school administrator in Eva forwarded the county attendance supervisor’s
memorandum to Home School Legal Defense Association, Senior Counsel Dewitt Black mailed a response to the county official to address his concerns.
Black’s letter pointed out that since the onset of the modern home education movement approximately 30 years ago, parents in Alabama have been instructing their children at home by either one of two
methods: (1) as a private tutor certified to teach by the State of Alabama under Section 16-28-5 of the Alabama Code or (2) by enrollment in and attendance at a church school located in Alabama as
authorized by Sections 16-28-1 and 16-28-3 of the Code. The vast majority of parents conducting home instruction employ the second option. This option requires that the school be operated under the
oversight of a local church, group of churches, denomination, and/or association of churches.
Black went on to explain that there are typically two ways that home instruction through a church school is structured. The first is that each home is considered to be a separate church school that
is a ministry of the church. Under this approach, a church may have many individual church schools that it oversees. Since the home is the only location of the church school, students attend the
school by being present at home where they receive instruction from their parents. The second way that home instruction is conducted through a church school is that each home is considered to be a
classroom of a church school that enrolls students from many different homes. Thus, students attend the church school by being present in the classroom in their home. This is the arrangement employed
by most church schools with home instruction programs.
is a little disconcerting that the Alabama Department of Education would raise an issue that we thought had been resolved years ago. For almost three decades, parents conducting home instruction in
Alabama have been complying with the compulsory attendance requirements by either the private tutor or church school option. We know of no reason that would justify creating a legal controversy that
would attempt to disrupt a successful educational option and upset the thousands of conscientious church school families across the state. In any event, HSLDA is prepared to defend any of our member
families whose right to teach their children through church school attendance is challenged by state authorities.
Legislation Affecting Homeschoolers Dies
Three bills which would have affected the rights of homeschooling families in Alabama died at the end of the 2010 legislative session in April. These bills are as follows
House Bill 665: This bill would have deleted the provision of state law which requires an attendance officer to give three days’o written
notice to parents before commencing a criminal prosecution for truancy. Passage of this bill would have meant that parents could be prosecuted without any warning whatsoever. Current law provides
parents an opportunity to remedy an attendance problem without going to court.
Home School Legal Defense Association opposed this bill because quite often local school districts question whether a church school enrollment form has been filed by parents conducting home
instruction. When we assist families with this type of problem, we are able to implement any needed corrective action before any truancy charges are filed. Had this bill passed, school districts
would have been authorized to “shoot first and ask questions later.”
Senate Bill 58: To be known as the Tim Tebow Act, this bill would have entitled students taught by a private tutor and those enrolled in a
church school to participate in extracurricular activities at public school or a nonpublic school, if the nonpublic school would have permitted it. HSLDA took a neutral position on this bill.
Senate Bill 347: This bill would have increased the compulsory attendance age from 17 to 18 for all students. If a child turned 18 during the
school year, he or she would have been required to remain enrolled for the rest of the year. Even at the end of the school year, a child over the age of 18 would only have been permitted to withdraw
from school prior to graduation if the parent had consented and the school conducted an exit interview with the parent and child. HSLDA opposed this bill as an unreasonable expansion of state control
Compulsory Attendance Age Increased
May 18, 2009, Governor Bob Riley signed into law Senate Bill 334, raising the compulsory school attendance age for all students in Alabama from 16 to 17 years old. Students of any age who have
completed high school graduation requirements for public schools are eligible for an exemption from further attendance. Presumably, this exemption would include not only public school students but
also students in other educational settings if they were taught the public school curriculum. Alabama recognizes four means of meeting the compulsory attendance requirements: public school, private
school, church school, and private tutor. The statutory law of Alabama contains no express provision for homeschooling.
Sponsored by Senator Arthur Orr (3rd District), the new law affects all students receiving home instruction through enrollment in a church school. These students must continue attending school until
age 17, even after completing their school’s graduation requirements, unless the school adheres to the public school curriculum for completing high school. Home School Legal Defense Association is
not aware of any church school whose course of study for completing high school is the same as that of the public schools.
