Can Tennessee make homeschooled kids take the TCAP and other state tests?

Subject

Opinion No. 11-44, Requiring Home School Students to Take TCAP and Other Examinations, May 18, 2011

Plain-English summary

Tennessee allows two flavors of home education. Subsection (a)(2) of Tenn. Code Ann. § 49-6-3050 covers parents who associate with a church-related school for purposes of home instruction; their children take standardized achievement tests at the same time as the church school's regular day students and take academic assessments in Grades 9-12. Subsection (b) covers parents who run an independent home school, and their kids take the same examinations administered to public-school students within the same LEA in Grades 5, 7, and 9.

Senator Mike Bell asked whether the state could still require TCAP, Gateway, and End of Course testing in light of a No Child Left Behind clause, 20 U.S.C. § 7886(b), that says nothing in the federal Act "shall be construed to affect a home school" and that no homeschooled student "shall be required to participate in any assessment referenced in this Act."

The AG saw a tension in that subsection. The first clause says the Act doesn't affect home schools; the last clause says no homeschooled student can be required to take an assessment "referenced in" the Act. Read maximally, the last clause could wipe out preexisting state assessment regimes whenever they overlap with categories Congress mentioned (annual reading/math assessments, science in 3-5/6-9/10-12, etc.) and that would itself "affect" home schools, contrary to the first clause. The AG resolved the conflict by reading the federal statute to bar only assessments "designed or implemented for the purpose of complying with the ESEA," not pre-existing state assessments like TCAP that simply overlap categorically.

The result: TCAP, Gateway, and End of Course examinations stay required for homeschoolers in the grade levels prescribed by Tennessee law, because none of them is an ESEA-compliance assessment.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Federal education law has changed significantly since 2011 (the Every Student Succeeds Act of 2015 replaced No Child Left Behind). Anyone reading this opinion for current homeschool testing requirements should consult current law and current Tennessee Department of Education guidance.

Background and statutory framework

State law. Tenn. Code Ann. § 49-6-3050 (the Home School Statute) provides two paths.

• Subsection (a)(2)(A) permits children to be home-educated where parents are "associated with an organization that conducts church-related schools" that "administer standardized achievement tests at the same time the tests are given in their regular day schools." Children educated under this subsection are required to participate in academic assessments in Grades 9-12. Tenn. Code Ann. § 49-6-3050(a)(2)(B).
• Subsection (b) permits parents meeting statutory requirements to home-school independent of a church-related school. Children in this track take the same examinations administered to public-school students in the same Local Education Agency in Grades 5, 7, and 9. Tenn. Code Ann. § 49-6-3050(b)(5)(A).

Federal law. The relevant NCLB clause, 20 U.S.C. § 7886(b), reads:

Nothing in this Act shall be construed to affect a home school, whether or not a home school is treated as a home school or a private school under State law, nor shall any student schooled at home be required to participate in any assessment referenced in this Act.

The ESEA "references" many categories of assessments: annual math and reading/language arts assessments, science assessments at least once in grades 3-5, 6-9, and 10-12, the National Assessment of Educational Progress, screening assessments, school and system needs assessments, teacher assessments, and English-proficiency assessments.

The conflict the AG saw. Reading the last clause of § 7886(b) at full breadth would mean state assessments overlapping with those federal categories couldn't be required of homeschoolers, even if the state assessments predated NCLB and were not built for federal compliance. That would itself "affect" home schools in tension with the first clause.

The resolution. The AG turned to legislative history and the broader statutory scheme. 20 U.S.C. § 7886(c) prohibits "any Federal control over any aspect of any private, religious, or home school." The House committee report on H.R. 1 (Rept. 107-63) stated that NCLB's requirements "do not apply to home schools." Read together, the AG concluded that Congress meant to prevent federal control over home schools through the ESEA, not to displace pre-existing state regulation of home education. The last clause of § 7886(b), the AG said, "is most reasonably construed as prohibiting the State from requiring home school students to participate in assessments designed or implemented for the purpose of complying with the ESEA." TCAP is not one of those, predating NCLB and not structured identically to ESEA-referenced assessments.

