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MARKING THE MILESTONES: FEATURE ARTICLE
Feature Article: The Good, The Bad, The Inspiring
 
ecently, we spent time reminiscing about the history of the Home School Legal Defense Association with “old-timers” Michael P. Farris, J. Michael Smith, and Christopher J. Klicka, as well as litigation attorney David E. Gordon. We discussed the early years of HSLDA, the way home schooling has changed, and some of their most memorable cases. We found their stories quite interesting . . .

What are some of the events that led up to HSLDA’s founding?
     Farris: Vickie and I decided to home school our daughter Christy. We had independently heard messages about home schooling, and we talked about it and decided that we would try it for a year. When the word got out that we were home schooling our children, I started getting a lot of phone calls.
     Smith: I’d been working with Christian Home Educators Association of California for some time, ever since I started home schooling in 1981. I had a meeting with Mike Farris in Sacramento at a home school conference. He was looking for someone to found the organization with him, and one of the founders of CHEA recommended me. Mike explained the concept, and I said I thought it would work. That must have been in 1982.
      I was representing mostly California families at that time, by writing letters and making phone calls. I’d hate to go back and look at some of those letters today, but they worked then—miraculously.

What were some of the cases that HSLDA handled in 1983?
     Farris: Our first actual case was when we filed a constitutional challenge against the Washington state law. That was a test case. While the case was pending, the Washington legislature changed the law and passed the current home school law there.
     I do remember another really early case. The child had been in the public school around Vancouver, Washington, for kindergarten and first grade and had come out of public school testing below grade level. The mom home schooled for two years and the child was then scoring around the eighth or ninth grade level—about four grades above grade level in almost all subjects. The prosecutor was initiating a case of criminal prosecution for truancy against the family because home schooling, if you weren’t a certified teacher, was illegal in Washington state at the time—at least according to government officials. So I told the prosecutor, “Good, go ahead and file the case. We are looking for a test case. If you do file it, we’ll give this nine year old the GED and once he passes, what are you going to do then?” I never heard from the prosecutor again. So that case is still technically pending. (I don’t think they’re going to pursue it because by now the child would be 24 or 25 years old.)

How many families were members that first year?
     Farris: At the end of the first year there were about 200 member families. We got the word out by going to a few home school conferences in Dallas, Sacramento, and Portland.
      The main problem to overcome the first year was that we didn’t have any staff to speak of. It was basically all volunteer effort. I remember running the first year’s problems out of our house in Olympia before we moved to Washington, DC. I did a whole lot of phoning: “Hello, this is Home School Legal Defense Association . . . ”
      Smith: One of the early challenges was that we didn’t have any paid lawyers the first year or two. Jordan Lorence came in 1984 part time, then we hired Melinda Allen as our first full-time employee, and Chris Klicka came in June of 1985 as the first full-time legal staff member. We didn’t have too many members at that time. Mike Farris and I had divided up the states to address legal contacts. He had east of the Mississippi and I had west of the Mississippi. Board meetings were held over the telephone.

At what point did your “part-time” project overtake your full-time life?
     Farris: I frankly thought that the organization was going to take off. I thought HSLDA would get to be an organization of about 10,000 people the first year, year and a half, because I thought all the home schoolers would join. Instead, we had slow growth rather than rapid growth. The reality was that if the organization had grown as rapidly as I thought it was going to grow, I would never have left Washington state. Because it failed to grow rapidly, we moved to Virginia so that I could work with Concerned Women for America and have a paying job. But I am absolutely confident that that was a way for us to get direction. I am confident that’s where we’re supposed to be and that would not have happened if we’d had the initial rapid growth that I anticipated.
     Smith: When we started the organization, I never thought about working full-time for HSLDA. But I moved to Virginia in March of ’87, because I was interested in doing this kind of work full-time and in getting out of California with my little ones. In spring of ’87, I recall having 3,600 members. I think 30-40% were California members.

What brought you to HSLDA?
     Klicka: My general goal was always to go into constitutional law, like Concerned Women for America or the Rutherford Institute. In the summer of 1984 I had worked as an intern for John Whitehead, and my project was doing an analysis of all the state laws and court decisions regarding home schooling. I started sending out resumes the second half of 1985, and I sent one to Mike Farris for a job at CWA for religious freedom issues. I got a response within three days. Mike said, “I’d like to interview you. I’ve started this organization called Home School Legal Defense Association. You know more about home schooling laws than I do.” Mike and Jordan were coming down to Tulsa within the next month to speak at an education seminar. I met them and was interviewed. I liked them; they liked me. They hired me. As soon as I graduated in May, I went straight to DC and started working part-time while I studied for the bar examination. I came on full-time in August after the bar. I’ve worked here full-time ever since.

What do you remember most about the early days?
     Klicka: Fear. People were afraid. Families wanted to know if it was legal. Many times I couldn’t say it was legal, except from a constitutional perspective—that they had the right to do it. So we would just assert that regardless of whether the state made it legal or not, parents have the right to home school. The state is simply wrong, and the excessive restrictions on home schooling are unconstitutional.
      It was at that point that I put together the chart of the 50 states to give people some basis as to how they could legally home school. It forced me to look at each state to figure out, “Can they be a private school?” “Is there a home school law?” “How do we get around approval?” And that was what we were trying to do in those summaries. We’d send them out to folks who called.

