Legal Analysis of Illinois Home school Law Enforcement

The Illinois Homeschoolng law itself is not complex.  Illinois does have a compulsory education law, which like all laws, is enforceable by the State.  Questions have arisen regarding how the State applies and enforces its laws to homechoolers.

The job of enforcing laws is that of the States Attorney in the county.  School Districts do not have legal powers.  Schools do have regional superintendents and truant officers.  They have no power to determine whether a home school is in or out of compliance with the compulsory education law.  Only the court can make a conclusive determination.  Only a States Attorney can initiate a proceeding to get before a judge.  At most, the truant officer can refer a situation to the States Attorney with a recommendation.  The truant officer can describe the situation to the States Attorney who must decide whether legal proceedings are appropriate to enforce the compulsory education statute, and if so, the most appropriate type of proceeding: a criminal action, a truancy petition or a neglect petition against the parents.  Each type of proceeding has different proofs and remedies.

School personnel have no judicial powers.  They have no power to compel anyone to produce attendance or evidence.  They do have the duty to investigate who is truant and who meets the private school exemption of the compulsory education statute.  That determination is not the same as a legal binding one.  A truant officer cannot compel or threaten or harass.  A truant officer has no power to subpoena records or search a home.  All he can do is say that based on the information he has, the matter is ripe for referral to a  States Attorney.  The issue before the truant officer is "How can I comply with my statutory duty of determining whether this child is truly a truant or a privately-schooled student?

Part 1--Bluedorn Analysis of Illinois Home school Laws

Part 2--Legal Resources for Illinois Homeschoolers

Part 1
This is an essay by the authors listed below. 
It is not endorsed by AutismNews or the host of this website. 
Laws are complicated.  Only a lawyer can give  you competent legal advice. 
Do not rely upon this information as legal advice.

Bluedorn Analysis of Illinois Homeschool Laws (followed by other laws which also apply)



The Illinois statute reads:

“Compulsory school age_Exemptions. Whoever has custody or control of any child between the ages of 7 and 16 years shall cause such child to attend some public school in the district wherein the child resides the entire time it is in session during the regular school term, except as provided in Section 10-19.1, and during a required summer school program established under Section 10-22.33B; provided, that the following children shall not be required to attend the public schools: 1. Any child attending a private or a parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of the child in the branches of education is in the English language....” Illinois Compiled Statutes – School Code Sec. 26-1 (105 ILCS 5/26-1).

The Supreme Court of Illinois, in People v. Levisen, has ruled on whether a child who attends a private home school is in compliance with the statute. Though the Levisens failed to stipulate that they were a “private school,” the Supreme Court of Illinois ruled that they nevertheless were indeed a private school, according to legislative intent. Before the Law, a private home school is no different from any other private school.

Public school officials have no jurisdiction unless granted by Law. Constitution of the State of Illinois, Article VII, Section 8. Submitting to public school “review” and “approval” of a private home school program would defacto change the status of the school from a “private” school to a “public” school approved tutorial program.

Full compliance with Illinois Law cannot require compliance with non-statutory administrative regulations of a government agency which lacks jurisdiction. Rather, a “lawful school” is a school in full compliance with Illinois Law.  Private Home Education which includes teaching in the branches of education taught to children of corresponding age and grade in the public schools in the English language is in full compliance with Illinois Law.

To threaten criminal prosecution for failing to comply with administrative rules which have no jurisdiction and which have no foundation in law, such as requirements for keeping a specific kind of attendance record book, are deceptive attempts to intimidate people into waiving their rights, and are furthermore a denial of due process of law. Truant officers are to proceed only after determining

“... if the children complained of are not exempt under the provisions of this Article [26]....” Illinois Compiled Statutes – School Code Sec. 26-5 (105 ILCS 5/26-5).

“If any person fails to send any child under his custody or control to some lawful school the truant officer shall, as soon as practicable after he is notified thereof, give notice in person or by mail to such person that such child shall be present at the proper public school on the day following the receipt of such notice.” Illinois Compiled Statutes – School Code Sec. 26-7 (105 ILCS 5/26-7).

