School Districts May Not Evaluate without Parental Consent

HSLDA -- October 23, 2006

Federal Regulation: School Districts May Not Evaluate Homeschoolers without Parental Consent

On October 13, 2006, the United States Department of Education placed regulations into effect that explicitly deny school districts any ability under the Individuals with Disabilities in Education Act (IDEA) to override a parent’s refusal to have their homeschooled child evaluated for disabilities.

Over the last several years, Home School Legal Defense Association has seen an increase in such cases where the homeschooling parent denies consent for an evaluation and the school district files a due process procedure against the family.

The new regulations are in part a result of HSLDA’s victory in the case Fitzgerald v. Camdenton R-III School District (2006), in which the court ruled that a school district did not have the right to override a parent’s consent. “Where a home-schooled child’s parents refuse consent [for an evaluation], privately educate the child, and expressly waive all benefits under the IDEA, an evaluation would have no purpose. . . . [A] district may not force an evaluation in this case.”

After the Fitzgerald decision, HSLDA members all over the country attended meetings and sent in comments regarding the Department of Education’s proposed regulations while HSLDA lobbied the Department directly for change. The Fitzgerald case, in conjunction with the comments of HSLDA and our members, has resulted in an expansion of the language that was already in the comments on the proposed IDEA regulations. Now, a completely new section in the IDEA regulations provides protection for parents who homeschool. The new regulations state that if a homeschooling parent does not provide consent for any initial evaluation or reevaluation of their child, the school district cannot even initiate a due process procedure to override that consent.

“Our hard-won victory in Fitzgerald brought this matter to the attention of the Department of Education,” said HSLDA Litigation Attorney Jim Mason. “Even the DOE acknowledged that this has always been the intent of the law. Now they say it clearly.”