Prior law provided that a child attending a church school was exempt from the compulsory attendance requirements, so long as he was enrolled in a church school and his parent or guardian filed a
church school enrollment form with the local public school superintendent. This was really no exemption from school attendance because the child had to attend a church school in order to get the
so-called exemption. He was not free to withdraw from school and pursue other interests. Senator Orr’s bill muddies the water even more by inserting language that limits the so-called exemption to a
child “prior to attaining his or her 16th birthday.” The result is that every child 16 and over is no longer entitled to the exemption from compulsory attendance by attending a church school. But
since it never was really an exemption in the first place, the new language appears to have no practical consequence.
new law will go into effect beginning with the upcoming 2009–10 school year.
Favorable Opinion from Attorney General
March 9, 2010, the attorney general of Alabama issued a favorable opinion regarding the compulsory school attendance age for students enrolled in a church school. This affects the vast majority of
families conducting home instruction because they do so through enrollment of their children in a church school.
previously reported in the September/October 2009 issue of The
Home School Court Report, on May 18, 2009, Governor Bob Riley signed into law Senate Bill 334, raising the compulsory school attendance age from 16 to 17 years old. Senator Arthur Orr
(3rd District), the bill’s sponsor, included language intended to exempt students who had been enrolled in a church school prior to their 16th birthday. However, a plain reading of the new law
indicated that the exemption was only available so long as the student’s parent or guardian filed a church school enrollment form with the local public school superintendent. HSLDA reasoned that if
the student had to be enrolled in the church school in order to qualify for the exemption, it was no exemption at all. The student had to stay in school until age 17.
attorney general’s opinion is different from that of HSLDA’s. Without taking into account the statutory language requiring the filing of a church school enrollment form for students who are 16, the
opinion states that students who enroll in the church school prior to age 16 do not have to continue in school beyond that age. Following are excerpts from the opinion:
Accordingly, a church-schooled student is exempt from the mandatory school attendance age of 17—if he or she were previously
attending a church school before attaining his or her 16th birthday. If that prerequisite is met, there is no legal impediment under this section for such a student to withdraw from school prior to
attaining 17 years of age….
Specifically, a student must be attending a church school prior to the student’s 16th birthday before that church-schooled student
can properly withdraw from school before reaching the mandatory attendance age. In other words, one cannot transfer to a church school and then immediately qualify to withdraw from school before one
reaches 17 years of age. The student must have attended the church school before his or her 16th birthday before he or she can then qualify to withdraw under the exception.
While the attorney general’s opinion is great news, HSLDA was concerned that the opinion did not even mention the effect of the language in the statute stating that a 16-year-old church school
student was exempt from attendance, “provided such child complies with enrollment and reporting procedure specified in Section 16-28-7.” This requires the filing of a church school enrollment form
with the local superintendent. Because of this concern, HSLDA Senior Counsel Dewitt Black wrote the Office of the Attorney General and asked that the statutory language requiring the filing of the
church school enrollment form be considered in the opinion. Courts are not bound by state attorney generals' opinions, so we did not want to rely on this opinion and then end up defending our member
families against truancy charges because they did not continue enrollment of their 16-year-old child in a church school. Unfortunately, in a letter dated July 13, 2010, the attorney general declined
our request to consider the other statutory language, stating that only certain public officials could make such a request.
Although we are not completely confident that the courts of Alabama would interpret the new law the same as the attorney general, the attorney general’s opinion is the interpretation that is most
favorable to homeschoolers. For this reason, we are going to support it and will assert it against any truant officer, social worker, or prosecutor who challenges the withdrawal of a 16-year-old
child from a church school. It is unlikely that any truancy charges will be filed against a family relying on this opinion.
exemption for 16-year-olds enrolled in a church school does not extend to children being taught by a private tutor. These children must continue to be instructed until age 17 unless they have
completed high school graduation requirements for public schools.