When did you begin to sense that the fear was alleviated? Was it a gradual process or was there a definite break point?
     Klicka: Well, from ’85 on, we saw a pretty steady gain in the legislatures. Up until 1990, three to four states per year were changing their laws. By 1990, people were feeling pretty confident. There were only a very few states that were giving us problems as far as the very right to exist. I’d say about 1990 it shifted. Now the issue is how far can they regulate us, rather than do we have the right to exist. Then the DeJonge case probably put to rest the last really bitter attack on home schooling in any state. And we’ve had so many victories in the courts and legislatures, it’s phenomenal. The fear has gone away and confidence has set in.

What do you see as the major battles of the last ten years?
     Klicka: Discretionary approval was a major battle. In many states the school districts had the authority to determine any type of rules and regulations on home schoolers.
     Smith: And we still have that battle in three or four states—Massachusetts, Rhode Island, and Utah.
     Klicka: Another major fight was over teacher qualifications. We had to slug that out in Iowa, North Dakota, and Michigan for years and years. In Alabama and California, it still is an issue because both state education departments hold the position that a parent has to be a certified tutor in order to home school. However, we have figured a way around it through the church school and private school exemption route.
      I would say that we have the most problems each year in the private school states. There is no uniform home school law. It continues to be a problem, but to a lesser degree, because we’ve probably written to most every school district in California, Kansas, Indiana, Alabama, Texas, Kentucky, and the six other private school states. Essentially we were creating policy in those states without the legislature, just by our interpretation of the laws and winning some cases. We’ve said the same thing over and over and over until it just became the general way of interpreting the law. In Alabama the department of education says you can’t home school unless you’re a certified tutor, but talk to any school district, and they’ll say that you can under the church school exemption.
      Home visits, that was another big one. We’ve reduced that to primarily two states—we’re still slugging it out in Massachusetts courts, and Kentucky has introduced legislation which would mandate home visits.

David, you have been very involved in HSLDA litigation in recent years. What brought you to HSLDA?
     Gordon: In 1988, I started to feel like I should be arguing about something more than the color of a traffic light or the extent of a person’s injury. And I felt that this impression was from God.
      I had an ear to the ground ever since. I checked out positions with other Christian organizations over the years, but nothing ever worked out. In May of 1994, my wife wanted to hear Michael Farris speak at the Memphis Home Education Association’s conference. I was interested and we went. After Mike spoke, my wife looked at me and said, “You need to ask him if they need someone.” I responded, “I was thinking the same thing.” And I came on staff later that year.

Let’s talk about cases: the worst, the best, the most inspiring, and the most recent.
     Farris: All of the cases in North Dakota were bad cases. We were very frustrated trying to get justice there. Prosecutors were able to file briefs, arguing that the reason you need to have certified teachers in the public schools was that kids need to have the experience of being beat up by bullies on playgrounds. It was so ridiculous—in one case they argued that you have to have certified teachers so you could get eye examinations in the public schools. The father was an eye surgeon and the mother a nurse. Certified teachers don’t do eye examinations and if they do, they don’t do them nearly as well as a nurse or an eye surgeon. It was just nuts!
     Smith: The Schmidt case was the most devastating to Ohio home schoolers because the state supreme court established that parents basically had to submit paperwork before they would be able to home school. And, in spite of the fact that the prosecutor on the other side constantly missed filing deadlines and submitted deficient briefs, we lost. Today, the effect of that case is minimal, because the new Ohio home school law provides the notice process and has eased many problems in the state.
      In 1997, the Billiot case in Louisiana came down against us. It involved a Child Protective Services, otherwise known as CPS, contact. The reason for the initial contact was an anonymous report that the Billiot’s two-and-a-half-year-old Down Syndrome child had gotten out of the house and into the street and a neighbor had to take the child back. And there was an allegation that the children were being left without adult supervision. The CPS worker demanded entry into the home and insisted on private interviews with the children. The parents, based upon advice from HSLDA, refused the interviews of the children, but agreed to submit to interviews themselves and did so. This didn’t satisfy CPS. So they went to a judge and, based upon the Louisiana law, got a court order that provided for an interview of the children, separate from their parents. We asked the judge to reverse himself. He refused. We went to the appellate court. We asked them to reverse the ruling. The court refused. We did get a stay, however, from the initial trial judge until we could have these matters heard on appeal. Unfortunately, the intermediate appellate court denied our appeal and, just recently, we lost the appeal to the state supreme court. We filed for writ of certiorari to the U.S. Supreme Court, but that writ was denied.
      We believe that the statute on its face is unconstitutional because it allows social workers to seize children based upon a standard less than probable cause.
      That’s a devastating loss for us in the area of protecting families, no doubt about it.
     Gordon: After our writ of certiorari to the Supreme Court was denied, we did everything we could to help the Billiots through the children’s interviews. We had a lawyer present at the interviews in an adjacent room where she could see and hear the interview. She was behind a one-way mirror and could have objected if she felt that the questioning was out of line.
      I still don’t think that Louisiana’s statute has been fairly analyzed by the courts. No court ever really looked at Louisiana standards for permitting entry into a home for a social services investigation—that standard is reasonable suspicion—because the trial judge ordered that the interview take place outside the home. That’s how the courts sidestepped the question.
     Farris: I think that Billiot shows how low a priority judges are placing on the constitution and on parents rights—constitutional rights generally. The idea that murder suspects have more constitutional rights than parents accused of allowing their child to wander unsupervised into a quiet cul-de-sac is just preposterous. It’s maddening.
      The good news is that Billiot was only a trial court decision. All the higher courts refused to look at it. No higher court ruled against us. So the decision isn’t binding.
      I want to go back to worst cases. The worst case for America—that we have been involved in—was the City of Boerne decision this last June by the U.S. Supreme Court. It declared the Religious Freedom and Restoration Act unconstitutional. (HSLDA played a major role in RFRA—I was the chair of the drafting committee that wrote the bill.) The Court said that our elected officials cannot guarantee our rights at a higher level than they say is the constitutional minimum. So the constitutional minimum for our rights has just become the maximum for our rights as well. It’s a bad day for religious liberty, but it’s perhaps even worse because it’s a bad day for self government. We have nine people appointed for life telling all the elected officials of this country that they passed a law, not that violates the Constitution, but that gives us more rights than the Constitution permits. What a preposterous thing! Self government and religious freedom were given a tremendous blow in that decision. HSLDA filed an amicus brief with others in the City of Boerne case and helped write RFRA. It’s a very, very sad day.
      Generally speaking, it was the more conservative members of the Court and Republicans that voted the wrong way. And that tells us that we’ve got to be much more careful about who our friends are.