According to Illinois Law, a private home school is a lawful school. Hence there is no authority in this statute for notification of persons who have their children in a private home school.

The United States Supreme Court has explicitly held that in a criminal prosecution the state must prove every element of a crime (even if statutorily worded as an exception) beyond reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 704 (1975); In re Winship, 397 U.S. 358, 364 (1970). The state must carry the burden of proving beyond any reasonable doubt that the parents are not competent to teach. “This case must be considered in the light of the fact that the charge involved is a criminal one, potentially subjecting these parents to criminal penalties. It is therefore the burden of the prosecution to establish by the requisite measure all of the essential elements of the criminal act.” Vermont v. LaBarge. 357 A. 2d 121 (1976) cf. State v. Massa, 95 N.J. Super. 382 and State v. Dyck, (Wells County Court, N.D., January 31, 1978) “The American accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the expedient of compelling it from his own mouth.” Miranda v. Arizona (1966).

The claim and exercise of a constitutionally guaranteed right cannot be converted into a crime. “The compulsory education statute may not be applied as a coercive means to require that a citizen give up his constitutional rights.” Dobbins v. Commonwealth, 198 Va. 697, 96 SE 2d 154 (1957)

First Amendment and other freedoms are fully protected by the U.S. Civil Rights Acts: 42 USC 1983-88, and “historically damages have been regarded as the ordinary remedy for the invasion of personal interest.” Vivens v. Six Unknown Agents, 403 U.S. 388

“Encroachment of First Amendment rights cannot be justified upon a mere showing of a legitimate state interest;” Kusper v. Potikes, 414 S. 51; “... if the facts adduced at trial were to establish an infringement of the Student’s First Amendment right, she would have had a cause of action for damages in the federal courts....Compensatory damages may be awarded under certain circumstances in a civil-right case, although no out-of-pocket expenses are shown...punative damages may be awarded in some situations for a malicious and wanton disregard for a plantiff’s constitutional rights, even in...absense of actual damages.’ Paton v. LaPrade, 524 S. 2d 862.

“If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution, or laws of the United States...they shall be fined not more than $10,000, or imprisoned not more than ten years, or both.” “Whoever, under colour of any law, statute, ordinance, regulation, or custom, wilfully subjects any inhabitants of any state, territory, or district to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States shall be fined not more than $1,000 or imprisoned not more than one year, or both.” Criminal Justice Code, Title 18, Sections 241 and 242, see also Title 42, Sections 1983, 85, 86.
Harvey and Laurie Bluedorn
Trivium Pursuit
Logic Loop
Illinois Homeschool
Homeschooling with the Trivium

Part 2

The above article provides a good offense, and sometimes the best defense is a good offense.
What follows is a consideration of some of the other laws which apply in Illinois:
For more analysis of the laws, you may wish to check these resources:
Legal Resources for Illinois Homeschoolers
Additional Home school legal references Compulsory Education law Juvenile Court Act Levisen case
Homeschool and Special Education Attorney General Summary
Scoma case

Remember, public officials have three  routes to enforce the compulsory education law (105 ILCS 5/26-1).

While you do not want to be involved in any of the above proceedings, a truancy petition is the most appropriate and the least offensive proceeding a State offical can bring.  There is some question whether a neglect proceeding is still appropriate. Compliance with the compulsory education statute is no longer included in the definition of Neglected Child for the purposes of DCFS reporting (325 ILCS 5/3); however, failure to educate is still defined as neglect for the purposes of the Juvenile Court Act (705 ILCS 405/2-3).

