Louisiana Law Review Louisiana Law Review
Volume 82
Number 4
Summer 2022
Article 12
6-27-2022
TOPSy-Turvy: The Taylor Opportunity Program for Students’ TOPSy-Turvy: The Taylor Opportunity Program for Students’
Homeschool Discrimination Contradiction Homeschool Discrimination Contradiction
Chaz Morgan
Follow this and additional works at: https://digitalcommons.law.lsu.edu/lalrev
Repository Citation Repository Citation
Chaz Morgan,
TOPSy-Turvy: The Taylor Opportunity Program for Students’ Homeschool Discrimination
Contradiction
, 82 La. L. Rev. (2022)
Available at: https://digitalcommons.law.lsu.edu/lalrev/vol82/iss4/12
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TOPSy-Turvy: The Taylor Opportunity Program for
Students’ Homeschool Discrimination Contradiction
Chaz Morgan
*
TABLE OF CONTENTS
Introduction: An Unnecessary Burden? ..................................... 1319
I. Background—Homeschooling, TOPS, and
Constitutional Standards ............................................................ 1323
A. Homeschooling in General .................................................. 1324
1. Homeschoolers' Academic Performance ....................... 1326
2. The Homeschool Stigma ............................................... 1328
B. Louisiana’s TOPS Program ................................................. 1329
C. Constitutional Standards for Analyzing Legislation ............ 1334
II. Arguments Against Homeschool Discrimination ....................... 1338
A. State Equal Protection Analysis ........................................... 1338
B. Federal Equal Protection Analysis ....................................... 1342
1. Cleburne v. Cleburne Living Center ............................. 1343
2. Additional United States Supreme Court
Jurisprudence ................................................................. 1347
C. Logical Shortfalls to Discriminating Against
Homeschool Students .......................................................... 1350
III. Equitable Standards for Equal Qualifications:
A Proposed Statutory Reform .................................................... 1353
Conclusion .................................................................................. 1354
I
NTRODUCTION: AN UNNECESSARY BURDEN?
What do General Douglas MacArthur, athletes Venus and Serena
Williams, composer John Philip Sousa, and inventor Thomas Edison have
in common? They were all homeschooled.
1
In fact, from the United States’
Copyright 2022, by CHAZ MORGAN.
∗ J.D./D.C.L. candidate 2022, Paul M. Hebert Law Center, Louisiana State
University. To my family, whose support and confidence were invaluable not only
during the writing of this Comment but also throughout law school itself.
1320 LOUISIANA LAW REVIEW [Vol. 82
founding to the present day, a host of highly accomplished Americans
were homeschooled.
2
Homeschoolers have ranged from The Federalist
Papers authors James Madison, Alexander Hamilton, and Chief Justice
John Jay to Justice Sandra Day O’Connor; from eight of the first ten
United States Presidents to Texas A&M University’s President Frank
Vandiver; from Abraham Lincoln to Grammy Award winner Christina
Aguilera; and from Mark Twain to New York Times bestselling author
Christopher Paolini.
3
Homeschool students have excelled in American
society by reaching the highest levels of achievement possible in every
century and in a wide range of fields including law, education, politics, the
military, literature, and music.
Yet in spite of this success, Louisiana law specially burdens—and
even sometimes derails—homeschoolers’ careers at their outset through
differing requirements for Louisiana’s publicly funded state educational
scholarships.
4
Louisiana Revised Statutes § 17:5029(B) requires
Louisiana homeschool students to earn higher ACT scores than public and
private school students to qualify for the same amount of state funding
through the Taylor Opportunity Program for Students (TOPS) under the
guise of equivalence.
5
Specifically, the statute requires homeschool
1. Jessica Parnell, Famous Homeschoolers, BRIDGEWAY ACAD. (Feb. 28,
2019), https://www.homeschoolacademy.com/blog/famous-homeschoolers/#:~:
text=Some%20of%20the%20most%20famous,Theodore%20Roosevelt%2C%20
and%20George%20Washington [https://perma.cc/WA57-TBRM].
2. Judith G. McMullen, Behind Closed Doors: Should States Regulate
Homeschooling?, 54 S.C.
L. REV. 75, 77 (2002); see Christopher Paolini, My
Experience with Homeschooling, P
AOLINI (May 29, 2015), https://www.paolini
.net/2015/05/29/my-experience-with-homeschooling/ [https://perma.cc/2TM3-N
SY7].
3. Sotirios A. Barber, Judicial Review and The Federalist, 55 U.
CHI. L.
REV. 836, 836–37 (1988); Parnell, supra note 1; Christina Yeager,
Homeschooling Hero: Christina Aguilera, H
OMESCHOOLING HEROES (Mar. 22,
2019), https://www.homeschoolingheroes.com/how-to-teach-at-home/homesch
ooling-hero-christina-aguilera [https://perma.cc/B5MJ-2WPX]; Christopher
Paolini, P
AOLINI, https://www.paolini.net/biographies/christopher-paolini-full/
[https://perma.cc/BAP6-GZE8] (last visited Jan. 12, 2021).
4. See L
A. REV. STAT. § 17:5029(B) (2021).
5. Id. The ACT is a standardized, multiple choice examination that tests high
school students’ aptitude in English, reading, mathematics, and science. What Is
the ACT?, T
HE PRINCETON REV., https://www.princetonreview.com/college/act-
information [https://perma.cc/74KV-7MY4] (last visited Oct. 6, 2021); see
Telephone interview with Charles McDonald, former chair of the Louisiana
House Education Committee and the primary author of the original TOPS
legislation (Oct. 21, 2020).
2022] COMMENT 1321
students to score two or more points higher on the ACT for TOPS-Tech
and Opportunity Awards and at least one point higher for Performance and
Honors Awards.
6
Further, the statute does not account for homeschool
students’ grade point averages or core curriculum when determining their
TOPS eligibility,
7
despite the fact that the Louisiana State Board of
Elementary and Secondary Education’s (BESE) certification of
homeschools is contingent on whether the homeschool curriculum equals
or exceeds the public school curriculum.
8
In fact, this BESE certification
effectively validates the homeschool educational process’s legitimacy and
thus its GPAs as well.
9
In other words, while public and private school
students’ GPAs are a factor in the TOPS eligibility determination, a
homeschool student’s GPA carries no weight, regardless of whether BESE
finds the homeschool curriculum to be equal to or more stringent than that
of public and private schools.
10
These differences in TOPS requirements create a serious financial
obstacle for homeschool students planning to attend college which may
even discourage parents from homeschooling and can prevent
homeschoolers from attending college.
11
The failure of a homeschool
student to score one to two points higher on a standardized examination
can mean a difference in receiving hundreds to thousands of state dollars
to assist in funding the student’s college tuition—dollars that the state
would have granted to a public or private school student with the same
score.
12
For instance, if a homeschool student who scored a 21 on the ACT
and a public or private school student who scored a 20 on the ACT both
attend Louisiana State University, the public or private school student with
6. LA. REV. STAT. § 17:5029(B)(3)(b) (2021) (“[T]he student shall have a
composite score . . . which is at least two points higher . . . . [T]he student shall
have a composite score . . . which is at least one point higher . . . .”).
7. Id. § 17:5029(B). This Comment uses the terms core curriculum and core
unit interchangeably.
8. Id. § 17:236(A) (“[A] home study program shall be approved if it offers
a sustained curriculum of a quality at least equal to that offered by public schools
at the same grade level.”).
9. See infra Section II.C.
10. L
A. REV. STAT. §§ 17:5024, 17:5029(B), 17:236(A).
11. See generally TOPS OPH Annual Award Amounts for 2019-20, L
A. OFF.
OF
STUDENT FIN. ASSISTANCE 1, https://www.osfa.la.gov/MainSitePDFs/TOPS_
Payment_Amounts.pdf [https://perma.cc/R93A-8E69] (revised Oct. 25, 2019);
see generally TOPS, L
A. STATE UNIV., https://www.lsu.edu/financialaid/types
_of_scholarships/tops.php [https://perma.cc/7KQY-FTE7] (last visited Oct. 21,
2020).
12. See TOPS OPH Annual Award Amounts for 2019-20, supra note 11, at 1;
TOPS, supra note 11; see generally L
A. REV. STAT. § 17:5029(B).
1322 LOUISIANA LAW REVIEW [Vol. 82
the lower ACT score may be eligible to receive more than $3,700 from the
Opportunity Award each semester, while the homeschool student would
receive nothing.
13
Although the homeschool student scored higher on the
ACT, in order to receive the TOPS Opportunity Award, the homeschool
student must have scored “at least two points higher” on the ACT than the
required score for non-homeschool students, which was a 20 for students
graduating from high school in 2021.
14
The different funding requirements and their financial burdens will
affect more students than ever before in light of COVID-19 and the
significant rise in traditional homeschooling originating in part with the
initial in-person school closures.
15
This rise has validated a recent estimate
that approximately 40% of parents were more likely to homeschool than
they were prior to the original school closures.
16
Yet the current TOPS
13. TOPS, supra note 11; see The TOPS Opportunity Award, LA. OFF. OF
STUDENT FIN. ASSISTANCE, https://mylosfa.la.gov/students-parents/scholarships-
grants/tops/the-tops-opportunity-award/ [https://perma.cc/GAR6-9R53] (last
visited Oct. 13, 2021); see generally L
A. REV. STAT. §§ 17:5024(B)(1)(a),
17:5029(B)(3)(b)(ii) (2021).
14. L
A. REV. STAT. § 17:5029(B)(3)(b)(ii) (2021); The TOPS Opportunity
Award, supra note 13. Students qualifying for the Performance Award receive a
$400 stipend each year in addition to their TOPS tuition award, while students
qualifying for the Honors Award receive an additional $800 stipend each year in
addition to their TOPS tuition award. L
A. REV. STAT. § 17:5002(B)–(C) (2021).
Since homeschool students must score one point higher than public and private
school students on the ACT for the Performance and Honors Awards, it is
necessarily more difficult for them to earn the additional stipend accompanying
those awards. See id. § 17:5029(B)(3)(b)(iii).
15. See Will Sentell, Rise in Louisiana Homeschooling Is Part of a National
Trend. Why Did Some Make the Switch?, A
DVOC. (Feb. 7, 2021),
https://www.theadvocate.com/baton_rouge/news/education/article_fd555ec8-66
6e-11eb-811a-2718453ae042.html [https://perma.cc/4MLG-AVY6] (explaining
that true homeschooling—not mere temporary schooling at home while still
enrolled in a public or private school—has increased nationally by 50 to 100%
since March 2020 and significantly in Louisiana). Likely reasons for this increase
in homeschooling include parental concerns about the virus as well as parental
concerns about public and private schools’ education quality now that parents are
observing firsthand the curriculum and lessons taught through Zoom. Nathan
Harden, COVID-19’s Surprise Effect: More Parents Are Interested in Home
Schooling, R
EALCLEAREDUCATION (May 29, 2020), https://www.realcleared
ucation.com/articles/2020/05/29/covid-19s_surprise_effect_more_parents_are_
interested_in_home_schooling_110425.html [https://perma.cc/J7XQ-VMCM].
16. See Tommy Schultz, National Poll: 40% of Families More Likely to
Homeschool After Lockdowns End, A
M. FED’N FOR CHILD. (May 14, 2020),
2022] COMMENT 1323
standards, which allow public and private school students to receive more
state funding than homeschool students despite having equal or lower
ACT scores, place a significant financial strain upon homeschool students,
whose only distinction from their peers is their status as homeschool
students.
17
This disparate treatment of homeschool students raises questions
concerning equal protection under the Louisiana Constitution of 1974’s
Article 1, § 3 and the United States Constitution, as well as raising
questions about the logic of such a policy. As applied to homeschool
students, both the Louisiana and United States constitutions’ equal
protection provisions preclude the Louisiana Legislature from utilizing
laws to discriminatorily require homeschoolers to score higher than other
students on the standardized ACT for the same amount of state-provided
TOPS funding.
