Exclusive: Hybrid Schools Open New Legal Front for Choice

Most homeschoolers now piece together a variety of classes and outings for their kids. In the north Pittsburgh area, that often includes enrolling in Roots Learning Academy.

Known as a hybrid program, Roots serves roughly 150 families who split their time between home instruction and on-site academic or extracurricular courses in rented church spaces. But the state officials who conducted a surprise inspection in March didn’t like what they saw.

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“They started questioning my teachers and then asking me a bunch of questions: how many students we had, the ages,” said Katy Duckstein, a homeschooling mom of five who founded the program in 2023. To keep operating, the inspectors said, Roots would need to become a certified childcare program. Duckstein said such a requirement would fundamentally alter parents’ relationship with the program by adding background checks and training mandates.

She wasn’t surprised a couple weeks later to receive a cease and desist letter from the Pennsylvania Office of Child Development and Early Learning. But she’s not fighting it alone. 

The Institute for Justice, a leading libertarian law firm, has taken her case and on Thursday was expected to make the next move in its appeal of the state’s order. The attorneys argue that Roots is not childcare but rather a leading example of what the state encourages homeschoolers to do, like join co-ops and “band together for sharing resources, ideas and planned activities.”

As the demand grows for nontraditional learning arrangements, many, like Roots, don’t fit a traditional public, private or homeschooling mold.

“We’re seeing this square peg, round hole problem where the government is forcing these new models into old regulatory boxes,” Michael Bindas, senior attorney, said in an interview with The 74.

With its action in Pennsylvania, the firm is launching a new Education Entrepreneurship Project after handing its state-level work off to EdChoice in 2023. The fact that Bindas, who argued and won a major private school choice case before the U.S. Supreme Court, has now turned his attention to start-up education providers reflects the rapid expansion of such models since the pandemic. In many states, education savings accounts, which allow parents to take an a la carte approach to their kids’ learning with state funds, have fueled the growth of microschools and hybrid programs. But those ventures often run into regulatory obstacles, such as building codes, zoning rules and in Duckstein’s case, childcare regulations.

In 2021, Bindas represented families who sued Maine for preventing religious schools from participating in a private school choice program. The 6-3 victory in Carson v. Makin “empowered parents to make the decisions that best for their kids.” he said. But now, the “supply side is restricted by these irrational and outdated laws.” 

Pennsylvania doesn’t see it that way. 

“A childcare center is defined as any premises in which childcare is provided simultaneously to seven or more children who are not relatives of the operator,” the letter said. 

Duckstein said the biggest obstacle to becoming a licensed childcare program is that the rules require all parents, who are expected to volunteer with the program, to pass background checks, become CPR certified and complete six hours of annual training. 

Parents at Roots help with drop off and pick up, organize field trips and even teach some classes related to their professions. The requirements, she said, would deter many families from participating.

The state offers exemptions for summer camps, programs that teach single subjects and those that operate only two hours a day. But Roots operates three days a week from 9 a.m. to 2 p.m. and offers a full academic curriculum.

“It’s utterly irrational to insist that Katy get the childcare license while all of these other activities that are so similar to what she does are exempt,” Bindas said. 

‘Bypass safety standards’ 

Pennsylvania doesn’t have a private school choice program. But in states that do, research from Doug Harris, a Tulane University economist, shows that ESA programs have contributed to a small increase, about 3% to 4%, in private school enrollment. Most of that growth has been in very small schools. 

Before the pandemic, Harris and his wife even considered a microschool for their daughter, a rising middle schooler. It operated out of a storefront, featured project-based learning and let kids have a say in school policies. They ultimately chose a more traditional school, but years later, his research touches on how these small private schools are impacting the education sector.

He compared this current period with microschooling to a wave of legislation in the early 1990s that made it easier for parents to homeschool. 

“It took awhile to get to a new equilibrium of policies and I think that’s just the situation we’re in now,” he said. Some states may “carve out a new category for microschools, he said. West Virginia was the first to do so in 2022. But for now, they are “either childcare or private schools. I can’t imagine that they wouldn’t be in one of those categories.”

