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Should home-schooled have access to public school programs?

By Sherry F. Colb
FindLawexternal link columnist
Special to CNN.com


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(FindLaw) -- A growing number of parents in the United States are home-schooling their children, as an alternative to sending them to public or private schools. For a variety of reasons, these parents believe that they can provide an equal or superior educational experience at home.

Yet, parents who home-school their children (whom I will call "home-schoolers") have begun to recognize the benefits of group after-school activities. And increasingly, they have become interested in taking advantage of extracurricular activities offered to children enrolled at public schools.

States, and individual districts within states, are split on the question of whether to admit home-schooled children into activities, such as sports teams, at schools that they do not attend. Some places give home-schooled children this option, while others do not.

The debate on the subject of access raises important questions about the meaning of a public school education, for those who opt in as well as for those who do not.

Taxes as tuition

One argument that home-schoolers make in favor of access to extracurricular offerings is that they pay taxes that finance the public school enterprise. Therefore, they claim, they are entitled to take advantage of the school's offerings to the extent that they and their children are interested in doing so.

They say, further, that their decision to educate their children at home saves public schools money. Paying to support the public schools, they explain, provides a free benefit to the enrolled students -- funds for education without the expense of having to teach an additional student.

They reason that admitting home-schooleed children into extracurricular activities providing one small part of the complete benefit package to which the children are entitiled because of the local and state taxes their parents pay.

This argument may sound persuasive, but it is based on a faulty premise about a taxpayer's entitlements. Paying taxes is not the equivalent of paying tuition for public school. If it were, then people who have no children, or whose children are grown, would not have any obligation or reason to pay. Yet we all pay taxes, regardless of whether we have children and of how many we have.

The reason that governments and taxpayers fund public schools is that every person living in our society benefits the next generation that is educated and well-socialized. The people in public school are part of the general population that will be voting and running this country down the road.

Thus, though the children themselves undoubtedly benefit from going to school, the role of public school in the community's life goes well beyond the provision of benefits to individual students and their families.

By analogy, consider the government funding that goes to pay police officers' salaries. Such money subsidizes a service that we all wish to enjoy -- the reduction of crime and the protection of our communities from destructive and violent behavior. As taxpayers, then, we can legitimately complain when police are not well trained, just as we can all complain when children are not properly educated.

But neither children who attend private or home schools nor private people who hire armed security guards are entitled to negotiate alternative packages for their own education or protection from the government. There is no direct correspondence between payment and services when it comes to taxes.

Another analogy

That being said, however, public schools do provide a benefit to school-age children and the parents who send them there: They educate those children and prepare them for careers without charging a fee.

Home-schoolers who wish to enroll their offspring in extracurricular activities argue that even if they do not have special rights as taxpayers, they do have the more general right to send their children to public school, like everyone else in the community. This claim is a fair one.

If so, home-schoolers ask, why can't they send their children to some limited component of public school and not the entire program? As the home-schoolers suggest, the family that consumes only one portion of what the school has to offer does seem to save the public schools money. And it may seem unfair to permit only all-or-nothing consumption of the public school's benefits.

To provide an analogy, public libraries provide borrowing privileges to all members (and membership is free). Theoretically, then, one person could borrow a large number of books from the library. But that does not preclude another person's borrowing a very small number of books.

Doesn't the greater right to attend public school include the lesser right to participate only in extracurricular activities - as home-schoolers contend?

No. Once again, there is a flawed underlying assumption at work: that public school is an assortment of products that families and their children consume, like a meal offered at a shelter.

This picture of education as a consumption item, however, is a bit like the picture of taxes as tuition. The opportunity to go to public school carries with it both benefits and burdens.

The benefits can include access to teachers, lessons and classrooms. The burdens might encompass the responsibility to attend, to study the mandatory subjects, to complete the assignments, to demonstrate respect for teachers and to become a productive and valuable member of the school community. Those burdens can become difficult to fulfill when a child does not attend school.

A school might legitimately argue that a family should not be able to pick and choose benefits and burdens. Though home-schooling is permissible, partial home-schooling need not be. A school can rightly view as disruptive the menu approach to public school. All of the mandatory curricular offerings are accordingly both available to and required of the attending students. It is the reciprocity component of public school education that gets lost when families opt in for only some of what is offered.

Distinct endeavors

Home-schoolers protest that extracurricular activities are really not an inseparable part of public school education, in the way that reading classes are. After-school programs are simply an opportunity that children have for developing other skills.

This argument may be the strongest home-schoolers can offer, but it is not entirely convincing.

The argument at first seems plausible because extracurriculars are not mandatory, and the students gravitate toward the activities that interest them the most.

If Paul Pupil receives his schooling at home but shows up at P.S. 1 for basketball practice, home-schoolers can argue, he does not generate the message that he lacks respect for the school. Such activities are logically severable from the "schoolday" curriculum.

The U.S. Supreme Court has implied its concurrence with this view in Board of Education of Pottawatomie v. Earlsexternal link, a decision upholding against a Fourth Amendment challenge the drug-testing of all students who participate in extracurricular activities, precisely because such activities are optional and stand outside of the regular curriculum.

The separation, however, is not quite as clear as it might seem. A school can, for example, place conditions -- both positive and negative -- on participation in extracurricular activities. A student might have to maintain a minimum grade point average to join an athletic team, for example. Or she might need to avoid getting into trouble during the day in order to be eligible for particular, or all, after-school activities.

In either case, the school has drawn a direct link between one's performance, behavior and attitude regarding the regular curriculum and one's eligibility for extracurriculars.

The home-schooled student, however, is not well positioned to be judged along these dimensions, because she is not part of the community in which her academics, classroom contributions, and other interactive conduct will be in evidence to the authorities that run the school.

Disrespect for school

To understand further how home-schooled children who participate in extracurricular activities might detract from the atmosphere of a school, consider the reasons people keep their children out of public schools.

One major motivation seems to be the perception, or reality, that the public school in one's area does not have high quality teachers and/or students. Another may be the view that the values embraced by the school and families that enroll their children there, are misguided or evil.

If these beliefs motivate home-schooling, then the presence of home-schooled children after school -- and their "in your face" commitment to avoiding the faculty and students during the day -- can seriously undermine the morale of the children who attend public school. Sending one's children to extracurricular activities alone is a way of saying, "we don't think your school or you have much to offer us, in terms of intelligence or morality, but we like your basketball team, so here we are."

State and district policies

There are states and districts in which home-schooled children have the option of participating in extracurricular activities at public schools. In such places, public schools may choose to create a clearer separation between in-school and after-school activities. They may also limit the curricular or behavioral conditions attached to joining extracurriculars, creating a laissez-faire extracurricular world.

In such a world, participants must observe the rules of the game, compete for competitive positions and conduct themselves in the way they might do in a publicly funded program that has nothing to do with the public school system.

This is perhaps the vision that home-schoolers have of extracurriculars everywhere. For schools that take a different and more holistic approach to education, though, this may represent an unwelcome state of affairs. And it is one that neither taxpayers nor a reciprocity-based public educational system should have to embrace.

Sherry F. Colb, a FindLawexternal link columnist, is a professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark, New Jersey.

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