Learning Outside the Box (Legally) in Washington State

BY KATHLEEN CASPER REED, M.ED., J.D.

When Ella (not her real name) started kindergarten in a small town in Washington in 2020, the world was in a holding pattern and everyone was more or less a homeschooler, as even public school students attended class online. This worked for Ella, who had serious trauma from years as a foster child and had a hard time sitting still and paying attention to rote learning activities.

In first grade, Ella went back to in-person classes at a public school and by second grade, she was labeled as needing special assistance and struggling with behavior issues. She was out of class in the counseling office more often than in class, she had
multiple calls home about inappropriate behavior, and she was considered below grade level in most subjects.

By third grade, Ella was taken out of public school and became part of a “microschool” that was registered as a private school. It had a certified teacher and other students who also were not able to succeed in the public school system. Several homeschool students also joined the microschool part-time, and they all worked toward excelling on state learning standards through the school’s nature-based adventures including play, games, independent challenges, and occasional worksheets that emphasized assorted skills.

By the middle of fourth grade, after just a year in the microschool, Ella was back on grade level; and by the middle of fifth grade, she was reading at a seventh-grade level and doing sixth grade math. Attending the home-based microschool was not only an alternative to public school for Ella and the other students—it was an innovative doorway to learning and success.

Washington Law

Washington state prides itself on its public education system, with just over 1 million students enrolled statewide (Office of Financial Management [OFM], 2024).¹ Yet a growing contingent of over 6 percent (about 30,000 K–12 students) has turned to homeschooling instead.² This shift has created significant legal and policy implications, particularly for families and educators navigating the boundaries between home-based instruction, learning pods, child care centers, and private school regulation. For attorneys, understanding these dynamics is not only professionally relevant but increasingly necessary as families seek guidance in an evolving legal landscape.

A Significant Trend

The rise in homeschooling in Washington has been significant since the onset of the COVID-19 pandemic. Between 2019 and 2022, the number of homeschooled students increased by approximately 43 percent, from 20,844 in the 2019–20 school year to 29,798 in the 2022–23 school year.³ This surge was notably higher than the national average of 27 percent over the same period.⁴ This trend indicates that homeschooling has become a more prominent educational choice in Washington state, reflecting broader national patterns of increased interest in alternative education options.

A Legal System Rooted in Public School Priority

Washington’s constitution defines public education as the state’s “paramount duty” (Wash. Const. art. IX, § 1). This commitment has been reinforced repeatedly, including in the landmark McCleary v. State (2012)⁵ and subsequent rulings that mandated increased state funding for public schools. While these decisions strengthened public education, they also reinforced a policy culture where alternatives—such as homeschooling—remain tightly regulated. Washington’s Home-Based Instruction Act of 1985 (Wash. Rev. Code § 28A.200; RCW 28A.225) formalized homeschooling rights and implemented accountability mechanisms such as mandatory declarations of intent, annual assessments, and record-keeping requirements.

Attorneys advising families seeking flexibility and educational entrepreneurs must therefore understand the constitutional and statutory framework that keeps Washington among the stricter homeschool states.

Homeschool Law as a Compromise

Washington’s homeschool statute, negotiated in the 1980s as a compromise between school districts and homeschool advocates, reflects a “trust but verify” model. Parents must demonstrate qualifications to homeschool, file annual intent forms, and provide proof of student progress through standardized testing or certificated teacher review (RCW 28A.200.010). Specifically, this means parents must file an intent to homeschool form on time and make sure their children are tested with a standardized test or by a certified teacher each year. Parents must either be certified as teachers themselves, have at least 45 college-level credits, or have training from a state-approved home-based education program. They must also be well-versed in a variety of content areas or find someone who is to supervise their children and ensure they have adequate lessons and time spent in the required subject areas. The state requirements (RCW 28A.225.010(4)) specify that instruction must be provided that “consists of planned and supervised instructional and related educational activities”⁶ and goes on to list 13 major subject areas that must be taught. In some cases, the superintendent of the school district may determine whether a parent is qualified, leaving some gray areas and possible fairness issues. Washington also requires that students make “adequate progress,” a phrase that is not specifically defined. If a school district claims a child has not made adequate progress and a parent disagrees, it may be up to a court of law to determine that as an issue of fact. For families, all of this means added oversight, scrutiny, and potential pitfalls if they don’t follow the rules. For lawyers, it means clients need clear advice on compliance—and sometimes protection when districts push beyond statutory requirements.

The Legal Gray Zone: Learning Pods and Enrichment Centers

Perhaps the greatest legal uncertainty lies in the rise of “learning pods,” hybrid programs, and enrichment centers. Families often seek small group instruction for academic, social, or child care reasons. Yet Washington law does not recognize pods as distinct entities. Instead, programs that resemble schools risk being classified as private schools (triggering approval, instructional hours, and teacher certification requirements) or as child care centers (triggering licensing obligations) (RCW 28A.195; RCW 43.216). Washington courts have followed the provisions of RCW 28A.225.020(1)(c), emphasizing in cases such as Bellevue School District v. E.S. (2011),⁷ that school districts may “take steps to eliminate or reduce the child’s absences” through compulsory education laws, reinforcing that families must comply with statutory requirements. Truancy cases under the “Becca Bill” (RCW 28A.225.030) further demonstrate the risks when parents fail to file declarations of intent or provide annual assessments. However, homeschool advocates still rely on the U.S. Supreme Court ruling in Pierce v. Society of Sisters (1925),⁸ a case that started from the Oregon government appealing a lower court decision on the state’s Compulsory Education Act of 1922 that required all children to attend public school. The Court in Pierce⁹ held that parents have the right and duty to decide on their children’s education, which provides a basis for parental choice regarding educational options to this day.

