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LEGISLATION PREVIOUSLY BEFORE THE 109TH CONGRESS


Family Educational Rights and Privacy Act (FERPA)
Hope Plus Scholarship Act
Family Education Freedom Act
Fed Up Higher Education Technical Amendments
College Quality, Affordability, and Diversity Improvement Act
Lifetime of Education Opportunities Act
College Access and Opportunities Act
College Access and Opportunities Act - H.R. 507
Job Training Improvement Act
College Opportunity For All Act
Workforce Investment Act Amendments

 

1. FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT, otherwise known as FERPA:

H. R. 130  Introduced January 4, 2005 by Minnesota Congressman Mark Kennedy

Title: To amend the General Education Provisions Act to clarify the definition of a student regarding family educational and privacy rights.
Referred to House Education and the Workforce Committee’s Subcommittee on Education Reform on February 9, 2005.

Paragraph (6) of subsection (a) of section 444 of the General Education Provisions Act (20 U.S.C. 1232g; also known as the Family Educational Rights and Privacy Act of 1974) is amended by inserting `(other than a person educated at a home school, whether or not a home school is treated as a home school or a private school under State law)' after `does not include a person'.

Includes under such coverage any person educated at a home school (whether or not State law treats a home school as a home school or a private school), if an educational agency or institution maintains education records or personally identifiable information on such person (whether or not the home-schooled person is in attendance at the agency or institution). (Current law excludes all those who are not in attendance at the agency or institution.)

NHELD, LLC COMMENT: The answer to this problem is to not give the information to the government in the first place. If existing state law requires provision of the information, work toward repealing that law on the state level.  There should be no reference at all in any federal statute regarding the right of parents to instruct their children at home.

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2. HOPE PLUS SCHOLARSHIP ACT of 2005:

H.R. 403  Introduced by Texas Congressman Ron Paul on January 26, 2005

Title: To amend the Internal Revenue Code of 1986 to allow the Hope Scholarship Credit to be used for elementary and secondary expenses.
Referred to the House Committee on Ways and Means on January 26, 2005.

TEXT of relevant portions: 

Sec. 2. HOPE SCHOLARSHIP CREDIT AVAILABLE FOR ELEMENTARY AND SECONDARY EDUCATIONAL EXPENSES.

(a) In General- Subsection (f) of section 25A of the Internal Revenue Code of 1986 is amended by adding at the end the following new paragraph:

`(3) SPECIAL RULE FOR HOPE SCHOLARSHIP CREDIT- In the case of the Hope Scholarship Credit, the term `qualified tuition and related expenses' shall include `qualified elementary and secondary education expenses' (as defined in section 530(b)(4)); except that--

(A) such term shall include a contribution or gift to the school (other than the home school) at which dependents of the taxpayer are attending, and
(B) the term `school' shall include a home school.'.

(b) Effective Date- The amendment made by this section shall apply to taxable years beginning after December 31, 2004.

NHELD, LLC COMMENT:  This would allow recipients of the Hope Scholarship Credit to use the benefit for “qualified elementary and secondary education expenses” for their “home school” child. The IRS has authority to establish regulations determining the definition of the term “home school” and determining whether a parent’s homeschool curriculum expenses “qualify” for the benefit.  In other words, the IRS can audit your homeschool curriculum expenses.  The risk of federal governmental intrusion far outweighs the negligible benefit.

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3.  FAMILY EDUCATION FREEDOM ACT OF 2005:

H.R .406  Introduced by Texas Congressman Ron Paul on January 26, 2005

Title: To amend the Internal Revenue Code of 1986 to allow individuals a credit against income tax for tuition and related expenses for public and nonpublic elementary and secondary education.
Referred to the House Committee on Ways and Means on January 26, 2005.

Family Education Freedom Act of 2005 - Amends the Internal Revenue Code to allow a tax credit of up to $3,000 per student per year for the cost of attendance at any educational institution (including any private, parochial, religious, or home school) organized to provide elementary or secondary education, or both.

TEXT of relevant portions:

`(c) Definitions- For purposes of this section--

`(1) QUALIFIED EDUCATIONAL EXPENSES- The term `qualified educational expenses' means cost of attendance in connection with the elementary or secondary education of the student at a qualified educational institution. Under regulations prescribed by the Secretary, rules similar to the rules relating to cost of attendance (within the meaning of section 472 of the Higher Education Act of 1965 (20 U.S.C. 1087ll) (as in effect on the date of the enactment of this paragraph) shall apply for purposes of the preceding sentence.