18
Accordingly, the Louisiana Legislature should amend
Louisiana Revised Statutes § 17:5029(B) to require equal ACT scores and
GPA requirements per TOPS award for public, private, and homeschool
students, recognizing the adequacy of homeschool curriculum for TOPS
eligibility.
Part I of this Comment will provide background about homeschooling
in the United States; available statistics concerning public, private, and
homeschool students; information about the passage and intentions of the
original Tuition Opportunity Program for Students and the current Taylor
Opportunity Program for Students; and the constitutional standards for
analyzing the TOPS homeschool criteria’s discrepancy. Part II will
analyze the problems that Louisiana’s homeschool TOPS requirements
create and will consider how these requirements contradict state equal
protection, federal equal protection, and policy-based logical reasoning
provisions and principles. Part III will provide a solution to
constitutionally determining homeschoolers’ TOPS eligibility and will
explain how this new standard reflects a logical policy while not violating
equal protection.
I.
BACKGROUND—HOMESCHOOLING, TOPS, AND CONSTITUTIONAL
STANDARDS
The rich tradition of homeschooling in the United States gave rise to
its present-day success as an educational method. With the institution of
https://www.federationforchildren.org/national-poll-40-of-families-more-likely-
to-homeschool-after-lockdowns-end/ [https://perma.cc/95GT-GHA8].
17. See L
A. REV. STAT. § 17:5029(B)(3)(b) (2021); see generally TOPS OPH
Annual Award Amounts for 2019-20, supra note 11, at 1.
18. See infra Part II.
1324 LOUISIANA LAW REVIEW [Vol. 82
TOPS in Louisiana, a tension has arisen regarding TOPS’s different
requirements for public, private, and homeschool students which can be
resolved via the standards used to assess whether a legislature has
complied with the United States Constitution’s Fourteenth Amendment.
A. Homeschooling in General
Homeschooling was a very common educational method in the
original thirteen colonies during the Colonial Era and in the United States
until the 1900s.
19
After public schools and compulsory-education laws
became mainstream in the early 1900s, homeschooling became less
commonplace.
20
In the last few decades of the 1900s, however,
homeschooling had a rebirth, once again rising to national prominence.
21
Now, it is growing faster than any other method of education in the United
States and is expanding worldwide throughout Asia, Africa, and Europe.
22
A mere two years after the 1997 Louisiana Legislature instituted the
TOPS program, the United States alone had approximately 850,000
homeschoolers.
23
Homeschooling was expanding at an estimated 11% per
year nationally at the turn of the millennium.
24
From 1997 to 2012, the
total number of homeschool students nationwide more than doubled to
approximately 1.8 million students.
25
By spring 2019, approximately 2.5
million students—3% to 4% of United States primary and secondary
education students—were homeschooled, and that number is still
growing.
26
This number of homeschool students is roughly equal to the
19. McMullen, supra note 2, at 76.
20. Id.
21. Id.
22. See Brian D. Ray, Homeschooling: The Research—Research Facts on
Homeschooling, Homeschool Fast Facts, N
AT’L HOME EDUC. RSCH. INST. (Jan. 15,
2021), https://www.nheri.org/research-facts-on-homeschooling/ [https://perma.cc
/8X3T-5832] [hereinafter Ray, Homeschooling: The Research].
23. TOPS Report: Analysis of the TOPS Program from 2009-2018, L
A. BD.
OF
REGENTS 3 (2019), https://regents.la.gov/wp-content/uploads/2019/11/2019-
TOPS-Report-October.pdf [https://perma.cc/W4SF-YJ5D]; Statistics About
Nonpublic Education in the United States, U.S.
DEP’T OF EDUC., https://www2
.ed.gov/about/offices/list/oii/nonpublic/statistics.html#homeschl [https://perma.c
c/JLF8-RFX7] (last modified Dec. 2, 2016).
24. John Cloud & Jodie Morse, Home Sweet School, T
IME (Aug. 27, 2001),
http://content.time.com/time/subscriber/article/0,33009,1000631-3,00.html
[https://perma.cc/M3UC-9R2W].
25. Statistics About Nonpublic Education in the United States, supra note 23.
26. Ray, Homeschooling: The Research, supra note 22; see generally Brian
D. Ray, A Systematic Review of the Empirical Research on Selected Aspects of
2022] COMMENT 1325
number of students attending parochial schools and also to the number of
students attending public charter schools.
27
As of October 2020, Louisiana
had a total of 33,001 homeschool students, composing 5% of Louisiana’s
pre-college students.
28
This number represents a 76% increase in
Louisiana homeschool students over the past ten years.
29
In 2019, a total
of 13,672 Louisiana students were homeschooled under BESE
authorization, one of two methods authorizing homeschooling in
Louisiana and the method by which students can be eligible for TOPS.
30
That number grew to 15,107 students in 2020.
31
Several factors have contributed to homeschooling’s rebirth, including
parents’ desires to improve their children’s education, remove them from
overcrowded classes, create a more structured learning environment, and
instill religious values in addition to secular knowledge in their children.
32
For instance, according to a 1999 United States Department of Education
survey, the parents of nearly 49% of United States homeschool students
explained that one of the reasons they homeschooled was to give their
children a better education than their children otherwise would have
received at a public or private school.
33
The term homeschooling includes
a range of variations, from modern-day students studying at their homes
or attending cooperatives (co-ops) to individuals in history receiving a
private education at their homes due to the inaccessibility of public
schools; however, the principle of receiving an education at home without
attending a public or private school has remained constant.
34
In the
modern-day TOPS context, homeschooling generally encompasses
students who attend school at home or co-ops in lieu of attending
accessible public and private schools.
35
Homeschooling as a School Choice, 11 J. SCH. CHOICE 604, 604–05 (2017)
[hereinafter Ray, A Systematic Review].
27. Ray, A Systematic Review, supra note 26, at 605.
28. Sentell, supra note 15.
29. Id.
30. Id.
31. Id.
32. McMullen, supra note 2, at 77–78.
33. Stacey Bielick et al., Homeschooling in the United States: 1999, N
AT’L
CTR. FOR EDUC. STATISTICS 11 tbl.4 (2001), https://nces.ed.gov/pubs2001/
2001033.pdf [https://perma.cc/L2PP-3HNR].
34. See generally McMullen, supra note 2, at 76–78. A co-op is a collective
of homeschool students taking classes at a location together as a group instead of
solely by themselves at their respective houses.
35. See generally id.
1326 LOUISIANA LAW REVIEW [Vol. 82
1. Homeschoolers’ Academic Performance
Statistics demonstrate that homeschool students consistently excel
academically when compared to public and private school students.
36
In
2000, right after TOPS’s inception, homeschool students’ average SAT
score was 1100 compared to the general population’s average score of
1019.
37
Another study demonstrates that today, homeschoolers “typically
score 15 to 30 percentile points above public-school students on
standardized academic achievement tests” and “above average on the SAT
and ACT.”
38
In 1998, the year the TOPS program first began providing
Louisiana college students with financial assistance,
39
homeschool
students’ median scores on the Iowa Test of Basic Skills and the Tests of
Achievement and Proficiency ranged from the 62nd to the 91st percentile
of public school students, with the main concentration ranging from the
75th to the 85th percentile.
40
Homeschool students’ median scores on
these tests ranged from the 53rd to the 89th percentile compared to private
school students, with the main concentration ranging from the 65th to the
75th percentile.
41
Homeschool students also demonstrated a higher grade-
to-grade score increase compared to public school students, and
homeschool students’ median scores outscored the public and private
school median scores in every grade from K–12 as well as in every subject
tested.
42
Based on homeschool students’ success, Harvard University started
intentionally sending admissions officers to homeschool conferences to
recruit these students, and Rice and Stanford Universities began admitting
36. See infra Section I.A.1.
37. Cloud & Morse, supra note 24.
38. Ray, Homeschooling: The Research, supra note 22.
39. TOPS Report: Analysis of the TOPS Program from 2009-2018, supra
note 23, at 3.
40. Lawrence M. Rudner, Scholastic Achievement and Demographic
Characteristics of Home School Students in 1998, 7 E
DUC. POL’Y ANALYSIS
ARCHIVES 1, 16 (1999). The Tests of Achievement and Proficiency evaluates the
academic skills high school students utilize to academically develop. Id. at 3. The
Iowa Test of Basic Skills is a standardized examination that measures students’
aptitude and yearly progress to ensure students maintain appropriate progress
from kindergarten through the eighth grade. Erin Hasinger, ITBS Guide,
T
ESTS.COM, https://www.tests.com/ITBS-Testing#:~:text=The%20Iowa%20Test
%20of%20Basic,specifically%20for%20different%20grade%20levels.&text=Ap
proximately%2030%20minutes%20are%20given,given%20to%20children%20i
n%20kindergarten [https://perma.cc/PLB7-BEDA] (last updated 2021).
41. Rudner, supra note 40, at 16.
42. Id.
2022] COMMENT 1327
homeschool students at a rate “equal to or higher than” the rate at which
they admitted public school students around the year 2000.
43
In light of
the evidence demonstrating homeschool academic qualifications,
homeschool students have the same chance of admission to Ivy League
universities as public school students.
44
Also, as reported in a recent NBC
News article, homeschool students’ college applications frequently stand
out from the rest of the applications, and according to one college dean of
admissions, homeschool students often bring innovative thinking skills to
their respective universities.
45
Furthermore, diverse segments of society excel in the homeschooling
process.
46
For instance, approximately 41% of homeschool students are
minorities, with African-American homeschool students averaging 23% to
42% higher on standardized academic achievement tests than African-
American public school students.
47
Holistically, homeschool students on
average rank in the 65th to 80th academic percentile nationally on
standardized tests compared to public school students who on average rank
at the 50th percentile.
48
Finally, a study by University of Minnesota researchers found that
homeschool students’ standardized test scores directly correlate with those
students’ college retention rates and with their GPAs during their first two
semesters of college.
49
On average, homeschool students had higher
college GPAs after their freshman year of college compared to a societal
cross section of public and private school students.
50
Homeschool
students, on average, also had higher high school GPAs than those
students.
51
Accordingly, statistics spanning decades from TOPS’s
43. Cloud & Morse, supra note 24.
44. Tara Kunesh, Statistics on Public School vs. Homeschool, L
OVE TO
KNOW, https://home-school.lovetoknow.com/Statistics_on_Public_School_Vs_
Homeschooling [https://perma.cc/ES85-4UHD] (last visited Sept. 30, 2020).
45. See Allison Slater Tate, Colleges Welcome Growing Number of
Homeschooled Students, NBC
NEWS (Feb. 17, 2016, 12:37 PM ET), https://www
.nbcnews.com/feature/college-game-plan/colleges-welcome-growing-number-ho
meschooled-students-n520126 [https://perma.cc/CEF3-9YDB].
46. See generally Ray, Homeschooling: The Research, supra note 22.
47. See id.
48. Brian D. Ray, Academic Achievement and Demographic Traits of
Homeschool Students: A Nationwide Study, 8 A
CAD. LEADERSHIP: ONLINE J. 1, 2
(2010).
49. Martin C. Yu, Paul R. Sackett & Nathan R. Kuncel, Predicting College
Performance of Homeschooled Versus Traditional Students, 35 E
DUC.
MEASUREMENT: ISSUES & PRAC. 31, 37–38 (2016).
50. Id. at 33, 34 tbls.1, 2 & 3.
51. Id. at 33, 34 tbls.1, 2 & 3.
1328 LOUISIANA LAW REVIEW [Vol. 82
inception to the present day indicate that homeschool students on average
score higher on standardized tests and have higher GPAs than cross
sections of public and private school students.
