For New Laws On Title IV, HEA Programs, Institutional Eligibility and Home Educated Students

In order to help clarify a variety of issues that have resulted from the 1998 Amendments to the Higher Education Act of 1965, I requested from the United States Department of Education the following Q & A regarding institutional eligibility and ability to benefit as relates to home education.

Section One was drafted by Lloyd Horwich, Program Specialist, Office of Student Financial Assistance, Analysis Service, Program Development Division, United States Department of Education. This information was reviewed and approved by Jeff Baker, Director of the Program Development Division, and I have added comments under each question that clarify how each relates specifically to Indiana. Section Two is a letter from me that gives a more exhaustive explanation of home education in Indiana and the way it is treated under the new federal law.

If you have additional questions about this information, please call 317-232-9135. Mr. Horwich will be happy to discuss these materials with you as well. You may contact him at voice 202-708-8242 or fax 202-708-7196.

For purposes of institutional eligibility to participate in Title IV, HEA programs, must a regular student have a diploma from an accredited high school?
The student must have a legally issued diploma according to the State in which the diploma was issued. If, for example, the State authorizes both accredited and non-accredited high schools to issue diplomas, either type is sufficient.

IDOE: Students who are issued a diploma by the administrator (parent or legal guardian) of an Indiana home school possess a legally issued, nonaccredited diploma according to the State of Indiana. Such a legally issued diploma passes the institutional eligibility test to participate in Title IV, HEA programs. Home schools, like all other nonaccredited, nonpublic schools, may legally issue a diploma to students that complete the graduation requirements of that school, as established by that school.

For purposes of institutional eligibility, may an institution admit a home-schooled student as a regular student?
For an institution to admit a home-schooled student -- or any student -- as a regular student without possibly jeopardizing its institutional eligibility, the student must satisfy one of the HEA requirements of 34 CFR 600.4(a)(2); he or she must be considered by the State in which he or she was home-schooled to have received a high school diploma, have received a recognized equivalent of a high school diploma (as defined by 34 CFR 600.2), or be beyond the age of compulsory attendance in the State in which the institution (of higher education) is located.

IDOE: Again, a student who receives a diploma from a home school in Indiana is considered to have received a legal (albeit nonaccredited) diploma, and may be admitted as would any other student with a diploma under the test for institutional eligibility.

For purposes of student eligibility for Title IV, HEA aid, must a student who completed a secondary school education in a home school setting that was treated as a home school or private school under State law also pass an ability-to-benefit test?
No. If the student completed a secondary school education in a home school setting that was treated as a home school or private school under the law of the State in which the student was home-schooled (and is otherwise eligible), the student is eligible for Title IV, HEA aid.

IDOE: Under Indiana law, students who complete a secondary school education in a home school setting, have completed their secondary education in a school that is treated as a private school in the state of Indiana. No additional ability to benefit test is required.

Indiana Department of Education
Center for School Improvement and Performance
Office of Student Services
Room 229, State House
Indianapolis, IN 46204-2798
voice: 317-232-9111 | fax: 317-232-9140
Email: muggle@doe.in.gov

September 27, 1999


To Whom It May Concern:

The legal status and treatment of home schools in Indiana is a hot topic for college admissions and financial aid officers right now, in light of 1998 legislation affecting institutional eligibility and ability to benefit as regards this population. I hope this information is helpful as you consider these issues.

The heart of the questions posed to me since the passage of this new language appears to be whether or not students who are “home schooled” for their high school years have “completed a secondary school education in a home school setting that is treated as a home school or private school under [Indiana] law” (as added by P.L. 105-244, 1998 Amendments to the Higher Education Act of 1965, found at 20 U.S.C. 1091(d)(3). The answer is an unequivocal “yes.”

Let me begin by saying that home education does not exist as a statutory concept in Indiana, and is not defined under current Indiana law as distinct from other varieties of nonpublic, non-accredited schools. This does not mean that parents are not allowed to teach their children at home; rather, it means that parents who do so are the administrators of private schools that are regulated and considered by the state in exactly the same manner as are all other nonaccredited, nonpublic schools.