Social Worker Attempts To Monitor Homeschooling
April of the 2008–2009 school year, a social worker with the Alabama Department of Human Services contacted a Home School Legal Defense Association member family in Roanoke (Randolph County),
insisting that she be permitted to monitor the family’s home instruction program. This contact was prompted by the fact that the member family had recently obtained court-ordered custody of two
children previously enrolled in public school by their birth mother. The social worker insisted that the children be administered standardized achievement tests to determine whether they were
performing at grade level and, in the event they were not, wanted the children to be re-enrolled in public school. If the children had tested to the satisfaction of the social worker, she wanted the
parents to provide a report card on the children every six weeks. Both students were enrolled in the home instruction program of a church school in Alabama.
When the member family contacted HSLDA for assistance, Senior Counsel Dewitt Black wrote a letter to the social worker, informing her that state law governing students in church schools does not
require standardized testing or the routine submission of report cards to state officials. Black also pointed out that even if testing were to indicate that the children were below grade level, this
would be primarily a reflection of the inadequacies of their public school education, not any basis to re-enroll the children in public school. Black stated that since there was no allegation of
abuse or neglect of the children, there was no reason for the social worker to be investigating or monitoring the children’s education.
far, the family has received no further contact from the social worker concerning this unauthorized intrusion into their family life.
HSLDA Social Services Contact Policy
desire to advise our members in every contact with a social worker and/or police officer in investigations resulting from allegations of abuse or neglect. If homeschooling is an issue, we will
represent our member families until the issue is resolved. On Fourth Amendment unreasonable search and seizure issues, HSLDA will advise our members whenever the privacy of their home is violated by
forced or coerced entry for the purpose of an unsubstantiated investigation. HSLDA membership benefits do not extend to court actions resulting from non-homeschooling matters. However, in
circumstances where there is a clear violation of the Fourth Amendment, HSLDA may, as we have done in the past, choose to take the case in an effort to establish legal precedent.
Controversy Over Meaning of “Local”
Home School Legal Defense Association assisted two member families in Dothan at the beginning of the school year when public school officials challenged their children’s enrollment in a church school
outside the city limits. Both families received a letter from Dothan City Schools stating that the church school enrollment forms filed with the superintendent were unacceptable because such schools
were not “local.”
church school is defined in Section 16-28-1 of the Alabama Code as including “only such schools as offer instruction in grade K-12, or any combination thereof including the kindergarten, elementary,
or secondary level and are operated as a ministry of a local church, group of churches, denomination, and/or association of churches on a non-profit basis which do not receive any state or federal
term “local” in Section 16-28-1 is not defined. HSLDA believes the most reasonable interpretation of this statutory language is that the term “local” means that the church, group of churches,
denomination, and/or association of churches is located within the State of Alabama. Otherwise, a family residing in a city or county without a church school would be denied the constitutional right
to choose a faith-based education for their children. Instead, they would be compelled to enroll their children in public school. Such an infringement upon parental rights and religious freedom was
held to be unconstitutional in the case of Pierce v. Society of Sisters, 268 U.S. 510 (1925). In that case the U.S. Supreme Court ruled that the State
of Oregon was prohibited from enforcing a law banning all private education and requiring all children to attend public schools. If all the school districts in Alabama adopted the same policy as that
of Dothan City Schools, it would have the same effect as the Oregon law for many families.
HSLDA Senior Counsel Dewitt Black replied to the public school on behalf of the affected families and explained our legal position on this issue. As a result, Dothan City Schools changed its policy
and recognized the enrollment of the families’ children in church schools outside the city limits.
approximately the past 30 years during which parents have been conducting home instruction through enrollment of their children in church schools in Alabama, parents have been complying with the
compulsory attendance requirements by enrolling their children in church schools not located within the city or county where they reside. HSLDA expects this tradition to continue, as there is no
reason to change an accepted practice that has worked very well for three decades. In any event, HSLDA is prepared to defend any of our member families whose right to enroll their children in a
church school anywhere in Alabama is challenged.
