Jan 31

H B 947: Home School Students Participation in High School Athletics

HB 947 would allow home school students the opportunity to play high school athletics at their local high school even though they are not enrolled in the public school. Many are calling this the “Tim Tebow Bill” because of the success of the former Heisman Trophy winner and current Denver Bronco quarterback who was home schooled.

Tebow, while home schooled, played his sophomore year with a private school team. However, he played tight end on offense. He wanted to be a quarterback in a different system. The Tebow family lived in Duval County, Florida, but the school he wanted to play for was Nease High School, located in St. John’s County in Jacksonville. To be able to play there, Tebow and his mother moved to an apartment in Jacksonville while the remainder of his family continued to be home schooled in Duval County.

In a recent editorial on Channel 12 in Richmond, Dr. William Bosher, former State Superintendent for Public Instruction, stated that high athletics under the Virginia High School League (VHSL) has never been about free agency. Allowing students who are home schooled to participate in high school athletics could change the entire structure of high school athletics.

Since Virginia has essentially “de-regulated” home school education, and home school students can follow most any curriculum they want, it is possible that many excellent athletes will suddenly become home schooled and move into other school zones where they want to play. This would, in essence, create a free agency system that might even lead to recruiting at the high school level.

Every student in Virginia has a constitutional right to a free elementary and secondary education. That right is granted in Virginia through the operation of a strong public school system that is driven by standards, individual student accountability, school accountability, and school division accountability. Strong public schools have been supported by the General Assembly, the Virginia Board of Education, and every Governor. Thus, every home schooled student has a constitutional right to attend a public school. When such students and their parents choose not to attend, they assume responsibility for their education. They have been given the right to home school their children under lower standards than those required for public school students (see § 22.1-254.1, Code of Virginia). Parents can home school as long as they have a high school diploma. Teachers in public schools are required by law to have significantly higher academic standards. For accountability of home schooled students, the home school law directs a division superintendent to accept “an evaluation letter from a person licensed to teach in any state, or a person with a master’s degree or higher in an academic discipline, having knowledge of the child’s academic progress, stating that the child is achieving an adequate level of educational growth and progress” (§ 22.1-254.1 C(ii)(a), Code of Virginia). There are no requirements for testing or even that the person writing the letter has ever taught the student. Thus, there is no way to be sure that home school students meet the same academic standards as required by public school students.

Some home school advocates argue for home schooled students to be involved in high school athletics because they have a constitutional right to participation. While home school students do have a constitutional right to an education by attending a public school, they have no constitutional right to participation in athletics or extra-curricular activities. Even students enrolled in public schools do not have a constitutional right to participate in athletics or extra-curricular activities (see Vernonia v. Acton, 515 U.S. 646 and Pottawatomie County v. Earls, 536 U.S. 822). In Vernonia, the United States Supreme Court allowed the random drug testing of student athletes and in Pottawatomie, the Supreme Court allowed the random drug testing of any student representing the school in an extra-curricular competitive activity. The Supreme Court would never allow the random drug testing of student-athletes if participating in high school athletics was a constitutional right. Of course, there are many other courts that have ruled there was no constitutional right to home school student participation on high school athletic teams (see Sanders v. Louisiana High School Athletic Association, La.App., 242 So.2d 19, Bradstreet v. Sobol, 650 N.Y.S.2d 402, 403 [A.D.3 Dept 1996], Kaptein v. Conrad School District, 931 P.2nd 1311, 1317 [Mont 1997]).

There are also issues related to safety and discipline. School board policy establishes standards, and administrators work hard to apply the rules evenly and fairly. If a public school student-athlete violates school board policy during the school day or on the playing field, those actions will have consequences which may include suspension from participation in athletics. Home schooled students would not be subject to discipline based on in-school behavior. A public school student-athlete who bullies or harasses another student may be suspended from both school and extra-curricular activities. There is no similar standard of conduct for home school students which can be verified by principals.

School athletic teams play a key role in creating a positive school culture. The home schooled student is not part of that culture. Athletic teams represent the school. Athletes on the team should be enrolled in the school. Home schooled students are not part of the traditional school environment. They would simply show up to practice, play, and go home. They have no vested interest in the school they represent. If they had a vested interest in the school, they would be attending the school.

Potential liability issues also arise since the home school player would not be a bona fide student at the school. There are so many issues which could emerge – the unintended consequences, so to speak. For example, what if a home schooled student participating in high school athletics shows up early for practice while public school students are still in school and an altercation occurs because the home school student was not under some type of supervision? What is the school division liability? What if a home school student participating in athletics has an altercation with another student on his way to practice? Can the school discipline the home school athlete? Under Virginia law, school boards may establish policy to discipline students, including their conduct going to and returning from school (§ 22.1-78, Code of Virginia). However, there is no reference in that law to a non-public school student who is just participating in athletics. Some may say that the power to discipline is assumed, but it is never good advice to assume anything in legal matters.

One of the consequences for home schooled students is that they cannot participate in extracurricular activities at the public school. They can still develop their individual skills through recreation programs, Young Men’s Christian Association (YMCA) programs, club teams, Amateur Athletic Union (AAU) teams, and, in some cases, even home schooled teams.

For most high school athletic teams, there is competition to make the team. Even one home schooled student on the team takes a position away from a public school student who is committed to public education. Most parents would be upset if their child was bumped from the team or sees little playing time because a home school student(s) is on the team. What if your son or daughter was the public school student cut from the team so that a home schooled student could play – how fair would you consider that to be?

Public schools are one of the few areas that level the playing field for disadvantaged students. This proposed legislation undermines the very sense of fairness and equality that public schools are supporting. If a non-student makes the team, a student attending the school will not. There are only so many seats on the bench.