Common questions

Are TCAP and the other state tests "referenced in" the ESEA?

The AG concluded they were not. TCAP existed before NCLB. Its data are used to measure Adequate Yearly Progress under federal law, but the test itself is not directly referenced in the federal statute, and its structure does not mirror the federally referenced assessments.

Does this opinion apply to both flavors of Tennessee home schooling?

Yes. The AG noted that NCLB's protection of "home schools" applies "whether or not a home school is treated as a home school or a private school under State law." Both the church-related-school track under § 49-6-3050(a) and the independent home-school track under § 49-6-3050(b) get the same federal treatment.

Can the state require homeschoolers to take a brand-new test designed for ESEA reporting?

Per this opinion, no. If a new state assessment were "designed or implemented for the purpose of complying with the ESEA," it would fall within the federal prohibition, and homeschoolers could not be required to participate.

What grades trigger the state's testing requirement?

Under § 49-6-3050(b)(5)(A), independent home-school students in Grades 5, 7, and 9 took the same tests as their LEA's public-school students. Under § 49-6-3050(a)(2)(B), children associated with a church-related school took academic assessments in Grades 9-12. Specific tests and grade levels can change with statutory amendments or department of education rules; verify current requirements before relying on this list.

Did the AG say anything about constitutional challenges to homeschool testing?

Not in this opinion. The question was statutory, whether NCLB preempts state assessment requirements for homeschoolers. The AG did note in passing that Crites v. Smith observes the government has "the power to see that the children of its citizens receive an education according to reasonable minimum standards," but did not analyze any First Amendment or parental-rights challenge.

Citations

• Tenn. Code Ann. § 49-50-801; Tenn. Code Ann. § 49-6-3050(a)(2)(A)-(B), (b)(5)(A)
• 20 U.S.C. §§ 6301 et seq.; 20 U.S.C. § 7886(b), (c)
• Anderson v. Anderson, 56 S.W.3d 5 (Tenn. Ct. App. 1999); Crites v. Smith, 826 S.W.2d 459 (Tenn. Ct. App. 1991)
• Fullenkamp v. Veneman, 383 F.3d 478 (6th Cir. 2004); United States v. Choice, 201 F.3d 837 (6th Cir. 2000)
• Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002); Robinson v. Shell Oil Co., 519 U.S. 337 (1997); United States v. Ninety-Three Firearms, 330 F.3d 414 (6th Cir. 2003)
• House Rept. 107-63, 107th Cong., 1st Sess. (committee report on H.R. 1)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-044.pdf

Original opinion text

May 18, 2011
Opinion No. 11-44
Requiring Home School Students to Take TCAP and Other Examinations

QUESTION

Can Tennessee require home school students authorized pursuant to Tenn. Code Ann. §§ 49-50-801, 49-6-3050, or other such sections, to take TCAP, Gateway, End of Course, and other such examinations?

OPINION

The State of Tennessee can require home educated students whose education outside of public schools is authorized by Tenn. Code Ann. § 49-6-3050 to participate in assessments or examinations such as the current TCAP or End of Course assessments or their successors, to the extent those assessments are not designed or implemented for the purpose of complying with the Elementary and Secondary Education Act, 20 U.S.C. §§ 6301 et seq.

ANALYSIS

Existing Assessments of Home School Students

As an exception to the general rule compelling attendance of school age children in a duly established public school, the State of Tennessee permits parents to educate their children at home, subject to certain requirements. Tenn. Code Ann. § 49-6-3050 (2011); Anderson v. Anderson, 56 S.W.3d 5, 7 n.1 (Tenn. Ct. App. 1999).

