The Legal Who, What, When and Where of Homeschooling

The Law

You've made the big decision--you've decided to homeschool. Of course you want to do things right. After all, this is your family's future you're planning. By now, you know it's legal. But how exactly do you comply with the law? What does the law say about homeschooling?  The Virginia homeschool law is very precise in most areas. Among other things it defines who can teach at home, what requirements must be fulfilled, when to notify, as well as where a parent can go if he disagrees with a superintendent's decision.

Although the "legalese" can sound very complicated, don't be intimidate--help is available! There are many experienced homeschoolers who can offer encouragement. Local support-group leaders who are familiar with the legal atmosphere in your area can tell you what to expect. The Virginia Homeschool Manual has official copies of the homeschool law and related statutes, Attorney Generals' opinions, and other useful resources. The HEAV office personnel will be glad to answer your questions. And, of course, the Home School Legal Defense Association offers legal defense with advice for its members from the most experienced homeschool attorneys in the nation.

With these things in mind, just take one question at a time, refer to the source material in the Virginia Homeschool Manual (especially references to the statute), and make an informed decision. Do what's right for your family. Here we'll address some of the questions that are asked most often:  

Who is required to attend school?
If your child will be five years old on or before September 30, and has not passed his eighteenth birthday, he must attend school (§ 22.1-254 (A)).

However, your child may be exempted from compulsory school attendance if he is not six on or before September 30, and you notify the school board that you don't want him to attend school until the following year. If, in your opinion as a parent, your child is not mentally, physically, or emotionally prepared to attend school, he may be exempted for that year (§ 22.1-254 (H) (5)).

If you elect to keep your five-year-old at home, you may still teach your child. After all, isn't that what you've been doing all along? It's not necessary to register him as a homeschooler unless he will be six by September 30. (The deadline for homeschool registration is August 15 of the year you plan to teach.) If he is registered as a homeschooled kindergartner, you are not required to have an academic evaluation at the end of kindergarten. You may register him as a kindergartner or first grader when he is six.

What schooling options are available for children?
A parent may 1) send his child to public school, 2) send his child to private, denominational, or parochial school, 3) have his child taught by a tutor or teacher of qualifications approved by the division superintendent, or 4) provide for home education as described in § 22.1-254.1. A child may also be excused from compulsory education because of a religious exemption (§ 22.1- 254(B)(1)). 

The first and second options for education listed above are self-explanatory. The third option, also known as the certified or approved tutor statute, allows a child to be taught in or out of his home by a Virginia-certified teacher (either his parent or another teacher) whose qualifications are approved by the superintendent. None of the requirements of the homeschool statute apply, and any parent who meets the qualification of a certified teacher or approved tutor may teach under this option rather than the homeschool statute (see "Certified-Tutor Provision Clarified" in the Virginia Homeschool Manual).

To qualify under this option, a parent should submit his credentials to the Division of Teacher Education, Certification, and Professional Development of the Department of Education to secure a certificate or letter of eligibility.

If the approved tutor is the parent, the parent simply sends a letter to the division superintendent with a copy of his teacher certification or letter of eligibility and indicates that he is complying with the third option of § 22.1-254 (A). If the parent who is an approved tutor teaches other children, the names of these children should also be listed in the letter. An approved tutor who is not the parent should send a letter with his certification verification and a list of the children being taught.

The fourth option is homeschooling. This is defined as the instruction in the home of a child by his parent, guardian, or other person having control or charge of the child. It is not considered a private, denominational, or parochial school (§ 22.1-254 (A)).

What requirements must be fulfilled in order to homeschool under the homeschool statute?

1) First, you must choose one of the four options.
You may teach at home if a parent (1) has a high school diploma; or (2) is a certified teacher; or (3) has enrolled in a state-approved correspondence course (see correspondence course list); or (4) uses a curriculum which, in the judgment of the division superintendent, includes the standards of learning objectives adopted by the Board of Education for language arts and mathematics, OR provides evidence that the parent is able to provide an adequate education for the child (§ 22.1-254.1 (A)). These four options are listed on a form called "Notice of Intent to Provide Home Instruction." 

2) Then, you must provide proof that you have met the conditions for one of the four options.
Option (1) can be satisfied by attaching a copy of a high school diploma or transcript, or higher degree; option (2) can be satisfied by attaching a certificate or letter of eligibility indicating teacher certification; option (3) can be satisfied by including evidence of enrollment in an approved correspondence course such as a receipt for payment, letter of acceptance, or enrollment contract; and option (4) is satisfied by the approval of the division superintendent.

For the first, second, and fourth options, a description of the curriculum must be included. A brief listing of the subjects to be taught and the titles of the books you plan to use should be sufficient. For option (4) the same description of curriculum can be used, but in language arts and mathematics the description must be detailed enough for the superintendent to determine if the curriculum is consistent with the Standards of Learning (§ 22.1-254.1 (A)). A photocopy of the table of contents or scope and sequence from your language arts and mathematics books should give enough information for the superintendent to make this determination. It is not necessary to provide lesson plans or send your textbooks to the superintendent.