Lawyers advising pods, co-ops, or enrichment providers must therefore help clients draw legal boundaries carefully. The instructional format could be carefully created within a hybrid of homeschool, child care, and private school laws.

For example, a learning pod for homeschoolers in Washington would likely need to be created in partnership with parents (as RCW 28A.225.010(4) requires the certified supervisor and parent to create the lessons) and a certified teacher who is deemed to be supervising the child. The parent would have to submit an intent to homeschool form. The teacher would only be able to provide such instructional support and supervision for up to 30 students, per state rule, and would need to cover all 13 subject areas as listed in RCW 28A.225.010(4). The instruction would have to be in person at least one hour per week with each student being supervised. The students would need to be educated at least the total amount of hours required by state private school statutes (according to Washington’s “Pink Book,” an advisory document from the Office of the Superintendent of Public Instruction, Washington State’s Laws Regulating Home-Based Instruction (2017)).¹⁰ And at the end of the year, the certified teacher would either give the students standardized tests or do written evaluations, showing adequate progress for each student.

Such a program could instead be registered with the state superintendents’ office to run under state private school laws, RCW 28A.305.130, if it maintains minimum approval requirements pursuant to RCW 28A.195.010 and Wash. Admin. Code ch. 180-90. Being a private school means parents can skip the requirement of submitting the homeschool intent form and allow the teacher to have more control over the learning process. But it also means stricter adherence to health and safety issues than in the personal residence of a parent and child, and could cause issues with obtaining liability insurance, as schools are considered different than learning pods or child care programs, and insurance can be much more expensive and possibly prohibitive if coverage is not available for the program’s location.

Private schools or homeschool learning pods still likely require child care licensing if the teacher is providing care without a parent present, which means also having to meet state child care licensing standards. While these standards seek to promote consistency, it should be noted that their enforcement can vary in practice and have financial and time-related impacts on program implementation. For example, one inspector may define a safe play area as a fenced space with age-appropriate toys, while another inspector may decide the whole fence has to be sanded to remove any splinter-causing textures. Another inspector may determine a building with a swinging door at the entrance and a sliding glass door in the main child care area is not sufficient for egress per state child care rules that require swinging doors, and require the sliding glass door be replaced with an additional swinging door.

All of these issues and decisions highlight how integral an attorney’s role can be in supporting the families and educators who pursue these “out of the box” types of learning opportunities.

How Other States Handle Homeschooling

A handful of states have recently changed their laws to allow for new educational models. Georgia’s Learning Pod Act (Ga. Code Ann. § 20-2-690, 2024) exempts pods from child care and private school regulations if they meet safety standards, while Texas and Louisiana allow parental choice in education with few restrictions (HSLDA, 2024).¹¹ Washington, by contrast, has resisted such change. Bills like HB 1615 (2023–24), proposing Education Savings Accounts, and HB 2042 (2021–22), affirming parental rights in education, failed to pass.

Attorneys advising clients in this arena should pay attention to potential new legislation in the future.

Funding and Legal Structures

Because Washington lacks funding mechanisms for homeschoolers and pods, families often self-finance enrichment programs. Attorneys may assist clients in forming nonprofits to access grants (e.g., VELA, YASS Prize, Child Care Partnership Grants) or structuring for-profit entities that can still pursue limited funding opportunities. The legal formation chosen—nonprofit, LLC, cooperative—directly impacts eligibility, liability, and long-term sustainability.

In Summary

Washington’s constitutional and statutory framework places public education at the center of its legal identity, often to the frustration of families seeking alternatives. While homeschooling is legal, it is tightly regulated, and newer models such as pods remain in a legal gray zone. Attorneys practicing in education, nonprofit, or family law must pay close attention to this evolving landscape. As other states expand freedoms, Washington families will continue to seek legal support to navigate statutes and avoid liability.

ABOUT THE AUTHOR

Kathleen Casper Reed is an attorney and educator with extensive experience in education law in Washington state and Georgia, consulting for startup microschools and established educational programs as well as providing services for private and public schools. Reed earned her B.A. and teaching certificate from the University of Washington, her J.D. from Seattle University School of Law, and her M.Ed. and principal certification from Eastern Washington University. She currently runs a K–6 nature-based homeschool program in Maine and advises clients in family, real estate, and estate law through her law firms The Law Offices of L. Kathleen Casper in Washington and Legacy Law GA in Georgia.

NOTES

1. Wash. Office of Fin. Mgmt., K–12 Enrollment (2024), https://ofm.wa.gov/washington-data-research/statewide-data.

2. “Washington State’s Homeschooling Is Up,” Seattle Medium, Sept. 22, 2023, https://seattlemedium.com/washington-states-homeschooling-is-up/.

3. Sami West, “Here’s How Much Private and Homeschooling in WA Has Jumped Since the Pandemic,” KUOW (Dec. 21, 2023), https://www.kuow.org/stories/new-data-more-wa-students-are-enrolling-in-private-school-even-after-the-pandemic.

4. Fiscal. Pol’y Inst. of Wash., “What’s Behind Washington’s Homeschooling Boom?” (May 28, 2024), https://fpiw.org/whats-behind-washingtons-homeschooling-boom/.

5. McCleary v. State, 173 Wash. 2d 477, 269 P.3d 227 (2012).

6. Wash. Rev. Code § 28A.225.010(4) (2024).

7. Bellevue Sch. Dist. v. E.S., 171 Wash. 2d 695, 257 P.3d 570 (2011).

8. Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).

9. Id.

10. Wash. Office of Superintendent of Pub. Instruction, Washington State’s Laws Regulating Home-Based Instruction, 2–3 (2017).

11. Home Sch. Legal Def. Ass’n, Homeschool Laws by State (2024), https://hslda.org/legal.