2. The Homeschool Stigma
Despite the evidence that homeschool students on average
consistently outperform their public and private school counterparts, the
homeschool minority frequently faces discrimination from society,
ranging from a general dislike or perception of homeschooling’s
inferiority to legal action taken to restrict homeschooling.
52
For instance,
the National Education Association (NEA), which has been called the
most powerful and largest union in the United States, repeatedly attempts
to influence legislatures across the country to regulate homeschooling in
their jurisdictions.
53
In fact, the NEA’s own platform explicitly states that
it views homeschooling as incapable of “provid[ing] the student with a
comprehensive education experience.”
54
The NEA has translated its views
into action by officially advocating for homeschooling’s abolition each
year since 1988.
55
Similarly, the legal community frequently endeavors to place more
stringent restrictions on homeschooling through advocacy in various
academic journals.
56
For example, a recent challenge to homeschooling
came from Harvard Law Professor Elizabeth Bartholet in which she
argued for a presumptive ban on homeschooling.
57
According to Professor
Bartholet, the ban is necessary because homeschooling stunts both
students’ academic development and their ability to contribute to society’s
52. See generally GarySixNoine, People Who Homeschool Their Kids Are
Ridiculous, R
EDDIT (Oct. 17, 2018), https://www.reddit.com/r/unpopular
opinion/comments/9oxwaw/people_who_homeschool_their_kids_are_ridiculous
/ [https://perma.cc/JZ57-ZGH2]; Dana Goldstein, Liberals, Don’t Homeschool
Your Kids, S
LATE (Feb. 16, 2012, 7:10 AM), https://slate.com/human-interest/
2012/02/homeschooling-and-unschooling-among-liberals-and-progressives.html
[https://perma.cc/2GEY-EPK4]; Billy Gage Raley, Safe at Home: Establishing a
Fundamental Right to Homeschooling, 2017 BYU
EDUC. & L. J. 59, 60, 60 n.10
(2017).
53. Raley, supra note 52, at 60.
54. Id. at 60 n.9.
55. Id. at 60 n.10.
56. Id. at 60–61, 60 n.12.
57. Elizabeth Bartholet, Homeschooling: Parent Rights Absolutism vs. Child
Rights to Education & Protection, 62 A
RIZ. L. REV. 1, 57 (2020).
2022] COMMENT 1329
civic existence.
58
Relatedly, homeschool students face a stigma throughout
the media and society as well.
59
B. Louisiana’s TOPS Program
In 1989, the Louisiana Legislature passed the Louisiana College
Tuition Plan to provide financial assistance to Louisiana students.
60
The
Louisiana Legislature subsequently created the Tuition Opportunity
Program for Students during the 1997 legislative session, later renaming
it the Taylor Opportunity Program for Students—the modern-day TOPS.
61
TOPS began providing Louisiana college students with financial
assistance at the start of the 1998 academic year.
62
The program currently
applies not only to Louisiana public universities but also to technical and
community colleges, some proprietary schools, and private colleges in
Louisiana.
63
Since its inception, the legislature has amended the TOPS
program numerous times, including reorganizing and recodifying the
58. Id. at 4. Harvard Magazine subsequently published an article favorably
discussing Professor Bartholet’s paper and its assertion that homeschooling
promotes academic and social inferiority in homeschool students. The illustration
at the top of the article depicts a homeschool child inside a house with barred
windows looking out at the children who are free to play outside. Four books—
the Bible, Arithmetic, Writing, and Reading—form one of the “prison” walls. Erin
O’Donnell, The Risks of Homeschooling, H
ARV. MAG. (June 2020),
https://harvardmagazine.com/2020/05/right-now-risks-homeschooling
[https://perma.cc/62MH-VWP2]. Ironically, Harvard Magazine accidentally
misspelled arithmetic when it initially released the article before quickly
correcting the spelling error. See Virginia Kruta, Harvard Smart People Misspell
“Arithmetic” While Advocating “Ban” on Homeschooling, D
AILY CALLER (Apr.
19, 2020, 12:42 PM ET), https://dailycaller.com/2020/04/19/harvard-magazine-
misspells-arithmetic-ban-homeschooling/ [https://perma.cc/LY4X-E47Q].
59. Mean Girls—Homeschooled, Y
OUTUBE (Oct. 30, 2010), https://www
.youtube.com/watch?v=scxdTXrfni0 [https://perma.cc/N8HY-H2RP] (showing a
scene from the movie Mean Girls depicting homeschoolers as socially awkward
and referring to them as “weirdly religious” and “freaks”); see Goldstein, supra
note 52 (arguing against homeschooling by asserting it negatively affects
homeschool students’ social views and hinders students remaining in public
schools).
60. Leigh Guidry, TOPS Is Turning 20; What Now?, D
AILY ADVERTISER
(May 30, 2017), https://www.theadvertiser.com/story/news/local/education/201
7/05/30/tops-turning-20-what-now/348809001/ [https://perma.cc/M9KB-ZFS6].
61. TOPS Report: Analysis of the TOPS Program from 2009-2018, supra
note 23, at 3.
62. Id.
63. Guidry, supra note 60.
1330 LOUISIANA LAW REVIEW [Vol. 82
program in Louisiana Revised Statutes §§ 17:5001–5122 in 2015 to clarify
its requirements.
64
Despite the changes, the program has always served the same
commendable purpose of providing monetary assistance to students.
65
The
program has helped hundreds of thousands of students attend college over
the years.
66
TOPS aid eligibility is not contingent on household income
but rather hinges upon students’ academic performance.
67
Originally, the
minimum academic standard to receive TOPS required students to possess
a 2.5 GPA, have an ACT score equal to or above the ACT’s national
average, and take certain classes.
68
According to “the father of TOPS”
Charles McDonald—the primary author of the 1997 TOPS bill, former
chair of the Louisiana House Education Committee, and current Louisiana
Board of Regents member—one of the Louisiana Legislature’s primary
desires was “that everybody participate” in the program and that students
“pulling the grades deserved the scholarship.”
69
Furthermore, McDonald
stated, “The ACT is the only criteria or standard we can compare across
the board.”
70
In addition to initial high school GPA, ACT, and core
curriculum requirements,
71
TOPS eligibility requires recipients to be full-
time college students, earn a minimum of 24 credit hours each academic
year, and meet a cumulative TOPS GPA requirement during college.
72
Moreover, TOPS has additional requirements that apply to all students,
including citizenship and residency requirements.
73
TOPS provides four types of awards to students—TOPS-Tech,
Opportunity, Performance, and Honors—with the higher awards requiring
higher high school GPAs and ACT scores.
74
Regarding the ACT score
64. TOPS Report: Analysis of the TOPS Program from 2009–2018, supra
note 23, at 5.
65. Id. at 3.
66. Guidry, supra note 60.
67. Id.
68. Id. (Examples of the required courses include physics and chemistry.).
69. Id.
70. Id.
71. Louisiana Revised Statutes § 17:5025 requires students to take certain
classes to be eligible for TOPS, including broad requirements such as four units
of social studies as well as specific requirements including English I, English II,
and Biology I.
LA. REV. STAT. § 17:5025 (2021).
72. TOPS Report: Analysis of the TOPS Program from 2009-2018, supra
note 23, at 9.
73. L
A. REV. STAT. § 17:5022 (2021); Id. § 17:5023 (Nearly all students must
have resided in Louisiana for the two years prior to their high school graduation.).
74. TOPS Report: Analysis of the TOPS Program from 2009-2018, supra
note 23, at 8–9.
2022] COMMENT 1331
requirement, the following specific requirements apply for most public
and private school students. The primary method students use to receive
the TOPS-Tech Award requires a composite score of 17 or higher on the
ACT or an equivalent score on the SAT.
75
The Opportunity Award
requires a composite ACT score “at least equal to or higher than the state’s
average composite score, truncated to a whole number, reported for the
prior year but never less than twenty or an equivalent concordant value”
for the SAT.
76
In 2021, the required score was a 20.
77
The Performance
Award requires a minimum ACT composite score of 23 or a comparable
SAT score.
78
Finally, the Honors Award requires a minimum ACT
composite score of 27 or a comparable SAT score.
79
The Louisiana Legislature created more stringent requirements for
Louisiana homeschool students to receive TOPS funding compared to
those of Louisiana public and private school students. Specifically,
Louisiana Revised Statutes § 17:5029(B)(3) requires homeschool students
to earn at least two points higher on the ACT for TOPS-Tech and
Opportunity Awards and at least one point higher on the ACT for the
Performance and Honors Awards.
80
Thus, in 2020, homeschool students
seeking to qualify for the Opportunity Award needed to earn a 22 on the
ACT instead of a 20 like their public or private school counterparts, a 24
instead of a 23 for the Performance Award, and a 28 instead of a 27 for the
Honors Award.
81
Regarding the high school GPA requirement, the Louisiana Revised
Statutes’ standards for recent graduates currently require a 2.5 minimum
cumulative GPA for the TOPS-Tech and Opportunity awards
82
and a 3.0
minimum cumulative GPA for the Performance and Honors awards.
83
By
contrast, the legislature does not consider homeschool GPAs or core
75. LA. REV. STAT. § 17:5024(B)(1)(d) (2021) (The other method utilizes the
ACT WorkKeys system.).
76. Id.
§ 17:5024(B)(1)(a).
77. The TOPS Opportunity Award, supra note 13.
78. L
A. REV. STAT. § 17:5024(B)(1)(b) (2021).
79. Id.
§ 17:5024(B)(1)(c).
80. Id. §
17:5029(B)(3)(b)(ii)–(iii).
81. The TOPS Opportunity Award, supra note 13; The TOPS Performance
Award, L
A. OFF. OF STUDENT FIN. ASSISTANCE, https://mylosfa.la.gov/students-
parents/scholarships-grants/tops/the-tops-performance-award/
[https://perma.cc/5L4R-MP9A] (last visited Nov. 15, 2020); The TOPS Honors
Award, L
A. OFF. OF STUDENT FIN. ASSISTANCE, https://mylosfa.la.gov/students-
parents/scholarships-grants/tops/the-tops-honors-award/ [https://perma.cc/532P-
ZGV4] (last visited Nov. 15, 2020).
82. L
A. REV. STAT. § 17:5024(A)(1)–(2) (2021).
83. Id. § 17:5024(A)(2)(c)(ii)–(iii).
1332 LOUISIANA LAW REVIEW [Vol. 82
curriculum.
84
Since many students—regardless of their public, private, or
homeschool background—struggle on the ACT and other standardized
tests in spite of their specific pre-test preparation, the requirement for a
GPA with a lower ACT score is actually easier for many students to
achieve as opposed to a higher ACT score with no GPA.
85
This higher ACT score requirement causes tangible, harmful financial
repercussions for homeschool students and their families.
86
Each year,
numerous homeschool students across Louisiana either do not receive
TOPS at all or receive a lower award than they would have otherwise
received if they were under the public and private school GPA and ACT
requirements.
87
For example, two recent homeschool graduates each
scored a 21 on the ACT—one point higher than what public and private
school students must score for the TOPS Opportunity Award—and had
qualifying high school GPAs according to public and private school
standards, yet neither student received any TOPS aid because
§ 17:5029(B)(3) required the students to score a 22 to be eligible for the
TOPS Opportunity Award.
88
Another recent homeschool graduate scored
a 23 on the ACT—the public and private school requirement for the
Performance Award—but was denied the Performance Award and its
$400 yearly stipend because as a homeschooler the student needed to score
a 24.