Burden of Proof:

The Illinois Supreme Court discussed the burden of proof in Levisen:

"Those who prefer this [homeschooling] method as a substitute for attendance at the public school have the burden of showing that they have in good faith provided an adequate course of instruction in the prescribed branches of learning.  This burden is not satisfied if the evidence fails to show a type of instruction and discipline having the required quality and character.  No parent can be said to have a right to deprive his child of educational advantages at least commensurate with the standards prescribed for the public schools, and any failure to provide such benefits is a matter of great concern to the courts."
Section 3-33 of the Juvenile Court Act states:
Sec. 3-33.  Truant Minor in Need of Supervision.
    (a)  Definition.   A  minor  who   is   reported   by   a   regional
superintendent  of schools, or in cities of over 500,000 inhabitants, by
the Office of Chronic Truant Adjudication, as a chronic truant shall  be
adjudged a truant minor in need of supervision.
    (a-1)  There  is a rebuttable presumption that a chronic truant is a
truant minor in need of supervision.
    (a-2)  There is a rebuttable presumption that school  records  of  a
minor's attendance at school are authentic.

"Chronic  or habitual truant" shall be defined as a child subject to
compulsory school attendance and who is absent without valid cause  from
such  attendance  for 10% or more of the previous 180 regular attendance
days. 105 ILCS  5/26-2a.

The Attorney General of the State of Illinois summarized the law in 1991:

Subsequent cases have underscored the court's statement that home schooling may not be used as a pretext for evading the parental responsibility for educating children. In People v. Harrell (1962), 34 Ill.App.2d 205, parents who withdrew their children from public school to place them in a home school that had not yet been organized and did not have appropriate materials were found guilty of violating the compulsory education law, since the education provided was not equivalent to that which was provided by the public school. Similarly, in People v. Berger (1982), 109 Ill.App.3d 1054, parents who kept a child at home because the school environment allegedly aggravated her allergies, but who did not attempt to provide education at home, were found guilty of violating the law. These cases, together with People v. Levisen, clearly illustrate that there must be an organized, coherent plan for educating the child in a home school using appropriate materials and teaching methods, in order to satisfy section 26-1 of the School Code.
. . .
Parents who withdraw their child from public school have the burden of proving that their plan of home instruction qualifies as a private school, for purposes of the compulsory education law. (People v. Levison (1950), 404 Ill. [574], 577-78; See also, Scoma v. Chicago Board of Education (N.D.Ill.1974), 391 F.Supp. 452, 462.) Therefore, the school district may inquire into the child's non-attendance at public school and the adequacy of the home school plan. If it is determined that the plan is not adequate or equivalent to the education provided by the public school, charges can be filed against the parents for violation of the compulsory attendance law. (Ill.Rev.Stat.1989, ch. 122, par. 26-10.) Alternatively, under appropriate circumstances a child whose parents do not provide for his proper education may be treated as a neglected minor, pursuant to section 2-3 of the Juvenile Court Act. (Ill.Rev.Stat.1989, ch. 37, par. 802-3.)

In summary, it is my opinion that the parents of a child with disabilities may elect to educate their child in a home school if the education provided is equivalent to that which a child of similar abilities receives in the public schools. The failure to provide an equivalent education, however, constitutes a violation of section 26-1 of the Illinois School Code.

Thus, it is the opinion of the State of Illinois that truant officers must be able to inquire into a child's nonattendance at the public school.

Any court considering the above laws would likely hold that truant officers do have the duty to investigate who is a truant and who is in a private school.  The truant officers may have an opinion of the adequacy of the homeschool lesson plan that differs from that of the parents; however, it is not the school officers' authority to  make a judicial determination whether the plan is in fact equivalent or better than that of the school.  All the school can do is inquire and instigate a legal proceeding.  How they can inquire is limited.  Unless there is a  a petition filed before a court, I am unaware of any law which could grant the subpoena power or compulsory discovery to a school.  Nobody in this State has the power to issue a subpoena, not the police chief, not the governor, other than a court or a grand jury.  The school would have to get another authority to enforce the law.  While the above article states "[t]ruant officers are to proceed only after determining '... if the children complained of are not exempt under the provisions of this Article,'" the article thereby concedes that the truant officer has to form a determination.