Tuscaloosa County Addresses Issue of “Local” Church
approximately the past 30 years during which parents have been conducting home instruction through enrollment of their children in church schools in Alabama, parents have been complying with the
compulsory attendance requirements by enrolling their children in church schools not necessarily located within the city or county where they reside. Home School Legal Defense Association assisted a
member family in Tuscaloosa County earlier this month when public school officials challenged their daughter’s enrollment in a church school outside the county. The family not only received a letter
from the attendance officer stating that the church school enrollment form filed earlier with the superintendent was unacceptable, but they also received a Notice of Noncompliance with Alabama Compulsory Attendance Law that threatened criminal prosecution in three days.
church school is defined in § 16-28-1 of the Alabama Code as including “only such schools as offer instruction in grade K–12, or any combination thereof including the kindergarten, elementary, or
secondary level and are operated as a ministry of a local church, group of churches, denomination, and/or association of churches on a nonprofit basis which do not receive any state or federal
term “local” in § 16-28-1 is not defined. HSLDA believes the most reasonable interpretation of this statutory language is that the term “local” means within the geographical boundaries of Alabama.
Otherwise, a family residing in a city or county without a church school would be denied the constitutional right to choose a faith-based education for their children. Instead, they would be
compelled to enroll their children in public school. Such an infringement upon parental rights and religious freedom was held to be unconstitutional in the case of Pierce v. Society of Sisters, 268 U.S. 510 (1925). In that case the United States Supreme Court ruled that the State of Oregon was prohibited from enforcing a law
banning all private education and requiring all children to attend public schools. If all the school districts in Alabama adopted the same policy as initially expressed by Tuscaloosa County Schools,
it would have the same effect as the Oregon law for many families.
HSLDA Senior Counsel Dewitt Black contacted the public school on behalf of our member family and explained our legal position on this issue. As a result, the attendance officer sought guidance from
the Alabama State Department of Education, which replied that it was up to each school system to determine what “local” meant. Given this, Tuscaloosa County Schools sent a letter to our member family
telling them that the out-of-county church school they had chosen for their daughter was “valid and in compliance with the Code of Alabama.”
HSLDA is prepared to defend any of our member families whose right to enroll their children in a church school anywhere in Alabama is challenged.
Attendance Officer Threatens New Homeschoolers
family in Escambia County received a threat of prosecution for truancy last fall after they had withdrawn their two children from public school to instruct them at home. Dissatisfied with the
treatment their children were receiving in public school, this family formally withdrew the children on October 23, 2009, but did not immediately enroll them in a church school as an alternative. As
a result, on November 6, two weeks after the children’s withdrawal, the attendance officer for the Escambia County Board of Education sent a notice to the parents that they would be summoned to
appear in juvenile court unless their children were enrolled in school within three days. This threat prompted the family to contact Home School Legal Defense Association for assistance.
HSLDA recommended that the parents immediately enroll their children in a church school and file a church school enrollment form with the local public school superintendent. The parents followed our
advice, and, as a result, the attendance officer decided to take no further action.
avoid this kind of difficulty, HSLDA recommends that families file the church school enrollment form with the local superintendent at the same time they withdraw their children from public
Shelby County Creates Private Tutor Requirements
When a Home School Legal Defense Association member in Shelby County notified school officials that she intended to teach her son as a private tutor this year, she was surprised to learn about all of
the requirements for doing so. According to the student services supervisor at the public school, the mother had to submit a copy of her teaching certificate at the beginning of the school term and
then submit reports at the end of each of the school semesters. These reports were supposed to include daily lesson plans showing content taught, an attendance register, and student grades in each
subject.One of the options for complying with Alabama’s compulsory attendance law is for a child to be instructed by a private tutor. The tutor must be a state-certified teacher, must teach
the subjects taught in the public schools, and must teach at least three hours a day for 140 days each year between the hours of 8:00 a.m. and 4:00 p.m.
HSLDA Senior Counsel Dewitt Black sent a letter to the school official and cited § 16-28-5 of the Alabama Code, which says that the private tutor is required to submit to the local
superintendent “a statement showing the child or children to be instructed, the subjects to be taught and the period of time such instruction is proposed to be given. Such tutor shall keep a register
of work, showing daily the hours used for instruction and the presence or absence of any child being instructed and shall make such reports as the State Board of Education may require.” Section
16-28-8 of the Code also authorizes local public school authorities to require reports. But as Black pointed out, any reports that may be required by the State Board of Education or local authorities
must relate to the register showing the daily hours of instruction and the attendance of the child being taught.