While allowing home school children to be educated outside the public school system, the State retains the authority to regulate the education of those students whose parents choose home school. See Crites v. Smith, 826 S.W.2d at 466-67 (noting, in reference to home education, that "The government has the power to see that the children of its citizens receive an education according to reasonable minimum standards from instructors having minimum qualifications.").

The State permits the home education of children under one of two frameworks created in Tenn. Code Ann. § 49-6-3050 (the "Home School Statute"). First, the Home School Statute permits students to be educated in home schools where the parents are "associated with an organization that conducts church-related schools, as defined by § 49-50-801, that are supervised by the organization through the director of schools of the organization's department of education, and that administer standardized achievement tests at the same time the tests are given in their regular day schools." Tenn. Code Ann. § 49-6-3050(a)(2)(A) (2011). Children educated under this subsection of the Home School Statute are required to participate in academic assessments in Grades 9-12. Tenn. Code Ann. § 49-6-3050(a)(2)(B) (2011).

Alternatively, subsection (b) of the Home School Statute permits parents who meet statutory requirements to conduct home school for their children independent of a church-related school. Children educated under this subsection are required to take the same examinations administered to public school students within the same Local Education Agency ("LEA") in grades 5, 7, and 9. Tenn. Code Ann. § 49-6-3050(b)(5)(A) (2011).

Potential Federal Preemption of State Home School Assessments

The opinion request asks whether The Elementary and Secondary Education Act, as amended by the No Child Left Behind Act of 2001 (the "ESEA"), 20 U.S.C. §§ 6301 et seq., may prohibit the State from requiring home school students to participate in certain academic assessments.

While the relevant language in the ESEA, as amended, is not clear, we believe that a court would likely find that the ESEA does not preclude the State of Tennessee from requiring home school children to participate in existing academic assessments, and that the State may require new assessments to the extent those assessments are not designed or implemented for the purpose of complying with the ESEA.

The No Child Left Behind amendment to the ESEA provides, in relevant part, that:

"Nothing in this Act [20 USCS §§ 6301 et seq.] shall be construed to affect a home school, whether or not a home school is treated as a home school or a private school under State law, nor shall any student schooled at home be required to participate in any assessment referenced in this Act [20 USCS §§ 6301 et seq.]."

20 U.S.C. § 7886(b) (2011).

The final clause of subsection 7886(b) provides that a state cannot require home school students to participate in assessments "referenced in" the ESEA. A number of different types of assessments are "referenced in" the ESEA, including, but not limited to: Annual assessments in Math and Reading/Language Arts; Science assessments at least once in grades 3-5, 6-9, and 10-12; National Assessment of Education and Progress; Screening assessments for preschool students at risk for reading failure; School and system needs assessments; Teacher assessments; and assessments of English proficiency. See 20 U.S.C. §§ 6301 et seq.

To the extent that the assessments that are the subject of your question, TCAP, Gateway, End of Course, and other such examinations, fall within the scope of the assessments referenced in the ESEA, the final clause of subsection 7886(b) would seem to prohibit the State from requiring that home school students participate in them. The State law requirement that home school students participate in all of these examinations, however, existed prior to the passage of subsection 7886(b). If the ESEA is construed to prohibit pre-existing examinations, then the ESEA would in fact be "affecting" home school students contrary to the first clause of subsection 7886(b).

Accordingly, the language of 20 U.S.C. § 7886(b) contains an internal conflict, and Congressional intent regarding the issue of pre-existing assessments of home school students is unclear. If Congress intended the final clause of subsection 7886(b) to prohibit pre-existing home school assessments to the extent those assessments overlap with the type of assessments "referenced in" the ESEA, that outcome would certainly "affect" home schools, contrary to the language of the first clause of subsection 7886(b).