`(2) QUALIFIED EDUCATIONAL INSTITUTION- The term `qualified educational institution' means any educational institution (including any private, parochial, religious, or home school) organized for the purpose of providing elementary or secondary education, or both.

`(e) Regulations- The Secretary shall prescribe regulations to carry out this section, including regulations providing for claiming the credit under this section on Form 1040EZ.'.

NHELD, LLC COMMENT:  This bill authorizes the IRS to adopt regulations that will detail exactly what constitutes a “home school”, and what constitutes a “qualified educational expense”.  In other words, the IRS is authorized to adopt regulations that would enable the IRS to review the curriculum of a home school, the materials used in the home school, the money expended for the home school in order to determine whether any of the expenses “qualify” for the tax benefit.  The IRS, an arm of the federal government, is authorized to audit your home school.  Again, the risk of such substantial government intrusion and the unending ability of the IRS to adopt regulations regarding a home school far outweighs any negligible monetary benefit.

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4.  FED UP HIGHER EDUCATION TECHNICAL AMENDMENTS of 2005:

H.R. 508  Introduced by California Congressman Howard McKeon on February 2, 2005.
Title: To make changes to the Higher Education Act of 1965 incorporating the results of the FED UP Initiative, and for other purposes.
Referred to the Subcommittee on 21st Century Competitiveness on March 24, 2005.

Amends the Higher Education Act of 1965 (HEA) to make various technical revisions regarding access to student aid programs.

Revises the HEA general definition of institution of higher education (IHE) to include one that admits as regular students those who have been home-schooled (as well as high school graduates or those with equivalency certificates), thus conforming it with provisions that make such home-schooled students eligible for student aid under HEA title IV.
 

NHELD, LLC COMMENT:  Inclusion in the general definition of institution of the term “home-schooled” is unnecessary.  Institutions of higher education across the country already are accepting home schooled students, and home schooled students already have been receiving student aid.  Once a student enrolls in an “institution of higher education”, i.e., college, the student is no longer “home schooled”.  The student is merely a college student fully eligible for financial aid.  Again, however, with the introduction of the term, “home school” into yet another federal statute, another federal agency can promulgate regulations to define the meaning of “home school”, thus, increasing the likelihood of disputes concerning the term.  If the term, as defined by the federal agency, conflicts with the term, as defined by a state statute, there is the likelihood that the federal definition will supercede the state definition.  If parents in the state object to their statute being superceded, litigation could ensue resulting in a federal judge ultimately determining the definition of “home school.”  With the current level of judicial activism, it is unknown on what basis any federal judge will determine the meaning of “home school.”

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5.  COLLEGE QUALITY, AFFORDABILITY, AND DIVERSITY IMPROVEMENT ACT of 2005.

S. 371 Introduced by Senator Edward Kennedy on February 14, 2005.

Title: A bill to provide for college quality, affordability, and diversity, and for other purposes.

Read twice and referred to the Committee on Finance on February 14, 2005.

TEXT of relevant portions:  Sec. 209. General Provisions.

`(c) Limitations-

`(1) FEDERAL CONTROL PROHIBITED- Nothing in this part 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 under State law. This section shall not be construed to prohibit private, religious, or home schools from participation in programs or services under this part.

`(2) NO CHANGE IN STATE CONTROL ENCOURAGED OR REQUIRED- Nothing in this part shall be construed to encourage or require any change in a State's treatment of any private, religious, or home school, whether or not a home school is treated as a private school or home school under State law.

NHELD, LLC COMMENT:  This bill also revises the Hope Scholarship Credit and discusses student loans.  The most important provision is the one detailed above.  While it appears beneficial on its face, the problem with an exclusion in a statute is a legal one.  If a court were to have before it another federal statute to “interpret” as to whether or not that statute was meant to include homeschoolers, the court could look at this statute and reason that because Congress knew how to exclude homeschoolers from a statute, and did so in this statute, therefore, Congress necessarily did NOT exclude homeschoolers from the statute before the court.  In other words, because Congress excluded homeschoolers from one statute, it could be interpreted to mean that homeschoolers ARE NOT excluded from any other statute.  Many other federal statutes that refer to “school” in any way, thus, could be used to mean that they apply now to homeschoolers as well.  Any specific exclusion in any bill sets this dangerous precedent.

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6. LIFETIME OF EDUCATION OPPORTUNITIES ACT of 2005:

S. 9  Introduced by Wyoming Senator Michael Enzi on January 24, 2005.
Title: A bill to improve American competitiveness in the global economy by improving and strengthening Federal education and training programs, and for other purposes.