What is abundantly clear is that state law does not require a private tutor to submit a copy of his teaching certificate to the local school officials, does not require that a tutor maintain and
report daily lesson plans, and does not require a tutor to report student grades to public school officials.
School District Adds to Private Tutor Requirements
Earlier this school semester, Home School Legal Defense Association assisted a parent in Birmingham when Shelby County Schools attempted to add to the private tutor requirements of state law. Section
16-28-5 of the Alabama Code states that prior to beginning the instruction, the private tutor must file with the public school superintendent a statement showing the child to be instructed, the
subjects to be taught, and the period of time such instruction is proposed to be given. Although the mother of the child to be taught at home had provided all of the required information to the
school district, she received a letter from a school official requesting that she provide a copy of her teacher’s certificate, an overview of the plan of instruction on the academic concepts that
were to be taught during the school year, and a final grade report for each student with end-of-year grade averages in each subject. Additionally, the school official enclosed a form to be completed
by the private tutor seeking, among other things, the tutor’s Social Security number and indicating that she was also required to keep daily lesson plans.
HSLDA Senior Counsel Dewitt Black sent a letter to the school official on behalf of our member family, informing him that the information already provided by the parent was more than sufficient to
comply with state law. Black further stated that, because of this, the parent was entitled to proceed as a private tutor without providing any additional information or completing the form sent to
HSLDA members in Alabama desiring to serve as private tutors for their children and encountering similar difficulties from public school officials should contact us for assistance.
Compulsory Attendance Age Lowered
This is the second time in three years that the Alabama Legislature has expanded the compulsory attendance law. In 2009, the law was changed to require school attendance until age 17 instead of 16,
although there was an exemption for church school students who had enrolled in the school prior to age 16. The vast majority of parents in Alabama who teach their children at home do so through
enrollment in a church school.On May 8, 2012, Alabama Governor Robert Bentley signed into law Senate Bill 28, thereby lowering the state’s compulsory attendance age from 7 to 6. Home School
Legal Defense Association had urged its members to lobby against the bill because it constituted a further encroachment into the right of parents to direct the education of their children. HSLDA
argued that parents, not the state, are best qualified to determine when their children are ready for formal instruction. In an apparent concession to the concerns of parents, the legislature amended
the bill along the way by inserting a provision that states that a parent of a 6-year-old may opt out of enrolling the child in school until age 7. To do so, the parent must notify the local school
board in writing that the child will not be enrolled until age 7. Senator Priscilla Dunn (19th District) was the sponsor of the bill.
new law goes into effect on August 1, 2012, in time for the upcoming 2012–2013 school year. HSLDA has developed a form for use by our members who wish to notify their local school board that their
6-year-old child will not be enrolled in school this year.
Equal Access Bills Fail
Alabama legislature declined to approve three bills this year intended to permit students being instructed at home to participate in extracurricular activities at public school. Companion bills House
Bill 334 and Senate Bill 329 would have created the “Tim Tebow Act.” This legislation was named after the 2007 winner of the Heisman Trophy, Tim Tebow, a football player for the University of Florida
who had been homeschooled. This legislation would have permitted students taught by a private tutor and those taught at home through enrollment in a church school to participate in extracurricular
activities at public school. It would also have permitted these students to participate in such activities at a non-public school if the non-public school allowed it. Another bill, Senate Bill 20,
would have permitted students taught by private tutors and those enrolled in private and church schools to participate in extracurricular activities at the public school. Under S.B. 20, students
enrolled in private and church schools would have been permitted to participate at public school only if the school where they were enrolled did not offer the same extracurricular activities.
Home School Legal Defense Association took a neutral position on these bills.
