Now that HB 5468 has been signed into law, thousands of homeschoolers’ voices were basically ignored, and we are left with a very questionable Public Act 26-37, legal advocates have stepped up to the plate and taken action at the federal level. Why?
The Homeschool Legal Defense Association (HSLDA) and the Family Institute of Connecticut (FIC) have been filed federal complaints that have been accepted! Good news.
The basic problem
Connecticut appears to be trying to justify sending children’s identifying information from schools to DCF in several contradictory ways.
During the House debate, legislators reportedly said that personally identifiable information would not be shared with DCF.
But they also discussed using FERPA’s directory-information exception.
And the law separately attempts to designate DCF as a state educational authority, apparently so that another FERPA exception can be used.
The problem is simple:
If no personally identifiable information is being shared, why does Connecticut need exceptions to a federal law that restricts the sharing of personally identifiable information?
That is the contradiction at the center of the argument.
1. Names and birth dates are personal information
Under FERPA, information such as a student’s name, address, date of birth, and other identifying information can constitute personally identifiable information—PII.
So if a school sends a child’s identifying information to DCF so that DCF can conduct the records check required by PA 26-37, information about an identifiable child necessarily has to reach DCF somehow.
Connecticut cannot simply say:
“We’re not sharing personal information. We’re only sharing the child’s name and identifying information.”
Those things are personal information.
2. “Directory information” doesn’t mean “not personal”
FERPA permits schools, under certain circumstances, to designate some information as “directory information.”
But directory information is still information connected to an identifiable student.
More importantly, FERPA has procedures surrounding its disclosure. Parents generally must receive notice of what the school considers directory information and have an opportunity to opt out of its disclosure.
The Family Institute’s argument is therefore that Connecticut cannot simply take the directory-information exception—which was designed to permit certain limited disclosures—and transform it into a mechanism for sending children’s information to a child-protection agency for government screening.
That raises an obvious question:
What happens when a parent has opted out of directory-information disclosure?
If PA 26-37 nevertheless requires the school to send that child’s information to DCF, then Connecticut would need some other valid FERPA basis for the disclosure.
3. Calling DCF an “educational authority” doesn’t necessarily make it one
This may be the most significant argument.
FERPA has an exception allowing certain disclosures for legitimate educational audits and evaluations.
Connecticut’s law attempts to designate DCF as a state educational authority.
But the Family Institute’s argument is essentially:
Government cannot manufacture a FERPA exception simply by changing an agency’s title in state law.
DCF’s fundamental function is child welfare. Under PA 26-37, DCF is not receiving information to evaluate whether a school program is effective. It is checking its own records to determine whether an adult associated with a child appears in particular DCF records.
That is a very different function from auditing or evaluating an educational program.
So the legal question becomes:
Can Connecticut transform a child-welfare agency into an “educational authority” merely by declaring it one—and then use that designation to obtain student information that otherwise could not be disclosed without parental consent?
The Family Institute’s position is essentially no.
The three contradictory positions
This is where I think their argument becomes particularly powerful. Connecticut appears to be saying some combination of:
- We aren’t sharing PII with DCF.
- We can share the information because it is directory information.
- We can share the information because DCF is an educational authority.
But those are not interchangeable arguments.
If the information isn’t PII, Connecticut doesn’t need a FERPA exception.
If it is directory information, the directory-information requirements apply—including parental rights surrounding disclosure.
If Connecticut instead relies on the educational-authority exception, then it has to satisfy the requirements of that completely different exception, including showing that the disclosure is actually for a legally permissible educational audit or evaluation purpose.
Connecticut cannot simply move among exceptions depending upon which one answers the objection being raised.
What this means for PA 26-37
In very plain English, the accusation is that Connecticut designed the system backward:
The state decided it wanted schools to send children’s identifying information to DCF. Then it tried to construct a legal pathway under FERPA that would allow it to happen without parental consent.
The Family Institute is arguing that FERPA does not work that way.
The state first has to identify a legitimate FERPA exception. Then the disclosure must actually fit within that exception, and Connecticut must comply with all of the requirements attached to it.
Simply putting the words “state educational authority” into Connecticut law does not necessarily change what DCF actually is or what DCF is actually doing.
And that brings everything back to one extraordinarily simple question:
What information, exactly, must a school send to DCF for DCF to conduct the records check required by PA 26-37—and under precisely which FERPA exception is each piece of that information being disclosed?
That question needs a clear answer.
Because “we aren’t sharing personally identifiable information” cannot logically be the answer if DCF has to know which particular child and household it is checking.
HSLDA
HSLDA’s objections, when viewed alongside the Family Institute of Connecticut FERPA argument, the picture becomes much larger.
HSLDA was warning before passage that HB 5468 was not merely an administrative change. Their position was that it created a fundamentally new relationship between Connecticut homeschool families and government: registration of families, mandatory DCF screening for certain withdrawals, and government power to prevent parent-managed learning based on DCF records or an unresolved investigation. Their general counsel separately concluded that the bill raised substantial constitutional concerns.
The basic HSLDA argument
Before PA 26-37, Connecticut did not require every homeschool family to register annually with the government or obtain government clearance before beginning home education.
HB 5468 changed that framework.
The state was no longer simply saying:
Parents have a legal duty to educate their children.