Also under option (4) you may choose to show evidence that you are able to provide an adequate education for your child. In order to fulfill this requirement, you might briefly state that because you are the parent, you know your child best and you are able to determine his academic needs. You might also say that you plan to exercise diligence in teaching your child, using a well-planned curriculum. Although your reasons cannot be judged by the superintendent, he will determine if your statement exhibits a mastery of language, basic grammar, and punctuation.

3) You must submit evidence of academic achievement.
After each year of homeschooling, it is also required that a parent must submit evidence of academic achievement. This evidence must be submitted to the division superintendent by August 1. It may be in the form of a standardized achievement test or an evaluation or assessment (§ 22.1-254.1 (C)) (see Testing and Evaluation on our site or in the Virginia Homeschool Manual).

4) You must comply with immunization requirements.
The homeschooling parent must comply with the immunization requirements in the same manner and to the same extent of a public-school child (§ 22.1-271.4). These records are to be maintained by the parents. Immunization exemptions are available (see "Virginia Immunization Requirements" in the Virginia Law section of the Virginia Homeschool Manual).

Whom do I notify that I plan to homeschool?
If you wish to homeschool under the homeschool statute (§ 22.1-254.1 (B)), you must notify the division superintendent. This can be done by a personal letter that includes evidence of meeting one of the requirements, or by using the "Notice of Intent to Homeschool" form. This form may be obtained from HEAV, our website www.heav.org, the Virginia Homeschool Manual, your local division superintendent, or the State Department of Education. 

Remember to keep copies of all correspondence. You may want to send your "Notice of Intent" by registered mail. It's not necessary to appear in person.

If you homeschool under religious exemption, you may send a letter to the local school board. 

When should I send in my notification?
Under the homeschool statute, the division superintendent must be notified by August 15th.  Parents who move into the school division after August must notify the superintendent of their intent to homeschool as soon as practical and comply with the statute within thirty days of notification (§ 22.1-254.1 (B)). If you decide to homeschool after the deadline, please refer to "You Want to Home School...Now?" in the "Virginia Law" section of the Virginia Homeschool Manual. That article addresses special situations and what you might expect. 

Under religious exemption, there is no deadline for notifying the local school board. 

Where can I go if I disagree with a decision made by the superintendent?
If you disagree with the division superintendent's decision, you may make an appeal to an independent hearing officer within thirty days. Inform your superintendent that you want to request an appeal. (This process is less intimidating for those who have experienced legal counsel.) An independent hearing officer will be chosen from a list maintained by the Executive Secretary of the Supreme Court. After the appeal, the cost of the hearing will be apportioned by the hearing officer according to his findings. (§22.1-254.1(E))

What if I am homeschooling because of sincere religious beliefs?
Most homeschoolers who have religious beliefs are fully accommodated by the homeschool statute, § 22.1-254.1; however, according to § 22.1-254.1 (D), nothing in the homeschool statute shall prohibit a student and his parents from obtaining an exemption from school attendance because of bona fide religious training or belief as referenced in § 22.1-254.1. This statute, known as the "religious exemption statute," states, "A school board shall excuse from attendance at school any pupil who, together with his parents, by reason of bona fide religious training or belief, is conscientiously opposed to attendance at school" (§ 22.1-254(B)(1)). (For a more complete explanation of the terms used in this statute, please refer to the article by Home School Legal Defense entitled "Religious Exemption Demystified" in the Virginia Law section of the Virginia Homeschool Manual .)

Both parents must have personal religious convictions against school attendance. While you may have philosophical, political, or sociological objections, or a personal moral code in opposition to school attendance, this cannot be the basis for a religious exemption. You must be conscientiously opposed to attendance at school because of bona fide religious training or belief in order to homeschool under § 22.1-254(B)(1). This statute cannot be used for any other reason.

Parents homeschooling under religious exemption should be prepared to testify before their local school board concerning their genuine religious beliefs. It is mandatory that parents have strong religious convictions, not just preferences. Because school boards differ in their understanding of the requirements for religious exemption, adequate legal representation is essential. HEAV recommends that every family who desires to homeschool under religious exemption become members of Home School Legal Defense Association before pursuing this option.

Decisions...decisions...decisions
Is your child old enough to attend school under the compulsory attendance law? If your child is five, will you elect to keep him at home? Will you register your five-year-old as a homeschool kindergartner or not? 

How will you educate your child? Public school? Private, denominational, or parochial school? Approved tutor? Or homeschool?

If homeschool is your choice, which condition can you meet? High school diploma or higher degree? Certified teacher? Correspondence course? Curriculum consistent with the SOLs?

Is religious exemption a conviction or a preference? Is it essential to accommodate your religious beliefs? Are you ready to testify before government officials, if necessary?

Yes, the choice to homeschool was your first decision. Now you're faced with choosing curriculum, deciding on teaching methods, developing schedules, determining support-group involvement, and so on; these are all important decisions that must be made, but your most important decision is the one concerning the law - it is foundational to all others. Review your legal options carefully. Understand your choices. Then decide what is right for your family.

* The purpose of this article is to clarify the statutory procedure for beginning to homeschool. This information should not be construed as legal advice. HEAV encourages all homeschoolers to seek legal counsel for specific applications of the law.