89
Over the last several years, an estimated 15 to 20 students from one
Baton Rouge co-op alone have not received TOPS awards that they would
84. Id. § 17:5029(B).
85. See Christine Sarikas, Are You Smart but Scoring Low on the SAT/ACT?
What To Do, P
REPSCHOLAR (Nov. 10, 2015), https://blog.prepscholar.com/smart-
but-scoring-low-on-sat-act-what-to-do [https://perma.cc/6MMF-TCK2] (“It’s
possible, and even fairly common, for [students] to put in a significant amount of
time studying for a standardized test and still not get the score [they] want.”) (bold
type removed); Intensive ACT Test Prep During Class Leads to Lower Scores;
Students Don’t Connect Grades, Study Habits to Exam Scores, UC
HICAGO NEWS
(May 27, 2008), https://news.uchicago.edu/story/intensive-act-test-prep-during-
class-leads-lower-scores [https://perma.cc/6X9T-LZPM]; 3 Reasons Students
Score Low On The ACT Test And What To Do About It, T
EST PREP TOOLKIT,
https://www.testpreptoolkit.com/act-test/3-reasons-students-fail-their-act-test-
and-how-to-resolve-them [https://perma.cc/TV3V-4ZVX] (last visited Nov. 10,
2020) (“It is common for many students to get a low score on a standardized test,
although they have studied enough for it.”).
86. Telephone interview with Duane Drummond, homeschool parent (Nov.
11, 2020).
87. See id.
88. Id.; telephone interview with Virginia Conner, homeschool parent (Nov.
11, 2020); see L
A. REV. STAT. § 17:5029(B)(3) (2021).
89. Telephone interview with Duane Drummond, supra note 86.
2022] COMMENT 1333
have received under equal GPA and ACT standards, resulting in the
wholesale exclusion from the scholarship in some cases and a reduced
award compared to their public and private school peers in others.
90
Extrapolated across all homeschool graduates throughout the entire state
of Louisiana, the number of homeschool students negatively affected by
TOPS’s differing standards every year since the program’s inception in
1997 is significant and will continue to increase each year unless the
Louisiana Legislature adjusts TOPS’s standards.
91
The Louisiana Legislature’s purpose in establishing academic
qualifications—namely GPA, core unit, and ACT requirements—for
students to receive TOPS awards was to preserve state funds from being
unnecessarily disbursed to academically unqualified students.
92
At the
time of TOPS’s enactment, the legislature did not consider homeschool
GPAs to be “credible” since homeschool parents—as teachers—grade
their own children’s work.
93
Thus, to offset the alleged lack of legitimate
grades and to address a fear that homeschool GPAs would create
unreasonable and unfair competition against public and private school
students, the legislature raised the ACT requirement for homeschool
students to qualify for any given award and eliminated the GPA
requirement.
94
The Louisiana Legislature chose to rely upon the ACT
since the ACT is a standardized test with results that depend solely upon a
student’s academic prowess rather than on perceived inappropriate
assistance or biased grade adjustments.
95
Accordingly, the legislature
viewed a homeschool student with a higher ACT score to be academically
qualified in the same way as a public or private school student with a lower
ACT score.
96
Regarding the core unit requirement, the legislature instituted this
curricular requirement to ensure that students earning TOPS were prepared
for college by already succeeding in academically rigorous courses while
in high school.
97
Because the legislature distrusted homeschool
90. Id.
91. See id.
92. The legislative history concerning TOPS’s GPA, ACT, and core unit
requirements is not generally available. However, Charles McDonald, former
chair of the Louisiana House Education Committee and the primary author of the
original TOPS legislation, provided the information via interview. McDonald,
supra note 5.
93. Id.
94. Id.
95. Id.
96. See id.
97. Id.
1334 LOUISIANA LAW REVIEW [Vol. 82
coursework’s academic rigor, the state required homeschool students to
earn higher ACT scores in lieu of requiring specific core units.
98
However,
BESE, under Louisiana Revised Statutes § 17:236(A), only certifies home
study programs—a requirement for homeschool students to receive
TOPS—when BESE determines that a particular homeschool “offers a
sustained curriculum of a quality at least equal to that offered by public
schools at the same grade level,”
99
creating a stark legislative contrast
between the TOPS program and § 17:236.
Based upon their state-approved curriculum, homeschool students
earn accurate GPAs for their high school careers.
100
Although grading
processes differ per homeschool, homeschool students generally earn their
GPAs based upon objective numerical grading scales that convert their
letter grades derived from actual quiz and test scores to a reliable GPA
scale.
101
The letter grades themselves often result from a grading system
that objectively assigns a certain value of points for each answer with
wrong answers automatically subtracting the missed points from the total
score of 100, thereby removing subjectivity from the grading process.
102
Essentially, this type of system focuses on the actual objective numbers
based on a particular student’s performance rather than on a teacher’s
subjective views.
103
C. Constitutional Standards for Analyzing Legislation
Constitutional analytical standards provide frameworks by which
courts analyze legislation to determine whether a discriminatory law
actually violates a state constitution or the federal constitution.
Discriminatory state legislation requires an equal protection analysis under
both state and federal constitutional provisions to determine the
legislation’s constitutionality according to equal protection principles. The
Fourteenth Amendment of the United States Constitution explicitly
98. Id.
99. L
A. REV. STAT. §§ 17:236(A), 17:5029(B)(1) (2021).
100. See How to Calculate GPA for your Homeschooler, T
HE WRITE FOUND.
(2021), https://thewritefoundation.org/articles/how-to-calculate-gpa/#:~:text=Y
ou%20should%20award%20either%201,This%20is%20the%20yearly%20GPA
[https://perma.cc/QB7K-PT77].
101. See id. (describing one calculation method for this process).
102. See Administering/Grading,
ABEKA (2021), https://athome.abeka.com/
help/gradingfaqs.aspx [https://perma.cc/FN6J-TZGZ].
103. See generally id.; How to Calculate GPA for your Homeschooler, supra
note 100. For a further discussion of and resolution regarding homeschool GPA
reliability and legislative consistency, see infra Section II.C.
2022] COMMENT 1335
provides protection against state violations of equal protection and due
process.
104
The Fifth Amendment explicitly provides protection against
federal due process violations and implicitly protects against equal
protection violations.
105
Accordingly, the Fifth Amendment equal
protection analysis follows the same pattern as the Fourteenth Amendment
equal protection analysis.
106
Overall, the equal protection analysis utilizes
three analytical methods to determine the validity of discriminatory
legislation—strict scrutiny, intermediate scrutiny, and rational basis
scrutiny.
107
Strict scrutiny is the standard protecting fundamental rights, and it is
also the standard used to evaluate laws promoting governmental racial
discrimination and discrimination against other suspect classifications
such as religion or national origin.
108
To pass strict scrutiny, a law must be
narrowly tailored while furthering a compelling government interest.
109
By contrast, intermediate scrutiny is the middle level of scrutiny that
measures whether the law or governmental conduct closely relates to an
important governmental interest.
110
For example, gender discrimination is
analyzed under the intermediate scrutiny standard.
111
Rational basis, also
known as reasonable relation, is the lowest level of scrutiny and requires
that the law have a rational basis or be reasonably or rationally related to
the state’s legitimate interest in order for the law to be valid.
112
The
rational basis standard serves as the catch-all for everything not included
under strict or intermediate scrutiny.
113
Yet these three standards are inherently malleable, shifting in their
application from case to case rather than automatically applying in the
exact same fashion for each case. For instance, in Eisenstadt v. Baird, a
decision that has been cited by courts in over one thousand opinions and
104. U.S. CONST. amend. XIV.
105. U.S.
CONST. amend. V; Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
204 (1995).
106. Buckley v. Valeo, 424 U.S. 1, 93 (1976).
107. Anita K. Blair, Constitutional Equal Protection, Strict Scrutiny, and the
Politics of Marriage Law, 47 C
ATH. U. L. REV. 1231, 1241 (1998).
108. Raley, supra note 52, at 61; Adarand Constructors, 515 U.S. at 227;
Levels of Scrutiny Under the Equal Protection Clause, E
XPLORING CONST.
CONFLICTS, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm
[https://perma.cc/K3GY-3E7U] (last visited Nov. 10, 2020).
109. Adarand Constructors, 515 U.S. at 227.
110. Craig v. Boren, 429 U.S. 190, 199–200 (1976).
111. Id. at 197.
112. Thomas B. Nachbar, The Rationality of Rational Basis Review, 102 V
A.
L. REV. 1627, 1629 (2016).
113. See id.
1336 LOUISIANA LAW REVIEW [Vol. 82
has been cited by the highest courts of every United States jurisdiction,
114
the United States Supreme Court utilized a “more searching” approach to
rational basis concerning an equal protection question.
115
This approach is
known as “rational basis with bite” and permits courts to still strike down
laws that reasonably relate to a legislature’s legitimate interest, in contrast
to ordinary rational basis review.
116
In Eisenstadt, the Court stated that it
applied the normal rational basis standard in its analysis, yet the Court
actually imposed a much stricter application of the standard than in
traditional rational basis cases.
117
Under this more searching methodology,
the Court found a state law restricting the distribution of contraception
unconstitutional in spite of the state’s potential arguments that the law had
a rational intent to protect societal health and morals.
118
In fact, the Court
disregarded what it considered to be the law’s “superficial” purposes and
utilized this more searching scrutiny to determine what it found to be the
statute’s real purpose and declare it unconstitutional.
119
In doing so, the
Court enhanced future courts’ flexibility to strike down seemingly rational
laws.
120
Rather than utilizing the more stringent strict scrutiny standard
traditionally used in race-discrimination cases, the Supreme Court
similarly employed a more searching rational basis review in Bolling v.
Sharpe, where it found that there was not a rational basis to permit racial
segregation in Washington, D.C., schools.
121
In fact, today the Supreme
114. Every United States circuit court of appeals, every state’s highest court,
and the highest courts of Puerto Rico and Washington, D.C. have cited Eisenstadt.
See Roy Lucas, New Historical Insights on the Curious Case of Baird v.
Eisenstadt, 9 R
OGER WILLIAMS U. L. REV. 9, 43, 43 nn.143–44 (2003).
115. N
OAH FELDMAN & KATHLEEN SULLIVAN, CONSTITUTIONAL LAW 519
(Saul Levmore et al. eds., 20th ed. 2019).
116. Rational Basis Test with “Bite,” E
XPLORING CONST. CONFLICTS,
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rationalbasiswbite.htm
[https://perma.cc/3XKN-QZHX] (last visited Sept. 28, 2020).
117. See Eisenstadt v. Baird, 405 U.S. 438, 442–43, 447 n.7, 447–53 (1972).
118. Id. at 442, 454–55.
119. Id. at 452, 455.
120. See, e.g., Plyler v. Doe, 457 U.S. 202 (1982); City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432 (1985); Romer v. Evans, 517 U.S. 620 (1996).
121. Bolling v. Sharpe, 347 U.S. 497, 498–500 (1954) (applying the standard
in a similar fashion as equal protection analysis to the Fifth Amendment’s Due
Process Clause while additionally indicating that equal protection principles are
implicit within the amendment). Some scholars believe Bolling stands for strict
scrutiny rather than rational basis review. Gregory Dolin, Resolving the Original
Sin of Bolling v. Sharpe, 44 S
ETON HALL L. REV. 749, 760 (2014). However,
Bolling’s use of the phrase “reasonably related” in regard to the lack of any
2022] COMMENT 1337
Court continues to utilize the rational basis with bite standard, as displayed
in Bolling, when a plaintiff evoking the Court’s sympathy possesses a
particularly strong interest against state discrimination.
122
In these cases,
the Court weighs the substantial harm individual plaintiffs will face
against a state’s interest in passing the law.
123
Hence, courts do not require
the implication of fundamental rights or suspect classes to invoke the
elevated rational basis inquiry.
124
Furthermore, in Romer v. Evans, a case
concerning alleged discrimination against homosexual individuals as a
“class of persons” and a singled-out “named group” facing a “special
disability upon” them,
125
the Court also used the rational basis test in such
a heightened form that the methodology, according to Justice Scalia’s
dissent, found “no support in law or logic.”