Portions of the Abused and Neglected Child Reporting Act

(325 ILCS 5/3)
    "Neglected child" means any child who is not receiving the proper or
necessary nourishment or medically indicated treatment including food or
care  not  provided  solely  on  the basis of the present or anticipated
mental or physical impairment as determined by a physician acting  alone
or  in  consultation with other physicians or otherwise is not receiving
the proper or necessary  support  or  medical  or  other  remedial  care
recognized  under  State  law  as necessary for a child's well-being, or
other care necessary for his or her well-being, including adequate food,
clothing and shelter; or who is abandoned by his or her parents or other
person responsible for the child's welfare  without  a  proper  plan  of
care;  or  who  is  a  newborn  infant  whose  blood, urine, or meconium
contains any amount of a controlled substance as defined  in  subsection
(f)  of  Section  102  of  the  Illinois  Controlled Substances Act or a
metabolite thereof, with the exception  of  a  controlled  substance  or
metabolite thereof whose presence in the newborn infant is the result of
medical  treatment  administered  to the mother or the newborn infant. A
child shall not be considered neglected for the  sole  reason  that  the
child's  parent  or  other person responsible for his or her welfare has
left the child in the care of an adult relative for any period of  time.
A  child  shall not be considered neglected for the sole reason that the
child has been relinquished in accordance  with  the  Abandoned  Newborn
Infant  Protection  Act.   A  child shall not be considered neglected or
abused for the sole reason that such  child's  parent  or  other  person
responsible  for his or her welfare depends upon spiritual means through
prayer alone for the treatment or cure of disease or  remedial  care  as
provided  under  Section 4 of this Act.  A child shall not be considered
neglected or abused solely because the child is not attending school  in
accordance  with  the  requirements of Article 26 of The School Code, as

(also Ill. Admin Code ch. 89, sec. 300.20)

Persons  required  to  report;  privileged  communications; transmitting  false  report.

 Any ... personnel ...,  school personnel, ...
educational advocate assigned to a child pursuant to  the  School  Code,
truant  officers, social worker, social services administrator, domestic
..., law enforcement officer,  ..., or any other foster parent, homemaker or  child
care  worker having reasonable cause to believe a child known to them in
their professional or official capacity may be  an  abused  child  or  a
neglected child shall immediately report or cause a report to be made to
the Department.
         In  addition to the above persons required to report suspected cases
of abused or neglected children, any other person may make a  report  if
such  person  has  reasonable  cause to believe a child may be an abused
child or a neglected child.
    A  child  shall not be considered neglected or abused solely because
the child is not attending school in accordance with the requirements of
Article 26 of the School Code, as amended.