Read twice and referred to the Committee on Finance on January 24, 2005.

Among many other things, this bill amends title II of WIA, also known as the Adult Education and Family Literacy Act, to revise requirements and reauthorize appropriations for adult basic skills education, including adult education and family literacy programs.

TEXT of relevant portions:

Title IV, Subchapter G, Chapter 2. SEC. 441C. HOME SCHOOLS.
Section 204 of the Adult Education and Family Literacy Act (20 U.S.C. 9203) is amended to read as follows:

`SEC. 204. HOME SCHOOLS.
`Nothing in this title shall be construed to affect home schools, whether a home school is treated as a home school or a private school under State law, or to compel a parent engaged in home schooling to participate in an English literacy program, family literacy services, or adult education.'.


NHELD, LLC COMMENT:  Again, this bill appears to be beneficial on its face, but could have long-term legal repercussions for homeschoolers in the future.  This bill specifically excludes “home schools”.  Because Congress specifically excluded home schools from this statute, a court could “interpret” other federal statutes to mean that Congress mean to INCLUDE home schools in those statutes even where no language exists in those statutes that states that home schools are included.  In addition, wherever a federal statute cites the term, “home school”, the statutory definition of the term, or a court’s “interpretation” of the definition of that term, could conflict with the definition of the term under state law such that the federal definition will supercede the state definition.

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7.  COLLEGE ACCESS AND OPPORTUNITY ACT of 2005:

H.R. 609  Introduced by Ohio Congressman John Boehner on February 8, 2005.
Title: To amend and extend the Higher Education Act of 1965.

Ordered to be Reported out of House committees (Amended) by the Yeas and Nays: 27 – 20 on July 22, 2005.

This bill revises and reauthorizes various programs in addition to reauthorizing appropriations for them. It also revises the definition of institution of higher education.

TEXT of relevant portions:

`SEC. 209. GENERAL PROVISIONS.

`(c) Limitations-

`(1) FEDERAL CONTROL PROHIBITED- Nothing in this part 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 is treated as a private school or home school under State law. This section shall not be construed to prohibit private, religious, or home schools from participation in programs or services under this part.
`(2) NO CHANGE IN STATE CONTROL ENCOURAGED OR REQUIRED- Nothing in this part shall be construed to encourage or require any change in a State's treatment of any private, religious, or home school, whether or not a home school is treated as a private school or home school under State law.

NHELD, LLC COMMENT:  Again, while the language appears to be beneficial, it will have negative impact in the future.  This language is particularly dangerous in that it can be construed by courts in a manner similar to the construction of “exclusions”.  This bill specifies that nothing in the particular bill “shall be construed to permit, allow, encourage, or authorize any Federal control over any aspect of any private, religious, or home school…”  A court could say about other federal statutes that because Congress knew how to use that language in this statute and did not do so in the other statutes, that Congress meant that the other statutes could be construed to permit, allow, encourage, and authorize federal control over private, religious and home schools.  In addition, this language is unnecessary.  The U.S. Constitution specifies in the Tenth Amendment that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The Constitution DOES NOT DELEGATE to the United States any power to “allow, encourage, or authorize” control over “any aspect of any private, religious, or home school.”  Therefore, that power is reserved to the States, respectively, or to the people. By not opposing the language in this statute, we are unconstitutionally ceding authority to the federal government where none exists.

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8.  COLLEGE ACCESS AND OPPORTUNITY ACT of 2005:

H.R.507  Introduced by Ohio Congressman John Boehner on February 2, 2005.
Title: To amend and extend the Higher Education Act of 1965.

Referred to the Subcommittee on 21st Century Competitiveness on March 24, 2005.

This bill is similar to H.R. 609 in that it amends the Higher Education Act of 1965 (HEA) to revise and reauthorize various programs.  It also contains the same language regarding “home schools” as H.R. 609.

TEXT of relevant portions:

`SEC. 209. GENERAL PROVISIONS.

`(c) Limitations-

`(1) FEDERAL CONTROL PROHIBITED- Nothing in this part 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 under State law. This section shall not be construed to prohibit private, religious, or home schools from participation in programs or services under this part.
`(2) NO CHANGE IN STATE CONTROL ENCOURAGED OR REQUIRED- Nothing in this part shall be construed to encourage or require any change in a State's treatment of any private, religious, or home school, whether or not a home school is treated as a private school or home school under State law.