126
The law in question was a
state constitutional amendment that prohibited Colorado’s government
from using official state action to grant homosexuality a special protected
status in discrimination cases.
127
The majority in Romer found no
legitimate state purpose—rational basis’s second prong—to impose
Colorado’s “classification of persons” on the distinct body, homosexuals,
that the majority claimed faced discrimination via the amendment.
128
According to the Court, even if Colorado had a legitimate purpose, its
means were too narrow to pass constitutional muster because the
amendment at issue singled out individuals based upon a “single trait”
before precluding them from equal protection.
129
The Court’s analysis
further buttressed the power of rational basis with bite.
Finally, in Carey v. Population Services International, the Supreme
Court allegedly applied a strict scrutiny standard of review in affirming
the lower court’s holding that a New York law barring the sale or
distribution of contraceptives to minors under 16 years old was
appropriate governmental goal actually directly connects its analysis to rational
basis review since rational basis review consistently utilizes that language or a
similar phrase, such as “rationally related,” throughout its analysis. Bolling, 347
U.S. at 500; see Levels of Scrutiny Under the Equal Protection Clause, supra note
108. This “reasonable relation” language harkens to the ratcheted-up rational basis
review the Court sometimes uses, and regardless of the standard of scrutiny, the
language shows that the lack of a reasonable relation to appropriate governmental
objectives in Bolling was unconstitutional. Bolling, 347 U.S. at 500.
122. Rational Basis Test with “Bite,” supra note 116.
123. Id.
124. Id.
125. Romer, 517 U.S. at 631–33.
126. Id. at 637, 640 (Scalia, J., dissenting).
127. Id. at 623–24 (majority opinion).
128. Id. at 635.
129. Id. at 621.
1338 LOUISIANA LAW REVIEW [Vol. 82
unconstitutional.
130
In practice, however, the Court’s strict scrutiny review
resembled its rational basis analysis in Eisenstadt.
131
Consequently, Carey
again represented the repeated confluence among the standards and the
strength that courts can attribute to rational basis scrutiny.
Hence, the case law reveals that rational basis can be very searching
and has teeth to tear down laws in spite of being the lowest level of
scrutiny, all while encompassing a broad and changeable spectrum of
constitutional claims. The cases also indicate that the use of the standards
themselves by courts is exceedingly flexible. This searching flexibility
permits courts to more frequently find that laws violate rational basis via
the rational basis with bite method than was traditionally understood,
including in the homeschooling context.
II.
ARGUMENTS AGAINST HOMESCHOOL DISCRIMINATION
The constitutional analytical frameworks apply specifically to the
question of whether Louisiana Revised Statutes § 17:5029(B), which
requires homeschool students to score higher on the ACT than public and
private school students, violates the Constitution. A logical inquiry about
the discrimination’s validity illuminates whether or not TOPS’s
homeschool requirements are appropriate from a policy perspective.
A. State Equal Protection Analysis
All states must provide the minimum protection required by the United
States Constitution; however, states can provide additional protection
beyond the Constitution’s standards.
132
Like the federal Constitution,
under the Louisiana Constitution “[n]o person shall be denied the equal
protection of the laws.”
133
Yet Louisiana did not intend “solely to mimic
the federal Equal Protection clause” with this provision but instead desired
to provide stronger equal protection guarantees.
134
Therefore, Louisiana
courts interpret the state equal protection guarantee more broadly than they
130. Carey v. Population Servs. Int’l, 431 U.S. 678, 681–82, 686 (1977).
131. See Patricia A. Olah, The “Squeal” Rule and a Minor’s Right to Privacy,
12 H
OFSTRA L. REV. 497, 510–11 (1984).
132. William J. Brennan, Jr., State Constitutions and the Protection of
Individual Rights, 90 H
ARV. L. REV. 489, 490–91 (1977).
133. L
A. CONST. art. 1, § 3.
134. John Devlin, Louisiana Constitutional Law, 54 L
A. L. REV. 683, 716, 716
n.135 (1994).
2022] COMMENT 1339
interpret the United States Constitution’s equal protection guarantee.
135
They do so by relying upon the Louisiana Supreme Court case Sibley v.
Board of Supervisors of Louisiana State University, in which the court
rejected the federal methods of scrutiny and adopted its own somewhat
similar interpretive frameworks.
136
The Louisiana Supreme Court in
Sibley extended the rational basis standard used in education cases to
prohibit more state action and thereby provide more extensive
constitutional protections to individuals than the United States
Constitution’s rational basis standard provides.
137
According to Sibley, Louisiana recognizes three types of classes with
decreasing levels of protection when dealing with equal protection
questions.
138
First, laws classifying individuals based upon religion or race
are “repudiated completely.”
139
Secondly, laws classifying people based
on “birth, age, sex, culture, physical condition, or political ideas or
affiliations” violate state equal protection “unless the state or other
advocate of the classification shows that the classification has a reasonable
basis.”
140
Lastly, laws classifying people “on any other basis . . . [are]
rejected whenever a member of a disadvantaged class shows that it does
not suitably further any appropriate state interest.”
141
Because “any other
basis” qualifies as a way to create legal classifications in Louisiana, a law
delineating individuals solely on the basis of being a homeschooler, as
done in § 17:5029(B), creates a classification under Sibley’s third tier.
142
Louisiana homeschool students are disadvantaged by § 17:5029(B).
143
Therefore, under Louisiana law, this homeschool classification must face
evaluation to see if it “suitably further[s] any appropriate state interest”
that would then make it valid.
144
Successful Sibley challenges under the third standard thus depend
upon showing that the state interest was inappropriate or that the law in
135. See Sibley v. Bd. of Supervisors of La. State Univ., 477 So. 2d 1094,
1104, 1107–08 (La. 1985); Michael Lester Berry Jr., Equal Protection - The
Louisiana Experience in Departing from Generally Accepted Federal Analysis,
49 L
A. L. REV. 903, 914 (1989).
136. See Sibley, 477 So. 2d at 1104, 1107–08.
137. Berry, supra note 135, at 914; see supra Section I.C.
138. Sibley, 477 So. 2d at 1107.
139. Id.
140. Id.
141. Id. at 1107–08
142. See id.; L
A. REV. STAT. § 17:5029(B) (2021); see Oliver v. Magnolia
Clinic, 85 So. 3d 39, 44 (La. 2012).
143. See supra Section I.B.
144. See Sibley, 477 So. 2d at 1107–08; see Oliver, 85 So. 3d at 44.
1340 LOUISIANA LAW REVIEW [Vol. 82
question fails to suitably further the state’s interest.
145
Hence, the standard
permits a balancing between state and individual interests for members of
the discriminated class to see which are stronger.
146
Sibley’s holding does
not permit a law to stand solely because the Louisiana Legislature
reasonably believed that the law would suitably further an appropriate
state interest when it passed the law; instead, the law must actually suitably
further that interest after analyzing the law’s effect, such as in relation to
data.
147
Under Sibley, § 17:5029 does not suitably further the state’s
appropriate interest after analyzing the effect based on the data because
the program disregards valid homeschool GPAs and unnecessarily
requires higher ACT scores for homeschool students. Accordingly, the
statute violates Sibley’s third tier of equal protection analysis. To illustrate,
the TOPS legislation makes homeschool students a disadvantaged class by
requiring this particular group of students to score higher on the ACT than
what all Louisiana public and private school students must score for the
same amount of state aid.
148
Homeschool students “typically score 15 to
30 percentile points above public-school students on standardized
academic achievement tests” and “above average on the . . . ACT,”
149
earn
SAT scores that on average are higher than both public and private school
145. Berry, supra note 135, at 915.
146. Allen v. Burrow, 505 So. 2d 880, 887 (La. Ct. App. 1987).
147. See Berry, supra note 135, at 918; Sibley, 477 So. 2d at 1107.
Additionally, based on TOPS’s targeted focus on only awarding funds to qualified
students, a strong state interest in aiding qualified students with the furtherance of
their higher education, and the importance in not discriminating against qualified
homeschool students, TOPS’s homeschool qualification disparities also fail to
suitably further any other appropriate state interest. Cf. Bolling v. Sharpe, 347
U.S. 497, 500 (1954) (explaining that the discriminatory public education
measures in question were “not reasonably related to any proper governmental
objective” (emphasis added)).
148. L
A. REV. STAT. § 17:5029(B)(3)(b) (2021).
149. Ray, Homeschooling: The Research, supra note 22. Louisiana does not
provide statistics regarding homeschool students’ academic success or track their
academic progress unlike its studies of public school students, rendering it
necessary to extrapolate Louisiana students’ success from national studies. See
generally New School Performance Measure Tracks Student Progress in
Louisiana, D
EP’T OF EDUC.: LA. BELIEVES (Aug. 29, 2018), https://www.louisi
anabelieves.com/newsroom/news-releases/2018/08/29/new-school-performance-
measure-tracks-student-progress-in-louisiana [https://perma.cc/EWW4-L VE4].
Importantly, Louisiana’s choice to not provide data about these students should
not then insulate the legislature’s homeschool provisions from constitutional
equal protection evaluation due to a lack of Louisiana-centric data.
2022] COMMENT 1341
students’ SAT scores,
150
and earn on average higher high school GPAs as
well as higher college freshman GPAs than public and private school
students.
151
Thus, requiring homeschool students to score higher on the
ACT or SAT than public and private school students for the same amount
of TOPS money does not suitably further the state interest of distributing
state money to only qualified students.
152
Instead, homeschool students
that meet the public and private school GPA and ACT standards also
sufficiently comply with the legislature’s intended level of academic
readiness when it established the public and private school standards.
153
By applying higher requirements that prevent numerous qualified
homeschool students from receiving TOPS aid, Louisiana Revised
Statutes § 17:5029(B) fails to substantially further the state’s true interest
in aiding all qualified students.
154
Additionally, a requirement precluding homeschool students from
submitting GPAs does not suitably further the state interest as required
under Sibley because homeschool GPAs and standardized test scores
already adequately screen which students deserve specific TOPS awards.
The GPAs and scores are adequate based upon homeschool students’
academic qualifications expressed in the data detailing homeschool
students’ high GPAs and standardized test scores.
155
TOPS’s double
standard disadvantages numerous qualified homeschool students because
of a legislative lack of trust in the very educational process and grading
system—homeschooling—that fostered these students’ academic
success.
156
The Louisiana Legislature’s discrimination thereby fails to
actually protect state funds in a manner that outweighs the financial cost
150. Yu, Sackett & Kuncel, supra note 49, at 33, 34 tbls.1, 2 & 3.
151. Id.
152. See generally McDonald, supra note 5.
153. See supra Section II.A.
154. It is possible that the above data samples may not be from completely
representative cross-sections of homeschool students by oversampling higher-
scoring homeschool students. If so, the oversampling would derive from the fact
that it is possible that the higher-scoring homeschool students take standardized
examinations more frequently. See generally McMullen, supra note 2, at 85.
Nevertheless, since standardized examinations are necessary to participate in
TOPS for college, as well as college generally, the homeschool students with
these standardized test scores are the ones who already are academically qualified
to receive TOPS money and thus, would not inappropriately receive state money.
See generally L
A. REV. STAT. § 17:5029(B) (2021).
155. See generally Ray, Homeschooling: The Research, supra note 22; see
generally Yu, Sackett & Kuncel, supra note 49, 33, 34 tbls.1, 2 & 3.
156. See generally McDonald, supra note 5; see supra Section II.A.
1342 LOUISIANA LAW REVIEW [Vol. 82
to homeschool students as a result of Louisiana’s heightened homeschool
requirements.
