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

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鈥檛 like what they saw.

鈥淭hey started questioning my teachers and then asking me a bunch of questions: how many students we had, the ages,鈥� 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鈥� relationship with the program by adding background checks and training mandates.

She wasn鈥檛 surprised a couple weeks later to receive a from the Pennsylvania Office of Child Development and Early Learning. But she鈥檚 not fighting it alone.

The Institute for Justice, a leading libertarian law firm, has taken her case. The attorneys argue that Roots is not childcare but rather a leading example of what the homeschoolers to do, like join co-ops and 鈥渂and together for sharing resources, ideas and planned activities.鈥�

As the demand grows for nontraditional learning arrangements, many, like Roots, don鈥檛 fit a traditional public, private or homeschooling mold.

鈥淲e鈥檙e seeing this square peg, round hole problem where the government is forcing these new models into old regulatory boxes,鈥� Michael Bindas, senior attorney, said in an interview with .

With its action in Pennsylvania, the firm is launching a new Education Entrepreneurship Project after handing its state-level work off to 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鈥� 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鈥檚 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 鈥渆mpowered parents to make the decisions that best for their kids,鈥� he said. But now, the 鈥渟upply side is restricted by these irrational and outdated laws.鈥�

Pennsylvania doesn鈥檛 see it that way.

鈥淎 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,鈥� 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.

鈥淚t鈥檚 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,鈥� Bindas said.

鈥楤ypass safety standards鈥櫬�

Pennsylvania doesn鈥檛 have an education savings account. But in states that do, , 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 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 in the early 1990s that made it easier for parents to homeschool.

鈥淚t took awhile to get to a new equilibrium of policies and I think that鈥檚 just the situation we鈥檙e in now,鈥� he said. Some states may 鈥渃arve out a new category鈥� for microschools, he said. was the first to do so in 2022. But for now, they are 鈥渆ither childcare or private schools. I can鈥檛 imagine that they wouldn鈥檛 be in one of those categories.鈥�

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.

鈥淭he whole intention of this federal voucher program is to incentivize private schools,鈥� said Wead茅 James, senior director of K-12 policy at the Center for American Progress, a left-leaning think tank. The organization for tighter regulations on microschools. 鈥淲ill those schools be able to bypass safety standards and zoning regulations to set up shop?鈥�

She pointed to Florida as one example of a state that has 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.

鈥淚f these smaller models of schooling become more widespread, what should those environments look like?鈥� James asked. 鈥淲hat 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?鈥�

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

鈥淭here 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,鈥� he said.

鈥楧on鈥檛 have a reserve鈥�

In some cases, programs facing regulatory and financial challenges are forced to shut down, leaving parents and staff scrambling for other options. That鈥檚 what happened with Burbrella, a North Carolina microschool serving neurodivergent students that 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鈥檛 suitable for a school and she would need to make $280,000 worth of renovations.

鈥淲e don鈥檛 have a reserve. We don鈥檛 have a large board. We don鈥檛 have donors that can support us in times like this,鈥� she said.

The complications didn鈥檛 end there. When the facility didn鈥檛 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鈥檛 pay what she still .

鈥淲e had to lose a lot of families who needed full-day learning that we couldn鈥檛 offer in this building,鈥� she said. 鈥淲e received tons of phone calls and emails from the [state] Department of Labor because of staff complaints.鈥�

She鈥檚 been working with the , 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.

鈥淲e鈥檙e always pushed to take the vouchers. We鈥檙e always pushed to become ESA-friendly,鈥� she said. 鈥淏ut when we don鈥檛 meet the parameters or requirements to continue to get ESA, this is what happens.鈥�

Now she鈥檚 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 鈥渉unker down鈥� 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.

鈥淚 know we would lose families,鈥� 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 to run a program for students with disabilities out of her home. The county鈥檚 Planning and Zoning Commission recommended denial of the permit.

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 the state鈥檚 law prohibiting anyone from teaching a foreign language to children in eighth grade or younger.

In , 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.

鈥淭hey were the education entrepreneurs of their day,鈥� Bindas said. 鈥淭he 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鈥檚 education entrepreneurs.鈥�

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