Because the plain meaning of the text of subsection 7886(b) is ambiguous, a proper construction of the statute requires resort to other methods of ascertaining Congressional intent, including examining the context of the full statutory scheme and the legislative history. See Fullenkamp v. Veneman, 383 F.3d 478, 483 (6th Cir. 2004) ("the structure and language of the statute as a whole can aid in interpreting the plain meaning and legislative history can be looked to if the statutory language is unclear.") (citing United States v. Choice, 201 F.3d 837, 841 (6th Cir. 2000)).

In light of the overall context of the No Child Left Behind amendment to the ESEA and the legislative history surrounding the language of section 7886, Congress intended to preclude imposition of federal control over home schools through the ESEA. In keeping with that intent, and considering the limiting language in the first clause of subsection 7886(b), it appears that Congress did not intend to displace existing State regulation of home education, including assessment systems, and that the State retains the authority to require assessments of home school students' academic progress. The final clause of subsection 7886(b), then, is most reasonably construed as prohibiting the State from requiring home school students to participate in assessments designed or implemented for the purpose of complying with the ESEA. Thus, the State retains the authority to require home school students to participate in assessments not designed or implemented for the purpose of complying with the ESEA.

Accordingly, Tennessee can require home school students authorized pursuant to Tenn. Code Ann. §§ 49-50-801, 49-6-3050, or other such sections, to take TCAP, Gateway, End of Course, and other such examinations that were not designed or implemented for the purpose of complying with the ESEA.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

ADAM B. FUTRELL
Assistant Attorney General

Requested by:
The Honorable Mike Bell
Senator
302 War Memorial Building
Nashville, TN 37243

Footnotes:

1 In construing federal statutes, "the first step is to determine whether the language at issue has a plain and unambiguous meaning." Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). To determine whether a statute offers a plain meaning, we examine the language and design of the statute as a whole. United States v. Ninety-Three Firearms, 330 F.3d 414, 420 (6th Cir. 2003). Where statutory language is unambiguous and the "statutory scheme is coherent and consistent," this ends the inquiry. Barnhart, 534 U.S. at 450. Where, on the contrary, statutory language is ambiguous, other tools, such as the legislative history, may be consulted. Ninety-Three Firearms, 330 F.3d at 420.

2 See 20 U.S.C. § 7886(c) (2011) ("Nothing in this Act [20 U.S.C. §§ 6301 et seq.] shall be construed to permit, allow, encourage, or authorize any Federal control over any aspect of any private, religious, or home school, whether or not a home school is treated as a private school or home school or under State law."); see also U.S. House of Representatives, Report of the Committee on Education and the Workforce on H.R. 1, Rept. 107-63 (107th Congress, 1st Session) (noting that "Earlier this year, the Committee heard from many organizations representing private schools and home schools who expressed concerns that the bill be clear that its requirements should not apply to home schools, nor should the requirements apply to private schools if private schools do not receive ESEA funds or services. Accordingly, the Committee has made absolutely clear that the requirements do not apply to home schools nor to private schools that do not receive ESEA funds or services.").

3 This analysis applies equally to all Tennessee students educated in the home, whether pursuant to Tenn. Code Ann. § 49-6-3050(a)(2)(A) or § 49-6-3050(b). The ESEA provisions prohibiting federal control over "home schools" apply "whether or not a home school is treated as a home school or a private school under State law." 20 U.S.C. § 7886(b), (c) (2011).

4 It should be noted that under any construction of the final clause of subsection 7886(b), the current TCAP assessment regime is not likely to be construed as an assessment "referenced in" the ESEA, and consequently forbidden to home school students. Although TCAP assessment data are utilized to track Adequate Yearly Progress under the ESEA, the TCAP assessments themselves are not directly "referenced in" the ESEA, nor are the TCAP assessments or the End of Course evaluations structured identically to those assessments "referenced in" the ESEA. Finally, the TCAP assessment regime existed prior to the No Child Left Behind amendment to the ESEA, and the TCAP assessments were not designed or implemented for the purpose of compliance with the ESEA.