NHELD, LLC COMMENT:  Because the language in H.R. 507 is identical to the language in H.R. 609, NHELD, LLC also opposes H.R. 507 for the identical reasons.

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9.  JOB TRAINING IMPROVEMENT ACT of 2005:

H.R. 27  Introduced by California Congressman Howard McKeon on January 4, 2005.
Title: To enhance the workforce investment system of the Nation by strengthening one-stop career centers, providing for more effective governance arrangements, promoting access to a more comprehensive array of employment, training, and related services, establishing a targeted approach to serving youth, and improving performance accountability, and for other purposes.

Passed/agreed to in House: On passage Passed by recorded vote: 224 - 200 (Roll no. 48).

Referred to Senate committee: Received in the Senate and Read twice and referred to the Committee on Health, Education, Labor, and Pensions.

TEXT of relevant portions:

Title II, Part A – Adult Basic Skills and Family Literacy Education. `SEC. 204. HOME SCHOOLS.

`Nothing in this title shall be construed to affect home schools, whether or not a home school is treated as a home school or a private school under State law, or to compel a parent engaged in home schooling to participate in an English language acquisition program, a family literacy education program, or an adult education, basic skills, and family literacy education program.

NHELD, LLC COMMENT:  This bill, once again, contains an exclusion for home schools.  Once again, the problem exists that a court could construe other federal statutes as INCLUDING home schools because this statute shows that Congress knew how to exclude home schools when it wanted to and because it did not do so in other statutes, then Congress must have meant to INCLUDE home schools in those other statutes.  Because this bill also contains the term, “home school”, that term’s meaning in a federal statute could supercede the meaning of the term as defined by a state statute. Any mention of home school in a federal statute cedes authority to the federal government where none exists. The U.S. Constitution has not delegated to the federal government any authority over the education of students by their parents where the parents are not recipients of federal funding for the education.

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10.  COLLEGE OPPORTUNITY FOR ALL ACT of 2005:

H.R.2960  Introduced by California Congressman George Miller on June 17, 2005.
Title: To amend the Higher Education Act of 1965.

Referred to the Subcommittee on 21st Century Competitiveness on July 25, 2005.

Amends the Higher Education Act of 1965 (HEA) to revise and reauthorize requirements relating to a variety of programs.

TEXT of relevant portions:

'SEC. 114. ESTABLISHING ADDITIONAL SAFEGUARDS ON SCHOOLS ACTING AS LENDERS UNDER THE FEDERAL FAMILY EDUCATION LOAN PROGRAM.
Section 435(d)(2) (20 U.S.C. 1085(d)(2)) is amended to read as follows:

`(2) REQUIREMENTS FOR ELIGIBLE INSTITUTIONS-

`(A) IN GENERAL- To be an eligible lender under this part, an eligible institution

`(i) shall employ at least one person whose full-time responsibilities are limited to the administration of programs of financial aid for students attending such institution;
`(ii) shall not be a home study school.


NHELD, LLC COMMENT:  This bill appears to have minor implications.  There is, however, the possibility that a federal definition of “home study school” could supercede the definition of “home school” in a state statute.

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11.  WORKFORCE INVESTMENT ACT AMENDMENTS of 2005:

S.1021  Introduced by Wyoming Senator Michael Enzi on May 12, 2005.
Title: A bill to reauthorize the Workforce Investment Act of 1998, and for other purposes.

Committee on Health, Education, Labor, and Pensions. Ordered to be reported with an amendment in the nature of a substitute favorably on May 15, 2005.

     SEC. 203. HOME SCHOOLS.

Section 204 of the Adult Education and Family Literacy Act (20 U.S.C. 9203) is amended to read as follows:

     `SEC. 204. HOME SCHOOLS.

`Nothing in this title shall be construed to affect home schools, whether a home school is treated as a home school or a private school under State law, or to compel a parent engaged in home schooling to participate in an English language acquisition program, family literacy services, or adult education.'.

NHELD, LLC COMMENT:  Again, yet another provision “excluding” home schools.  NHELD, LLC opposes this provision for the same reasons cited in its comment on other “exclusionary” provisions.  Furthermore, this “exclusion” limits the exclusion only to participation in “an English language acquisition program, family literacy services or adult education” Those in charge of implementing this statute could easily establish other regulations and programs which would apply to home schools. The more bills that provide for an “exclusion”, the more evidence a court has to “interpret” other statutes to mean that Congress intended to INCLUDE home schools in those statutes.

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