The Compulsory School Attendance Law (IC 20-8.1-3-34) gives parents the explicit right to decide where their children will be educated and to provide their children with “instruction equivalent to that given in the public schools,” and, under IC 20-8.1-3-17(h)(2), to “begin providing [a child subject to the compulsory school attendance law] with instruction equivalent to that given in the public schools as permitted under IC 20-8.1-3-34,” should that be their choice.

There is no definition of equivalency of instruction for public or private schools, either in Indiana state law or State Board of Education rules. Further, IC 20-8.1-3-17.3(b) specifically states that “a school that is 1)nonpublic; and 2)nonaccredited; and 3)not otherwise approved by the Indiana state board of education [as in the case of such state-run schools as the Schools for the Blind or the Deaf]; is not bound by any requirements set forth in IC 20 or IC 21 with regard to curriculum or the content of educational programs offered by the school.”

In other words, regardless of the physical setting of such schools (including, but not limited to “home schools”) they have complete authority over their curricula and programs and are not subject to regulation or oversight by the State.

Indiana case law has also upheld the right and ability of parents to establish such nonaccredited, private schools for their children. In State v. Peterman, (the first serious state challenge to the Compulsory School Attendance law in Indiana) Clarence Peterman removed his child from the public schools due to a disagreement and retained a teacher to provide instruction to his child. The Appellate Court defined the issue as "what is a private school within the meaning of the statute?" The Court defined a school as "a place where instruction is imparted to the young." The court's definition so clarifies Indiana law that it deserves to be quoted:

"We do not think that the number of persons, whether one or many, makes a place where instruction is imparted any less or more a school. Under a law very similar to ours, the supreme court of Massachusetts has held that the object and purpose of a compulsory education law is that all the children be educated, not that they be educated in any particular way (citing Commonwealth v. Roberts, 159 Mass 372, 34 N.E. 402)"

The court went on to explain that the state's interest in the education of the child was "to secure to the child the opportunity to acquire an education, which the welfare of the child and the best interests of society demand. The results to be obtained, and not the means or manner of obtaining it, was the goal which the lawmakers were attempting to reach."

The court in this case not only clarified the parent's right to establish a private school, but also clearly defined a private school as being "one or many" persons.

There is no administrative law that applies to such schools. It is the policy of the State Department of Education to enforce the law as enacted by the General Assembly.

The State legislature has designed an educational system that generally waives all procedural prerequisites to nonaccredited, private schooling. There are no curricular standards, teacher credentialing requirements, standardized testing of students, certification or licensure requirements of any kind for any nonpublic, nonaccredited school. Again, this includes, but is not limited to, “home schools.”

While different from the traditional public school model, all such schools are, nonetheless, authorized by the General Assembly, recognized by both the State Board of Education and the State Department of Education, and possessed of the authority to determine what and how they will teach, what is required to earn their diplomas, how to assess their students’ work, and how they will determine when and if a diploma has been earned. The State has no statutory or regulatory authority to intrude into this process. Insofar as “quality control” goes, there is absolutely no difference between a transcript or diploma from a “home school” or that granted by any other nonaccredited, private school.

Institutions of higher education considering admission of students from such schools and subsequent financial aid issues, should treat students from such nonaccredited, private schools consistently and equally. To have different standards and different requirements for students who attended such schools based solely on whether the nonaccredited instruction took place around a dining table or in a church facility appears discriminatory.

The legislature has imposed no limit on the parent's ability to choose to home educate in the state of Indiana. Case law has historically supported nonpublic schooling in Indiana and has supported the right of home education to exist. The Indiana State Department of Education enforces the existing laws of the State of Indiana to allow the free exercise of the parental right to choose the form of their child's education.

Indiana students who complete their secondary education in a home-based school have the same legal standing as students completing a secondary school education in any other school. In short, students who complete a secondary school education in a home school setting, as determined by the parents/administrators of the school, have completed a secondary school education in a school that is treated as a private school under State law.


cc: Gaylon Nettles
State Attendance Officer

Kevin McDowell
IDOE General Counsel