Proposed Mobile Daytime Curfew Defeated
its meeting on September 13, 2011, the Mobile City Council voted down a proposed daytime curfew ordinance that would have directly impacted homeschooling families. Council rules require that at least
five of the seven council members vote in favor of this type of ordinance in order for it to pass, but only four did so. This decision by the council was the culmination of more than two months of
highly charged rhetoric between proponents and opponents of the curfew ordinance authored by Mayor Samuel L. Jones.
originally drafted, the ordinance would have created curfew hours for minors between 9:00 a.m. and 2:30 p.m. on weekdays when the public schools were in session. A minor was defined as “any person 17
years of age and under, who has not been emancipated under Alabama law.” But Alabama’s compulsory school attendance law only extends to age 17 (16 for children in church schools), so the proposed
curfew ordinance would have prohibited persons who were not subject to the compulsory attendance law from being in public places during school hours.
an apparent effort to accommodate the varying schedules of students receiving home instruction from their parents, a “home-schooled minor” was defined in the original proposal as “a child who has
been issued a certificate of exemption by the Superintendent of the Mobile County School System or from the Superintendent of an applicable city school system.” A homeschool student with such a
certificate would have been permitted to be in a public place during curfew hours with the consent of the student’s parent or guardian. However, with no specifications in the ordinance for who was
entitled to the certificate of exemption, the superintendent would have been free to exercise his or her sole discretion in granting or denying the exemption.
response to the outcry by home educators and letters from Home School Legal Defense Association and the Southeast Law Institute in Birmingham, Mayor Jones revised the proposed ordinance to align the
age of minors to be affected by the curfew with state compulsory attendance law. Jones also deleted the provision for issuance of a certificate of exemption for homeschoolers by the local
superintendent. In spite of these changes, homeschoolers continued to oppose any form of curfew that would have restricted the freedom of citizens to be in public places during the daytime. Even with
the improved language, law-abiding minors could still have been stopped, questioned by police, and required to provide proof that they were not in violation of the ordinance.
Thanks to all who fought in this battle to preserve the civil liberties of families in Mobile.
Proposed Rules and
It’s time to rally in defense of homeschooling.
Senior Counsel Dee Black answers questions and assists members with legal issues. He and his wife homeschooled their children.
Read more >>
Dear HSLDA Members and Friends:
Many of you have contacted us about the
proposed “Rules and Regulations for Private Schools and Church Schools in Alabama” dated July 9, 2013. The Alabama State Department of Education drafted this document and discussed it at a meeting on
July 11 with representatives of nonpublic schools.
If this document were adopted and implemented, the State Department of Education would begin to regulate church schools for the first time in state
history. Among other things, church schools would be required to apply for a “Certificate of Exemption” and pay a $500 fee every three years in order to maintain their exempt status.
Further, in order to comply with the compulsory attendance law, a student receiving home instruction through a church school covering would be required to enroll in a school that held a Certificate
of Exemption issued by the State Department of Education.
After we obtained a copy of the proposed
rules and regulations last Friday, I prepared a letter to the State Superintendent of Education, Dr. Thomas R. Bice, stating our objections to them and our intent to defend our member families from
this overreach of governmental authority. However, before my letter went out, we were notified that Dr. Bice was backing off from his effort to regulate church schools through implementation of the
rules and regulations. In a memo issued Friday, Dr. Bice stated that he had made this decision after meeting with the governor. But this matter is not over. What is clear from Dr. Bice’s memo is
that the State Department of Education intends to review existing statutory law and make recommended changes to the legislature for 2014.
You may read Dr. Bice’s memoonline.
This is certainly a time for home educators
to come together and support the state homeschool organization, CHEF of Alabama. To learn more about it and join, visit their website. We have been working closely with our friends at CHEF of Alabama since its founding in 1988. The homeschool community in
Alabama must be strong and organized to turn back the state’s efforts to regulate church schools.
We will keep you advised of any further
efforts of the State Department of Education to restrict your homeschooling freedoms. In the meantime, we encourage you to contact your state
representative and state senator and express your opposition to any change in current law.
Very truly yours,
Dewitt T. Black, III
HSLDA Senior Counsel
P.S. We greatly value you and your
support—it is a privilege to serve you. Thank you for all you do for freedom! If you or someone you know is not a member of HSLDA, will you consider taking a moment today to join or recommend
us? Your support enables us to defend individual families threatened by government officials and protect homeschooling freedom for
all. Join now >>