Portions of the Juvenile Court Act

(705 ILCS 405/1-4)
    Sec. 1-4.  Limitations of scope of Act.  Nothing in this  Act  shall
be   construed  to  give:  (a)  any  guardian  appointed  hereunder  the
guardianship of the estate of the minor or to change the age of minority
for any purpose other than those expressly stated in this  Act;  or  (b)
any  court  jurisdiction,  except as provided in Sections 2-7, 3-6, 3-9,
4-6 and 5-410, over any minor solely on the basis  of  the  minor's  (i)
misbehavior which does not violate any federal or state law or municipal
ordinance,  (ii)  refusal  to obey the orders or directions of a parent,
guardian or custodian, (iii) absence from home without  the  consent  of
his or her parent, guardian or custodian, or (iv) truancy, until efforts
and  procedures to address and resolve such actions by a law enforcement
officer during a period  of  limited  custody,  by  crisis  intervention
services  under  Section  3-5,  and by alternative voluntary residential
placement or other disposition as provided  by  Section  3-6  have  been
exhausted without correcting such actions.
(Source: P.A. 91-357, eff. 7-29-99.)
(705 ILCS 405/2-3)
    Sec. 2-3.  Neglected or abused minor.
    (1)  Those who are neglected include:
         (a)  any minor under 18 years of age who is not  receiving  the
    proper  or  necessary  support,  education  as  required  by law, or
    medical or  other  remedial  care  recognized  under  State  law  as
    necessary  for a minor's well-being, or other care necessary for his
    or her well-being, including adequate food, clothing and shelter, or
    who is abandoned by his or her parents or other  person  responsible
    for the minor's welfare, except that a minor shall not be considered
    neglected  for  the  sole  reason  that  the minor's parent or other
    person responsible for the minor's welfare has left the minor in the
    care of an adult relative for any period of time;
(705 ILCS 405/2-5)
    Sec. 2-5. Taking into custody. (1) A law  enforcement  officer  may,
without  a  warrant,  take  into  temporary custody a minor (a) whom the
officer with reasonable cause believes  to  be  a  person  described  in
Section  2-3  or  2-4;
  (705 ILCS 405/2-9)
    Sec. 2-9.  Setting of temporary custody hearing; notice; release.
    (1)  Unless sooner released, a minor as defined in  Section  2-3  or
2-4  of this Act taken into temporary protective custody must be brought
before a judicial officer  within  48  hours,  exclusive  of  Saturdays,
Sundays  and  court-designated holidays, for a temporary custody hearing
to determine whether he shall be further held in custody.
    (2)  If  the  probation  officer  or  such  other   public   officer
designated  by the court determines that the minor should be retained in
custody, he shall cause a petition to be filed as  provided  in  Section
2-13  of  this  Article, and the clerk of the court shall set the matter
for hearing on the temporary custody hearing calendar.  When  a  parent,
guardian,  custodian or responsible relative is present and so requests,
the temporary custody hearing shall be held immediately if the court  is
in  session,  otherwise  at  the  earliest feasible time. The petitioner
through counsel or such other public officer  designated  by  the  court
shall  insure notification to the minor's parent, guardian, custodian or
responsible relative of the time and place of the hearing  by  the  best
practicable  notice, allowing for oral notice in place of written notice
only  if  provision  of  written  notice  is  unreasonable   under   the
    (3)  The minor must be released from temporary protective custody at
the  expiration  of  the 48 hour period specified by this Section if not
brought before a judicial officer within that period.
(705 ILCS 405/2-10)
    Sec. 2-10.  Temporary custody hearing.  At  the  appearance  of  the
minor  before  the court at the temporary custody hearing, all witnesses
present shall be examined before the court in  relation  to  any  matter
connected with the allegations made in the petition.
    (1)  If  the court finds that there is not probable cause to believe
that the minor is abused, neglected or dependent it  shall  release  the
minor and dismiss the petition.
    (2)  If the court finds that there is probable cause to believe that
the  minor  is  abused, neglected or dependent, the court shall state in
writing the factual basis supporting its finding and the minor,  his  or
her  parent, guardian, custodian and other persons able to give relevant
testimony shall  be  examined  before  the  court.
(705 ILCS 405/2-13)
    Sec. 2-13.  Petition.
    (1)  Any  adult  person,  any   agency   or   association   by   its
representative may file, or the court on its own motion, consistent with
the health, safety and best interests of the minor may direct the filing
through  the  State's Attorney of a petition in respect of a minor under
this Act.  The petition and all  subsequent  court  documents  shall  be
entitled "In the interest of ...., a minor".
    (2)  The  petition  shall be verified but the statements may be made
upon information and belief.  It shall allege that the minor is  abused,
neglected, or dependent, with citations to the appropriate provisions of
this  Act,  and  set forth (a) facts sufficient to bring the minor under
Section 2-3 or 2-4 ... 
    (3)  The  petition  must  allege that it is in the best interests of
the minor and of the public that he be adjudged a ward of the court  and
may  pray  generally  for  relief available under this Act. The petition
need not specify any  proposed  disposition  following  adjudication  of
        In addition to the foregoing, the petitioner, by motion, may request
the termination of parental rights and appointment of a guardian of  the
person with power to consent to adoption of the minor under Section 2-29
at any time after the entry of a dispositional order under Section 2-22.
Legal Resources for Illinois Homeschoolers
Additional Home school legal references Compulsory Education law Juvenile Court Act Levisen case
Homeschool and Special Education Attorney General Summary Bluedorn analysis Scoma case