157
Accordingly, the requirement that homeschool students score higher
on the ACT and SAT violates Louisiana equal protection under the Sibley
test by not suitably furthering the state’s appropriate interest in only
granting TOPS awards to qualified students. The Louisiana Legislature
cannot constitutionally discriminate against Louisiana homeschool
students concerning TOPS awards by not accepting their GPAs and by
requiring them to score higher on the ACT than other Louisiana high
school students when the data shows that homeschool GPAs and
curriculum are acceptable determinants of qualified scholarship
candidates.
B. Federal Equal Protection Analysis
Multiple scholars have advocated that discrimination against
homeschool students should face elevated forms of constitutional
scrutiny.
158
In fact, the same transcendent principle forbidding
discrimination against societal groups that the United States Supreme
Court expanded in Romer analogically applies to discrimination against
homeschool students, especially since
Romer validated a more rigorous
application of equal protection standards to a broad spectrum of unique
groups in society rather than to only a few.
159
Homeschool students are a
distinct minority group, composing 3% to 4% of United States primary
and secondary education students as of spring 2019, compared to the much
157. See generally TOPS OPH Annual Award Amounts for 2019-20, supra
note 11, at 1; see generally TOPS, supra note 11.
158. E.g., Raley, supra note 52, at 63 (advocating for strict scrutiny by stating
that “homeschooling should . . . be recognized as a ‘deeply rooted’ fundamental
right”); Linda Wang, Comment, Who Knows Best? The Appropriate Level of
Judicial Scrutiny on Compulsory Education Laws Regarding Home Schooling, 25
J.
CIV. RTS. & ECON. DEV. 413, 447–48 (2011) (advocating for strict scrutiny in
certain situations).
159. See Romer v. Evans, 517 U.S. 620, 623–24 (1996). The Court held the
following: “One century ago, the first Justice Harlan admonished this Court that
the Constitution ‘neither knows nor tolerates classes among citizens.’ Unheeded
then, those words now are understood to state a commitment to the law’s
neutrality where the rights of persons are at stake. The Equal Protection Clause
enforces this principle and today requires us to hold invalid a provision of
Colorado’s Constitution.” Id. at 623 (citation omitted) (citing Plessy v. Ferguson,
163 U.S. 537, 559 (1896) (dissenting opinion)); see supra Section I.C.; see infra
Section II.B.
2022] COMMENT 1343
larger population of public and private school students.
160
As a minority
group, homeschool students face considerable societal discrimination,
from unjustified calls to abolish homeschooling to unfounded assertions
that homeschooling stunts homeschoolers’ academic and social
development.
161
Since courts are usually hesitant to expand scrutiny protection to
additional groups via the creation of new protected classes, courts should
at a minimum apply the rational basis with bite standard to discrimination
based on an individual’s status as a homeschool student. The rational basis
with bite standard would permit courts to carefully analyze whether
discriminatory homeschool legislation rationally relates to a state’s
legitimate interest in passing the law.
162
Homeschool students, with their
own specific statutory section detailing their differing TOPS requirements
from other types of students, are a specific singled-out “named group” per
Romer in Louisiana Revised Statutes § 17:5029(B).
163
The statute also
imposes a “special disability” per Romer on homeschool students because
the statute requires homeschool students to score one to two points higher
on the ACT compared to public and private school students.
164
Therefore,
homeschool students deserve, at a minimum, treatment as a “class of
persons” in the same context as Romer used the term when granting
homosexuals heightened rational basis with bite scrutiny due to this
classification.
165
1. Cleburne v. Cleburne Living Center
The Supreme Court has addressed various types of discrimination
under a searching rationality standard in multiple cases with diverse
issues.
166
For instance, in Cleburne v. Cleburne Living Center, the
Supreme Court displayed the rational basis with bite application in
160. Ray, Homeschooling: The Research, supra note 22; see Ray, A
Systematic Review, supra note 26, at 604–05.
161. Raley, supra note 52, at 60, 60 n.10; see generally Bartholet, supra note
57, at 4–6.
162. Nachbar, supra note 112, at 1629.
163. L
A. REV. STAT. § 17:5029(B) (2021); Romer, 517 U.S. at 632.
164. Romer, 517 U.S. at 631; L
A. REV. STAT. § 17:5029(B)(3)(b) (2021).
165. Romer, 517 U.S. at 633, 635. This “at a minimum” approach is how this
Comment treats the homeschool class question and utilizes rational basis with bite
while recognizing the potential for even stronger protections of homeschool
students.
166. See, e.g., Plyler v. Doe, 457 U.S. 202 (1982); City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432 (1985); Romer, 517 U.S. 620.
1344 LOUISIANA LAW REVIEW [Vol. 82
action.
167
The city of Cleburne denied Cleburne Living Center a required
special use permit necessary for operating a group home for intellectually
disabled individuals even though no such special permit was necessary for
operating other housing buildings such as apartments, fraternities, or
elder-care nursing homes.
168
The living center sued, alleging that the city
unlawfully discriminated against the intellectually disabled individuals
based on those individuals’ “distinguishing characteristic” of being
intellectually disabled.
169
According to the Court, the special permit requirement for the singled-
out group—intellectually disabled individuals—was constitutional if the
legislation was “rationally related to a legitimate governmental
purpose.”
170
This standard, coupled with the court’s intensive application,
was rational basis with bite.
171
In its searching analysis of the city’s
reasoning, the Court found that the discriminatory permit requirement
sprang from a “fear” of potential negative effects that the intellectually
disabled individuals would have on the community.
172
The Court found
that “prejudice” by a legislature or a legislature’s “unsubstantiated” fear
of potential negative effects “are not permissible bases” for discriminating
between facilities for the intellectually disabled on one hand and other
types of living facilities on the other.
173
Thus, the city violated equal
protection under the rational basis with bite standard.
174
The city had no
rational basis for requiring the special permit compared to other housing
buildings because prejudice and unsubstantiated fears were such
prominent reasons for the discriminatory legislation.
175
Relating to Cleburne’s special requirement specifically burdening the
intellectually disabled, Louisiana Revised Statutes § 17:5029(B) singles
out homeschoolers as a group subject to the higher ACT and no GPA
requirements.
176
Accordingly, rational basis with bite applies. Since
rational basis with bite carefully assesses if a law rationally relates to the
state’s legitimate interest, the disparate TOPS requirements for
homeschool students needed to pass this test based on the data from when
167. See Cleburne, 473 U.S. at 448–50.
168. Id. at 435, 447.
169. Id. at 437, 441.
170. Id. at 441–42, 446.
171. See id. at 446, 448–50.
172. See id. at 448.
173. See id. at 448, 450.
174. See id.
175. See id.
176. Cf. id. at 442; L
A. REV. STAT. § 17:5029(B) (2021).
2022] COMMENT 1345
the Louisiana Legislature actually instituted the requirements.
177
The
state’s interest in preserving its financial aid for qualified students is
legitimate because scholarship funds are limited and must be apportioned
where the funds will create the most value. Yet that is only one prong of
the rational basis with bite test, and the “rationally relates” prong remains.
When Louisiana first began disbursing its TOPS aid, the standardized
test data clearly indicated that homeschool students as a group averaged
higher scores and possessed greater academic skills than their public and
private school counterparts who were under the lower TOPS standards.
178
For instance, an article that was published in 1998, the same year that
TOPS first began providing financial aid to qualifying students, explained
that according to data, public schools frequently created a “poor product—
illiterate and unprepared graduates.”
179
For example, at TOPS’s inception,
American 13-year-olds often earned mathematics scores inferior to those
of over a dozen other developed nations, and two-thirds of high school
juniors did not know the American Civil War occurred in the last half of
the 19th century.
180
By contrast, a study conducted by University of
Maryland Professor Lawrence Rudner detailing homeschool students’
academic achievements in 1998 found that on the analyzed standardized
tests, the majority of homeschool high school students scored between the
75th and 85th percentile compared to their public school counterparts’
median scores.
181
Those same homeschool scores ranged from the 65th to
the 75th percentile compared to their private school counterparts’ median
scores.
182
This data thereby proves that the Louisiana Legislature’s fear
that the homeschool curriculum and educational process would not create
“credible” grades was unsubstantiated per Cleburne and did not rationally
relate to homeschoolers’ actual academic qualifications or to a need for
differing qualifications to appropriately screen out unqualified students.
183
Since Cleburne shows that unsubstantiated fears “are not permissible
177. See supra Section I.C.
178. See infra Section II.B.1. For a discussion about the use of national
statistics, see supra note 149.
179. TOPS Report: Analysis of the TOPS Program from 2009-2018, supra
note 23, at 3; Isabel Lyman, What’s Behind the Growth in Homeschooling, USA
TODAY MAG. (Sept. 1998), http://libezp.lib.lsu.edu/login?url=https://search
.ebscohost.com/login.aspx?direct=true&db=f6h&AN=1073439&site=eds-live&
scope=site&profile=eds-main [https://perma.cc/8VLS-YK57].
180. See Lyman, supra note 179.
181. Rudner, supra note 40, at 16.
182. Id.
183. McDonald, supra note 5; cf. Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 448 (1985).
1346 LOUISIANA LAW REVIEW [Vol. 82
bases” when crafting legislation, § 17:5029(B) with its disparate
homeschool curriculum, GPA, and ACT standards violates equal
protection under a rational basis with bite analysis.
184
From its initial passage to the present day, the Louisiana Legislature
has consistently amended and recodified the TOPS statutes to apply them
to the next academic year or to streamline their provisions.
185
Importantly,
none of these adjustments has changed the fact that homeschooling is still
TOPS’s distinguishing characteristic per Cleburne that creates a singled-
out group with disparate requirements.
186
These amendments and
recodifications permit the application of rational basis with bite scrutiny
to determine whether, based on the current data, the Louisiana
Legislature’s reasoning rationally relates to a legitimate state interest.
Louisiana retains the legitimate interest of preserving state aid for
qualified students.
187
By contrast, when looking at the available data, it is
clear that homeschool students generally earn standardized test scores that
are “15 to 30 percentile points above public-school students” and
consequently “above average on the SAT and ACT.”
188
Further,
homeschool students’ high school GPAs as a group are higher on average
than public and private school students’ GPAs as a group.
189
These
homeschool GPAs are legitimate because former homeschool students’
college freshman GPAs are also higher on average compared to those of
their public and private school counterparts, proving that homeschool
grades did not merely spring from a biased grader or inferior
curriculum.
190
Hence, the discriminatory homeschool requirements still do
not rationally relate to preserving state aid for qualified students because
the data shows that equal GPA and ACT standards would determine which
students truly merit aid. In other words, homeschoolers who meet the
public and private school requirements are qualified to receive funds in the
same degree as public and private school students meeting the
requirements. This determination negates the reasoning behind
establishing different standards. Consequently, the current TOPS
requirements continue the legislature’s original reasoning based on an
unsubstantiated fear about the effects of equal homeschool TOPS
184. Cf. Cleburne, 473 U.S. at 448.
185. See generally L
A. REV. STAT. § 17:5024 (2021); TOPS Report: Analysis
of the TOPS Program from 2009-2018, supra note 23, at 5.
186. L
A. REV. STAT. § 17:5029(B) (2021); cf. Cleburne, 473 U.S. at 441, 448.
187. See generally McDonald, supra note 5.
188. Ray, Homeschooling: The Research, supra note 22.
189. Yu, Sackett & Kuncel, supra note 49, at 33, 34 tbls.1, 2 & 3.
190. See id.
2022] COMMENT 1347
standards, which is, as in Cleburne, an impermissible basis by which to
craft legislation.