It was moving toward:
Parents must identify their educational choice to government, and some parents leaving public school must first pass through a government screening process before that choice can take effect.
That distinction is enormous.
1. An accusation can affect a family’s educational rights before it is proven
This is one of HSLDA’s strongest concerns.
Under the framework they were analyzing, a household member’s involvement in an open DCF investigation could prevent the family from immediately proceeding with parent-managed learning—even though an investigation is not a finding of wrongdoing.
That creates a fundamental due-process question:
Should an unproven allegation against one adult in a household give the government power to interfere with a parent’s educational decision for a child?
Someone can make a report to DCF.
DCF can open an investigation.
The allegation may ultimately be unsubstantiated.
But during that period, the family’s educational rights can nevertheless be affected.
That is why HSLDA characterized the law as imposing an administrative barrier on a fundamental parental right. Its general counsel argued that registry status also does not necessarily establish parental unfitness or inability to educate a child.
2. The DCF registry was not designed as a homeschool licensing system
This is another important point.
The abuse and neglect registry exists for child-protection purposes. HSLDA’s argument was that Connecticut was effectively taking information collected for one government purpose and using it as a gatekeeping mechanism for an entirely different purpose:
determining whether a family may homeschool.
And, as HSLDA emphasized, “neglect” covers a broad range of circumstances. A DCF record does not necessarily answer the question:
Is this parent capable of providing an education?
Yet PA 26-37 connects the two.
That is a major policy shift.
3. There is an enormous difference between child protection and universal screening
This distinction gets lost constantly in this debate.
Government already has authority to investigate credible allegations that a particular child is being abused or neglected.
HB 5468 created something different: a process in which families exercising a particular educational choice can be subjected to a DCF records check without any individualized suspicion that their child is being harmed.
In plain English:
The family isn’t being checked because anyone reported abuse. The family is being checked because the parent wants to remove a child from public school for parent-managed learning.
That is precisely why opponents describe this as surveillance rather than ordinary child protection.
4. HSLDA’s due-process concern goes beyond privacy
This is where the HSLDA argument adds something that the FIC FERPA argument does not.
The FERPA question asks:
Does the government have the legal authority to transfer this information between the school and DCF?
The due-process question asks:
Even if the government legally obtains the information, can it constitutionally use that information to prevent a parent from exercising the right to direct a child’s education?
Those are two completely different legal challenges.
And potentially both matter.
Now combine HSLDA and FIC
This is where PA 26-37 becomes vulnerable from several directions at once.
The state needs information about an identifiable family to conduct the DCF check.
That immediately raises the FERPA question:
What information is being transferred, and what federal exception legally permits that transfer without parental consent?
Then DCF examines its records.
That raises the privacy and government-surveillance question:
Why are families being screened by a child-welfare agency merely because they selected one lawful educational option?
Then the government uses the result to determine whether the withdrawal can proceed.
That raises the due-process question:
Can the government burden a fundamental parental decision based upon an unresolved allegation or an administrative record without adequate individualized process?
And then there is an equal-treatment question that I continue to find particularly interesting:
Why does moving a child from public school to parent-managed learning trigger this particular DCF process when moving that same child into another educational setting does not necessarily trigger an equivalent child-welfare screening process?
That question gets directly at whether the government is actually addressing child safety or whether it has singled out homeschooling itself for special suspicion.
And now the FERPA complaint becomes even more consequential
The irony is striking.
Connecticut created this elaborate DCF screening mechanism supposedly to increase government knowledge about children leaving public schools.
But for the system to function, government agencies apparently must exchange information about those children and families.
So we arrive at the issue FIC identified:
What exactly is being shared?
If the answer is nothing personally identifiable, how can DCF know whose records to check?
If personally identifiable information is being shared, what FERPA exception authorizes it?
If Connecticut says directory information, what happens when parents have exercised their FERPA rights concerning directory information?
If Connecticut says DCF is an educational authority, what educational program is DCF auditing or evaluating when it searches child-welfare records?
And if the answer changes depending upon who asks the question, that itself becomes significant.
The larger picture developing
When this law was being debated, opponents warned about hypothetical constitutional and practical problems.
Now the law exists, and those theories can be tested against the actual system Connecticut must construct to implement it.
That gives several distinct lines of scrutiny:
FERPA and information sharing. Due process and unsubstantiated allegations. Lack of meaningful appeal or procedural protection. Government screening without individualized suspicion. Unequal treatment of parent-managed learning. The use of child-welfare records for educational gatekeeping. And the practical implementation problems already appearing before major provisions even take effect.
And this brings us straight back to the principle we identified before:
Before government demands more information about law-abiding families, government should be required to explain precisely what information it is collecting, why it needs it, who receives it, who can access it, how it is used, how long it is retained, and what meaningful recourse exists when government gets it wrong.
The HSLDA and FIC arguments are therefore highly complementary. FIC is attacking the pipeline that allows the information to move. HSLDA is challenging what government does with that information once it gets there—and whether the government can constitutionally make DCF involvement a gatekeeper to a parent’s educational choice.
And given HSLDA’s subsequent federal FERPA complaint the progression is important: they warned legislators before passage that this structure created serious legal problems; the law passed anyway; and now those concerns are moving from legislative warnings into formal federal challenges.