Some observers expect the new federal tax credit scholarship, starting next year, to spur even more growth in micro and hybrid programs in states that opt in. That could also mean more clashes over regulations.

“The whole intention of this federal voucher program is to incentivize private schools,” said  Weadé James, senior director of K-12 policy at the Center for American Progress, a left-leaning think tank. The organization has called for tighter regulations on microschools. “Will those schools be able to bypass safety standards and zoning regulations to set up shop?”

She pointed to Florida as one example of a state that has changed regulations to accommodate the small programs. The 2024 law now allows private schools to occupy nontraditional spaces, like museums and movie theaters, without local government approval. 

“If these smaller models of schooling become more widespread, what should those environments look like?” James asked. “What oversight does the state need to have in place to make sure you know safety standards are comparable to that which we have for traditional public schools?”

But they’re not traditional, argues Don Soifer, CEO of the National Microschooling Center, an advocacy organization. In his role, he hears almost daily from school leaders that are negotiating business licenses and safety codes or have been told they must make expensive renovations to be in compliance.

“There is a need to modernize or update the whole regulatory regime to acknowledge that these microschools are serving school-age kids in non-traditional ways,” he said. 

‘Don’t have a reserve’

In some cases, programs facing regulatory and financial challenges are forced to shut down, leaving parents and staff scrambling for other options. That’s what happened with Burbrella, a North Carolina microschool serving neurodivergent students that The 74 first featured two years ago.

Originally operating out of a mall, founder Dominque Burgess wanted a larger space to allow for more nature-based education. She received an $800,000 loan to purchase a commercial space that straddled the county line. Inspectors from both counties told her the facility wasn’t suitable for a school and she would need to make $280,000 worth of renovations.

“We don’t have a reserve. We don’t have a large board. We don’t have donors that can support us in times like this,” she said.

The complications didn’t end there. When the facility didn’t pass inspection, the state stopped paying for students who were on Opportunity Scholarships, the private school choice program. She had to lay off staff, temporarily operate only as a tutoring center and couldn’t pay what she still owed the mall.

“We had to lose a lot of families who needed full-day learning that we couldn’t offer in this building,” she said. “We received tons of phone calls and emails from the [state] Department of Labor because of staff complaints.” 

She’s been working with the John Locke Foundation, a conservative think tank, to get some zoning regulations changed at the state and local level, but the experience has also changed her views of ESA programs.

“We’re always pushed to take the vouchers. We’re always pushed to become ESA-friendly,” she said. “But when we don’t meet the parameters or requirements to continue to get ESA, this is what happens.”

Now she’s thinking about moving into the charter sector to secure more reliable funding.

Historical case law

In Pennsylvania, Duckstein is also thinking about the sustainability of the hybrid program if state officials, she said, were to “hunker down” and not exempt Roots from regulations.

Her other option is to register as a private school, which would require Roots to operate 180 days a year and treat the time kids learn at home as virtual learning days. But she thinks some families would be turned off by that structure.

“I know we would lose families,” she said.

Roots is not the only program getting some legal assistance from the Institute for Justice. 

The firm also represents Karli Kemper, a microschool leader in Pinal County, Arizona, who is seeking a special zoning permit to run a program for students with disabilities out of her home. The county’s Planning and Zoning Commission recommended denial of the permit, and the Board of Supervisors will make a final decision Sept. 16.

For Bindas, the new area of work is a chance to highlight historical cases that dealt with similar issues. More than a century ago, Robert Meyer was arrested for teaching German to children at a Lutheran school in Nebraska. In 1923, the Supreme Court struck down the state’s law prohibiting anyone from teaching a foreign language to children in eighth grade or younger.

In Pierce v. Society of Sisters, the court ruled unanimously that an Oregon law requiring parents to send their children to public schools was unconstitutional. The Society was a Catholic congregation that ran an orphanage and operated schools. 

“They were the education entrepreneurs of their day,” Bindas said. “The Supreme Court was ready to protect their rights to offer their services to willing parents. We anticipate that it will offer the same protections to the rights of today’s education entrepreneurs.”