191
In light of this analysis, it is not and was never rational—and therefore
could not logically be rationally related to a legitimate state interest,
especially under rational basis with bite—for the Louisiana Legislature to
doubt homeschool GPAs and curriculum in such a way that homeschool
students must score higher on the ACT to earn the same amount of TOPS
money as public school students who score lower on the ACT. Rather, the
targeted concerns about the adequacy of homeschooling were and are
unsubstantiated when compared to the public and private school data,
especially since BESE-authorized homeschools’ curriculum equals or
exceeds public schools’ curriculum according to Louisiana Revised
Statutes § 17:236(A).
192
2. Additional United States Supreme Court Jurisprudence
After Meyer v. Nebraska, where the Court found that liberty under the
Fourteenth Amendment includes “the right . . . to acquire useful
knowledge . . . and bring up children,”
193
and Pierce v. Society of Sisters,
where the Court found that parents have the right “to direct the upbringing
and education of children under their control,”
194
the right to homeschool
itself is supported in jurisprudence.
195
Although homeschooling is not yet
recognized as a fundamental right, compelling arguments exist that it
should be.
196
This right’s strength indicates that laws creating a chilling
effect on the practice of homeschooling—such as a requirement for higher
standardized test scores to receive the same amount of state educational
funding—are unconstitutional.
197
This unconstitutionality springs from
the fact that Meyer and Pierce protect homeschoolers from state
191. Cf. Cleburne, 473 U.S. at 448.
192. See L
A. REV. STAT. § 17:236(A) (2021).
193. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
194. Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925).
195. See, e.g., Meyer, 262 U.S. 390; Pierce, 268 U.S. 510; Wisconsin v. Yoder,
406 U.S. 205 (1972).
196. See Raley, supra note 52, at 60 n.7, 63–64 (“[H]omeschooling has been
the primary form of education for most of Western history, including at the times
when the Constitution and the Fourteenth Amendment were adopted, and . . .
states have almost always refrained from infringing on parents’ ability to educate
their children at home. . . . [H]omeschooling should therefore be recognized as a
“deeply rooted” fundamental right. . . . [H]omeschooling [also] falls under the
fundamental right of parent-directed education.”).
197. See generally L
A. REV. STAT. § 17:5029(B) (2021); Levels of Scrutiny
Under the Equal Protection Clause, supra note 108.
1348 LOUISIANA LAW REVIEW [Vol. 82
interference.
198
Ultimately, the data demonstrating homeschool students’
repeated academic excellence as a class shows that the TOPS requirement
for homeschool students is not rational even under the rational basis with
bite standard.
199
For instance, in Plyler v. Doe, the Supreme Court considered alleged
unconstitutional education discrimination in an equal protection case.
200
A
Texas statute prevented children who entered the country illegally from
receiving a free public education unlike all other children who were United
States citizens or were legally within the United States.
201
The Texas law
authorized school districts to not accept those students into public schools
and prevented the districts from receiving state funds for those students’
education.
202
The Court held that, since the Equal Protection Clause’s
purpose was “the abolition of all caste-based and invidious class-based
legislation,”
203
states cannot exclude certain classes from equal protection
guarantees such as by this type of education funding discrimination.
204
To
reach this point, the Court used rational basis with bite to weigh the
importance of the children receiving state funds for their education against
the state’s interest in preserving its limited resources for the education of
its lawful residents.
205
The Court found that the cost to the illegal
immigrant children completely outweighed the state’s economic interest
in preserving its funds for whom it considered to be qualified students.
206
Although the holding in Plyler was limited to students in elementary
school through high school,
207
its application to TOPS’s homeschool
situation does not pose a problem because TOPS’s disparate treatment
concerns high schoolers’ pre-college qualifications—GPAs and ACT
198. Rankins v. La. State Bd. of Elementary and Secondary Educ., 637 So. 2d
548, 553 (La. Ct. App. 1994).
199. See generally Rudner, supra note 40, at 16; Cloud & Morse, supra note
24, at 5; Ray, Homeschooling: The Research, supra note 22; Yu, Sackett &
Kuncel, supra note 49, at 33, 34 tbls.1, 2 & 3; Rational Basis Test with “Bite,”
supra note 116.
200. Plyler v. Doe, 457 U.S. 202, 205 (1982).
201. Id.
202. Id.
203. Id. at 213.
204. See id.
205. Rational Basis Test with “Bite,” supra note 116; Plyler, 457 U.S. at 227–
30.
206. Plyler, 457 U.S. at 230.
207. Ignacia Rodriguez, On Plyler v. Doe’s 35th Anniversary, This Landmark
Supreme Court Decision Must Be Honored and Protected, N
AT’L IMMIGR. L. CTR.
(June 15, 2017), https://www.nilc.org/2017/06/15/plyler-v-doe-must-be-honored-
and-protected/# [https://perma.cc/5NG9-FGSJ].
2022] COMMENT 1349
scores.
208
Thus, similar to Plyler, for the TOPS equal protection issue,
Louisiana homeschool students face discrimination compared to all other
Louisiana students by having to score higher on the ACT and not being
allowed to use their GPAs to qualify for TOPS.
209
Likewise, this
discrimination also creates a separate class—homeschool students—via
“class-based legislation” specifically singling out homeschool students
compared to public and private school students.
210
Like the students in
Plyler, certain homeschool students—the ones not meeting the higher
requirements for the TOPS Opportunity Award—face wholesale
exclusion from the state benefits. Further, homeschool students meeting
the baseline Opportunity Award requirements to receive some funds but
not meeting the higher homeschool requirements for the Performance and
Honors Awards receive fewer benefits than their similarly situated peers.
While Louisiana’s interest in preserving its state funds for qualified
students is a legitimate state interest, when weighed via Plyler’s formula
against the interest homeschool students have in receiving thousands of
otherwise unavailable dollars for their education, the rational relation to
this legitimate state interest becomes problematic.
211
In light of the fact
that homeschool students consistently earn higher high school and college
freshman GPAs than their counterparts according to the University of
Minnesota study, as well as score “above average on the SAT and ACT”
compared to their counterparts, § 17:5029(B)’s discriminatory gatekeeper
function to TOPS awards does not actually rationally relate to excluding
unqualified students from TOPS awards.
212
Instead, it weaves an
unnecessary net that removes qualified homeschool students from TOPS’s
stream and creates a weighty financial harm for those students removed
from the stream.
213
Consequently, the cost to homeschool students of not
receiving state TOPS funding for their education that they otherwise
would have earned if equal standards applied to them means § 17:5029(B)
fails the rational basis with bite standard under Plyler: the state’s similar
208. See generally LA. REV. STAT. § 17:5029(B) (2021); see generally id. §
17:5024.
209. Id. §§ 17:5029(B), 17:5024.
210. See id. § 17:5029(B) (“A student who completes a home study program
shall be eligible to receive an award pursuant to this Chapter if each of the
following conditions is met . . . .”); cf. Plyler, 457 U.S. at 213.
211. McDonald, supra note 5; see Rational Basis Test with “Bite,” supra note
116; see supra Introduction.
212. Yu, Sackett & Kuncel, supra note 49, at 33, 34 tbls.1, 2 & 3; Ray,
Homeschooling: The Research, supra note 22; see generally L
A. REV. STAT.
§ 17:5029(B) (2021).
213. See supra Introduction, Section I.B.
1350 LOUISIANA LAW REVIEW [Vol. 82
interest in preserving its funds for only qualified students is not suitably
served by discriminating against qualified homeschool students.
214
In sum,
Louisiana’s homeschool GPA and ACT discrimination is unconstitutional
under the United States Constitution’s Equal Protection Clause.
C. Logical Shortfalls to Discriminating Against Homeschool Students
In addition to the state and federal constitutional arguments against the
TOPS program’s homeschool treatment, logical reasoning also
demonstrates that homeschool students deserve to be measured by the
same standards as public and private school students for TOPS purposes.
For instance, homeschool families pay taxes that contribute to TOPS’s
funding.
215
Further, they pay taxes that contribute toward funding public
education.
216
Unlike public school families, they do not experience the
fruits of these contributions in the form of tax-funded state benefits for
elementary and secondary education.
217
Thus, it is unfair that when
homeschool students are able to receive a partially state-funded education
with its benefits through TOPS, the state requires homeschool students to
meet a higher standard than public and private school students to receive
the same amount of funding.
It is also not rational that when homeschool students take the same
standardized test that is no easier for them than for public and private
school students, homeschool students must score higher for the same
amount of state aid. As Charles McDonald, the “[F]ather of TOPS,” stated
about TOPS’s standards, “The ACT is the only criteria or standard we can
compare across the board.”
218
Representative McDonald’s statement
accurately highlights the ability of this standardized examination to
objectively reflect the academic abilities of students from all schools
across Louisiana to determine whether they merit an award; as such, the
state should use the score as an equal reflection of qualifications rather
than as a pointless extra hurdle for homeschool students to clear.
Otherwise, the higher ACT standards undercut the legislative goal “that
214. See Rational Basis Test with “Bite,” supra note 116; cf. Plyler, 457 U.S.
at 227–30.
215. Louisiana’s budget, which largely derives its funds from taxpayers, funds
TOPS. See generally Guidry, supra note 60.
216. See generally How Is Education Funded?,
DEP’T OF EDUC.: LA. BELIEVES,
https://www.louisianabelieves.com/docs/default-source/general-funding/how-is-ed
ucation-funded.pdf?sfvrsn=0 [https://perma.cc/Y48H-VDMG] (last visited Oct. 19,
2020).
217. See generally id.
218. Guidry, supra note 60.
2022] COMMENT 1351
everybody participate” and its understanding that only academically
qualified students “deserve . . . the scholarship.”
219
Aside from the constitutional analysis, from a policy perspective the
data shows that homeschool grades and test scores warrant equal
consideration. This equal consideration stems from homeschool
standardized test scores consistently being “15 to 30 percentile points
above public-school students” to homeschoolers consistently earning
higher first-year college GPAs—an indication that homeschool students’
average higher high school GPAs were also legitimate.
220
One could argue
that since statistics only demonstrate homeschool students’ average
scores, meaning some students fall below the average, the policy of
preserving state aid for qualified students would suffer if these below-
average students enjoy the same TOPS standards.
221
That argument fails
because the GPA and ACT standards would filter out unqualified
homeschool students in the same way they filter out unqualified public and
private school students in light of the required homeschool course quality
and the fact that the ACT is a standardized playing field equal to all test-
takers.
222
Also, an argument against averages uses a flawed premise
because the mathematical studies necessary to determine a law’s propriety
necessarily base themselves on averages.
223
Further, the homeschool
students going to college are likely the ones who are scoring higher and
thereby qualifying for TOPS college scholarships anyway,
224
similar to the
trend in public and private schools that shows that when students perform
well academically they are more likely to attend college than the students
who do not perform as well.
225
Regarding the curriculum used by homeschool students, BESE bases
its certification of home study programs upon the legal finding that a
particular homeschool “offers a sustained curriculum of a quality at least
equal to that offered by public schools at the same grade level.”
226
This
recognition reflects a strange double standard because while Louisiana
219. Id.
220. Ray, Homeschooling: The Research, supra note 22; see Yu, Sackett &
Kuncel, supra note 49, at 33, 34 tbls.1, 2 & 3.
221. See generally supra Sections I.A.1, I.B.
222. See L
A. REV. STAT. § 17:236(A) (2021); see Guidry, supra note 60.
223. See, e.g., Yu, Sackett & Kuncel, supra note 49, at 33, 34 tbls.1, 2 & 3.
224. See McMullen, supra note 2, at 85.
225. See generally Amy Morin, Benefits of Getting Good Grades in High
School,
VERYWELLFAMILY, https://www.verywellfamily.com/benefits-of-getting-
good-grades-in-high-school-4161164 [https://perma.cc/DDN7-QL68] (last updated
Aug. 7, 2020).
