The History of Home Education in Texas

exerpted from Handbook for Texas Home Schoolers © 2010

Home education has been an accepted method of education since the days of the Texas Republic. The state department of education, the Texas Education Agency (TEA), had never attempted to regulate, oppose, or discourage home schooling in Texas until 1981. In that year, the TEA issued a policy that stated, “Educating a child at home is not the same as private school instruction, and therefore, not an acceptable substitute.”

The matter did not come into open conflict until the much publicized case of the State v. Short, (Dallas County, 1982). In this case, Richardson ISD took the Short family to court for educating their daughters at home. Dave Haigler, the lawyer for the Shorts, was interviewed on the CBS evening news after the judge had ruled against the family; however, the next morning, the justice of the peace reversed himself and ruled in favor of the Shorts. The legal argument of vagueness of the law became the standard defense used by home schoolers all over the country.

As a direct result of the change in the TEA’s policy, over 100 families were prosecuted by school districts for violation of the compulsory attendance law. In those days, the attitude of most home school families in Texas was one of fear. At home school meetings, people did not give out their addresses or phone numbers and the thought of a list of the group getting out to the public created much anxiety and apprehension.

In March 1985, attorney Shelby Sharpe, along with several home school families and curriculum suppliers, filed a lawsuit against all the school districts in Texas on behalf of all home educators in Texas. In what became known as the Leeper vs. Arlington class action suit (Leeper v. Arlington I.S.D. No. 17-88761-85), home educators asked the court to give a declaratory judgment on the question of whether or not the legislature had intended home schools to be private schools when they enacted the compulsory attendance statute in 1915. The basic question was, are home schools private schools?

In the Leeper court proceedings, one point that was established and never challenged by the state was that in the early 1900s, when the compulsory attendance law was passed by the legislature, over 70 percent of the students in Texas were being taught at home. Lawmakers would most certainly not have enacted a law that would have had over half of the population in violation of it. It seems that home education was the norm in Texas even in the early 1900s.

While the Leeper case was pending, Texas Attorney General Jim Mattox was seeking to negotiate with the lead attorney in the case, Shelby Sharpe, to get him to drop the suit in exchange for regulations or rules passed by the TEA. The case was not dropped. Finally, the attorney general encouraged the TEA and the State Board of Education (SBOE) to set up a new accreditation agency within the TEA. This agency would accredit private schools. The purpose of this was to settle the issue of what is a private school by defining it as one accredited by this body.

The SBOE held a public hearing on this issue in April of 1986 in Austin. To the shock of the TEA and SBOE, approximately 6,000 people appeared to testify and protest what they perceived to be government intrusion into private education. This rally came to be known as the “Austin TEA Party.” Several legislators testified that neither the TEA nor the SBOE had any authority to deal with private education because the Texas Legislature had not given them that authority by statute. The Texas Education Code applies only to public education. The SBOE finally passed a resolution asking the Texas Legislature to define private schools or give them the authority to do so. The legislature refused to do either.

In January of 1987, the class action lawsuit finally came to trial. The trial lasted for a week and a half and included expert testimony from such national figures as R. J. Rushdoony, Raymond Moore, and Sam Blumenfeld. On April 13, 1987, presiding Judge Charles J. Murray issued a decision (binding on all 1,100 school districts) which was a complete vindication of the rights of parents to educate their children at home in the State of Texas. The judge concluded that:

“A school-age child residing in the State of Texas who is being educated in a bona fide manner by the parents, or those standing in parental authority, in or through the child’s home using a curriculum, consisting of books, workbooks, other written materials, including that which appears on an electronic screen of either a computer or video tape monitor, or any combination of the preceding from either (1) a private or parochial school which exists apart from the child’s home or (2) which has been developed or obtained from any source, said curriculum designed to meet basic education goals of reading, spelling, grammar, mathematics and a study of good citizenship, is in attendance upon a private or parochial school within the meaning of Section 25.086(a)(1) of the Texas Education Code and exempt from the requirements of compulsory attendance at a public school.”

The case was appealed by the state, and on November 23, 1991, the Court of Appeals, Second District, upheld the lower court’s ruling completely and without changes. The state again appealed, and in June of 1994, the Texas Supreme Court, in a unanimous 9-0 decision {Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994)}, confirmed the lower court’s decision.

As a result, the only requirements for home schooling to be legal are that (1) the instruction be bona fide (i.e. not a sham); (2) the curriculum be in visual form (e.g. books, workbooks, video monitor); and (3) the curriculum include the basic subjects of reading, spelling, grammar, mathematics, and good citizenship. Parents may obtain curriculum materials from outside sources or develop their own. They may also send their children into the home of another parent for instruction or have a tutor come into the home for all or part of the instruction.

The Leeper decision recognizes the right of these officials to make “reasonable inquiry” to determine whether or not a school-age child is in attendance upon a private or parochial school. Without the ability to make reasonable inquiry, school attendance officials could not carry out their duty as required by law. Since 1995, the commmissioner of education has given direction to school districts on how to apply this ruling. (See the current letter.)