226. L
A. REV. STAT. § 17:236(A) (2021).
1352 LOUISIANA LAW REVIEW [Vol. 82
officially validates homeschool curriculum as not only equal to but
potentially stronger than public school curriculum in Louisiana Revised
Statutes § 17:236(A), the state simultaneously distrusts homeschool GPAs
and classes taken based on that state-approved homeschool curriculum for
purposes of determining TOPS eligibility.
227
Similarly, all post-secondary
educational institutions in Louisiana accept the validity of homeschool
diplomas,
228
further illustrating this double standard.
Naturally, homeschool students earn their GPAs based on the
calculations at their own homeschools and the grading methods of their
own teachers—usually their parents. This fact causes some to question the
legitimacy of those grades and GPAs.
229
Yet homeschools’ grading
situations do not mean that homeschool GPAs are any less reliable than
public or private school GPAs, contrary to the Louisiana Legislature’s
concern about this issue when originally crafting TOPS’s differing GPA
requirements.
230
Rather, when one acknowledges that grading practices
based on teachers’ personal methods—and thereby GPA determinations
deriving from those grades—vary not only for every school but even for
every classroom throughout Louisiana, it is apparent that the root cause of
concern about homeschool GPAs springs not from a homeschool to private
and public school question but from a more general school to school
question.
231
Since Louisiana Revised Statutes § 17:5024 accepts GPAs
derived from differing grading methods at each of Louisiana’s host of
public and private schools, a statutory discrimination against GPAs
derived from homeschools lacks consistency and misses the point in light
of the high test scores and grades homeschool students consistently earn
and the objective mathematical methods generally used to calculate
homeschool GPAs.
232
Ultimately, homeschool GPAs, curriculum, and
standardized test scores serve as reliable indicators showing which TOPS
awards homeschool students deserve at the same level that GPAs,
curriculum, and standardized test scores serve as reliable award indicators
for public and private school students. Accordingly, it is not logical from
227. See generally id.; id. § 17:5029(B).
228. Home Study, D
EP’T OF EDUC.: LA. BELIEVES, https://www.louisiana
believes.com/schools/home-study [https://perma.cc/3WLF-KFM8] (last visited
Oct. 19, 2020).
229. McDonald, supra note 5.
230. See id.
231. See generally Katrina Schwartz, How Teachers Are Changing Grading
Practices with an Eye on Equity, KQED (Feb. 10, 2019), https://www.kqed.org
/mindshift/52813/how-teachers-are-changing-grading-practices-with-an-eye-on-
equity [https://perma.cc/2TWU-TCQ9].
232. See generally L
A. REV. STAT. §§ 17:5024, 17:5029(B) (2021).
2022] COMMENT 1353
a policy perspective to require homeschool students to meet a higher
standard for Louisiana’s TOPS funding than public and private school
students.
III.
EQUITABLE STANDARDS FOR EQUAL QUALIFICATIONS: A PROPOSED
STATUTORY REFORM
As they now stand, TOPS’s GPA and ACT requirements for
homeschool students violate state equal protection under Sibley’s third tier
and federal equal protection under the rational basis with bite standard
because the discrimination against homeschool students is based on an
irrational legislative belief that homeschool grades do not adequately
indicate homeschool students’ academic qualifications. This
unconstitutionality necessitates a statutory revision to eliminate the
distinction between public and private school students and homeschool
students and to implement equal GPA and ACT requirements for all
Louisiana public, private, and homeschool students applying for TOPS.
By eliminating the Louisiana Legislature’s unconstitutional homeschool
distinction within Louisiana Revised Statutes § 17:5029(B) and replacing
it with equal GPA and ACT requirements for all students, the law would
suitably further the state’s appropriate interest in conserving its funds for
only qualified students, and TOPS’s standards would rationally relate to
that legitimate state interest.
233
The proposed language reads as follows:
(3)(a) Except as otherwise provided by this Subsection, students
shall meet the following minimum grade point average
requirements, calculated on a 4.00 scale, for the respective
awards:
(i) For an Opportunity Award, a minimum cumulative grade
point average of 2.50.
(ii) For a Performance Award, a minimum cumulative grade
point average of 3.25.
(iii) For an Honors Award, a minimum cumulative grade point
average of 3.50.
(iv) For a TOPS-Tech Award, a minimum cumulative grade
point average of 2.50.
(b) The following minimum grade point averages specifically
apply:
(i) For a student who graduated during or after the 2007-2008
school year but prior to the 2021-2022 school year, the minimum
233. See Sibley v. Bd. of Sup’rs of La. State Univ., 477 So. 2d 1094, 1107
(1985); see Nachbar, supra note 112, at 1629.
1354 LOUISIANA LAW REVIEW [Vol. 82
cumulative high school grade point average necessary for such
student to be eligible for an Opportunity Award shall be 2.50 on a
4.00 scale.
(ii) For a student who graduated during or after the 2007-2008
school year but prior to the 2021-2022 school year, the minimum
cumulative high school grade point average necessary for such
student to be eligible for a Performance Award shall be 3.00 on a
4.00 scale.
(iii) For a student who graduated during or after the 2007-
2008 school year but prior to the 2021-2022 school year, the
minimum cumulative high school grade point average necessary
for such student to be eligible for an Honors Award shall be 3.00
on a 4.00 scale.
(c) Except as otherwise provided by this Subsection, a student
shall earn the following minimum test scores for the respective
awards:
(i) For an Opportunity Award, a composite score on the 1990
version of the ACT which is at least equal to or higher than the
state's average composite score, truncated to a whole number,
reported for the prior year but never less than twenty or an
equivalent concordant value on an enhanced or revised version of
such test or on the SAT.
(ii) For a Performance Award, a composite score on the 1990
version of the ACT of twenty-three or higher or an equivalent
concordant value on any enhanced or revised version of such test
or on the SAT.
(iii) For an Honors Award, a score of twenty-seven or higher
on the 1990 version of the ACT or an equivalent concordant value
on any enhanced or revised version of such test or on the SAT.
(iv) For a TOPS-Tech Award, a composite score on the
specified ACT of seventeen or higher or an equivalent concordant
value on any enhanced or revised version of such test or on the
SAT. The student may, as an alternative requirement, have
attained a silver level score on the assessments of the ACT
WorkKeys system.
234
234. See generally LA. REV. STAT. § 17:5024; The current version of
Louisiana Revised Statutes § 17:5029(B)(3) reads as follows:
(3)(a) Except as provided in Subparagraph (b) of this Paragraph, the
student has a composite score on the 1990 version of the ACT which is
at least three points higher than that required by R.S. 17:5024(B) for the
2022] COMMENT 1355
One potential concern about eliminating the GPA and ACT
distinctions while leaving Louisiana Revised Statutes § 17:5025’s core
unit provisions untouched is that this distinction could disadvantage public
and private school students compared to homeschool students.
235
However, it is constitutional and necessary to distinguish between public,
private, and homeschool students regarding the core unit requirement
because the core unit standard intersects with a superseding area of
constitutional law, namely Meyer’s, Pierce’s, and Wisconsin v. Yoder’s
protections for parental decisions regarding homeschooling and the
curriculum that homeschools use.
236
Since the United States Constitution
in these cases as well as the Louisiana Constitution prevent BESE from
mandating what homeschool curriculum can be used, it is likewise
inappropriate for the state to essentially dictate which courses homeschool
parents must teach by using TOPS funding as coercion to force
homeschool students to take certain courses for TOPS money.
237
Also,
since course quality and course offerings invariably differ for each and
particular award or an equivalent concordant value on an enhanced or
revised version of such test or on the SAT.
(b)(i) For a student qualifying for an initial program award for the 2005-
2006 through the 2007-2008 award year pursuant to this Subsection, the
student shall have a composite score on the 1990 version of the ACT
which is at least two points higher than that required by R.S. 17:5024(B)
for the particular award or an equivalent concordant value on an
enhanced or revised version of such test or on the SAT.
(ii) For a student qualifying for an initial TOPS-Tech or Opportunity
Award for the 2008-2009 award year or thereafter pursuant to this
Subsection, the student shall have a composite score on the 1990 version
of the ACT which is at least two points higher than that required by R.S.
17:5024(B) for the particular award or an equivalent concordant value
on an enhanced or revised version of such test or on the SAT.
(iii) For a student qualifying for an initial Performance or Honors Award
for the 2008-2009 award year or thereafter pursuant to this Subsection,
the student shall have a composite score on the 1990 version of the ACT
which is at least one point higher than that required by R.S. 17:5024(B)
for the particular award or an equivalent concordant value on an
enhanced or revised version of such test or on the SAT.
Id. § 17:5029(B)(3).
235. See generally id. § 17:5025.
236. See Rankins v. La. State Bd. of Elementary and Secondary Educ., 637 So.
2d 548, 553–54 (La. Ct. App. 1994). A more in-depth discussion regarding
TOPS’s core unit distinction is beyond the scope of this Comment.
237. See id.
1356 LOUISIANA LAW REVIEW [Vol. 82
every school throughout Louisiana,
238
Louisiana Revised Statutes
§ 17:236(A)’s indication that homeschool courses across the board have a
quality equal to or exceeding public school courses suffices to guarantee
homeschool courses’ TOPS qualifications without requiring specific state-
determined courses in the homeschool TOPS context.
239
The proposed statutory amendment reflects homeschooling’s
credibility because Louisiana Revised Statutes § 17:5029(B), as it
currently stands, implicitly denies the validity of homeschool education in
light of the legislature’s inherent distrust of homeschool grades.
240
For
state law to doubt homeschool students’ academic qualifications and
thereby perpetuate a false sense of homeschool students’ academic
inferiority is not an objectively accurate position for the Louisiana
Legislature to take. Louisiana’s homeschool students deserve the same
consideration in their education as other students and would receive this
consideration under the revision.
With this in mind, the Louisiana Legislature should amend Louisiana
Revised Statutes § 17:5029(B) in conformity with the above proposed
language to harmonize homeschool GPA and ACT requirements with
§ 17:5024. The amendment should also maintain § 17:5024’s more
intricate GPA and ACT requirements about earlier graduation dates and
retain § 17:5029(B)’s unique administrative homeschool provisions, such
as BESE certification, to ensure homeschools and homeschool students
still operate under the required state procedures. Section 17:5029(B)(3)
would thus read nearly identically to § 17:5024.
241
The same GPA and
ACT standards for state TOPS funding would apply equally to all
Louisiana high school students, meaning the proposed amendment itself
does not violate equal protection. Therefore, the proposed revision would
satisfy both state and federal constitutional requirements as well as reflect
the policy arguments in the revision’s favor.
C
ONCLUSION
The TOPS program’s current requirements unconstitutionally
discriminate against Louisiana homeschool students according to both
state and federal constitutional law. Legislation that unequally funds
238. See generally DEP’T OF EDUC., 2020–2021 LOUISIANA HIGH SCHOOL
PLANNING GUIDEBOOK: A PATH TO PROSPERITY FOR EVERY STUDENT 3 (May 19,
2020), https://www.louisianabelieves.com/docs/default-source/course-choice/high-
school-planning-guidebook.pdf?sfvrsn=1fbd831f_52 [https://perma.cc/SJ6Z-JZM R].
239. See generally L
A. REV. STAT. § 17:236(A) (2021).
240. See McDonald, supra note 5.
241. See generally L
A. REV. STAT. § 17:5024 (2021).
2022] COMMENT 1357
homeschool students compared to others, despite the presence of credible
homeschool grades and equal standardized test scores, causes
unconstitutional de jure education discrimination. Coupled with these
constitutional concerns, the policy concerns of subjecting qualified
students to differing academic standards demonstrate that Louisiana
Revised Statutes § 17:5029(B)’s discriminatory TOPS provisions are
invalid and illogical. Therefore, the Louisiana Legislature should promptly
amend this legislation to correct its unconstitutionality and to buttress
rather than burden homeschool students’ pursuit of promising academic
careers.