What does this mean to the average home schooler?
     Farris: When religious home schoolers have their home school hats on, it doesn’t really make that much of a difference because when parental rights are mixed with religious freedom we have protection for our constitutional rights. But consider what it means for religious people in other contexts: The government wants to say you can’t have a church policy that says you can only have male pastors. Or maybe your church doesn’t want to hire homosexuals. Or your support group doesn’t want to hire homosexuals. Then it would have an impact because the rights of organizations including churches are going to be judged on religious liberty principles alone. Parents’ rights are going to apply to family relationships only, not institutional relationships. We have really opened a Pandora’s box.

What other significant cases has HSLDA worked on, and what impact have they had on the cause of home schooling?
     Gordon: I think the most significant case that we’ve handled since I’ve been at HSLDA is the case of Calabretta v. Floyd. The Richards case, which took place before I joined the staff, had given our lawyers the confidence that the advice they were giving to families not to let social workers and police officers into their homes without a warrant would be backed up by a court. But the Calabrettas were the first family that took that advice and then found that the social worker and police officer insisted that they were coming in anyway. In all the previous cases, the families or the families with our assistance were able to keep the social worker and police officer outside if they didn’t have a warrant.
      The reason the Calabretta case is important is that a federal district court judge agreed with us, that unless there is an emergency, a social worker and police officer must have a warrant before they can go into a house for a child welfare investigation. This case is on appeal in the Ninth Circuit Court of Appeals right now. Whether we win or lose, it’s going to have ramifications around the country. It’s hard to talk about Calabretta in any concluding terms right now, because we don’t know what the courts of appeal are going to do. But at least for now, it has given us confidence that we’re giving advice that courts will stand behind. It has also given us a written decision that we can mail to social workers or police officers who don’t believe that the law requires them to stay outside the house. When a mother is faced at her door by a social worker or police officer demanding entry, it gives her great courage to know that a federal judge has put in writing the fact that she’s not required to let those officials inside her house.
      Since social service investigators violated the privacy of the Calabretta home, several other families have faced similar break-ins. We filed a suit for Robert and Maria Kennedy in California for the violation of their right to be safe and secure in their homes. The case brought on behalf of the Kennedys and their three children against the Los Angeles Department of Children and Family Services and the Covina Police Department was settled for $76,000.
     Klicka: Another recent victory for home schoolers was the Leeper case. That was a class action suit filed by attorney Shelby Sharpe on behalf of Texas home schoolers and several home school service providers, including HSLDA. After ten years of battling back and forth in the courts, in 1994 the Texas Supreme Court affirmed the right of home schools to operate as private schools without regulation. There again, we saw God protecting the rights of His people to educate their children according to His precepts.
      I would say the two best cases we’ve had were the Jeffery case in Pennsylvania, and the DeJonge case from the Michigan Supreme Court. Jeffery was tremendous because we had over thirty families being prosecuted for home schooling, and 501 school districts that had different interpretations of the law. It was endless work. The federal court just swept down after two years and said, “this law is completely void for vagueness and unconstitutional.” It was nice to go back to all of those 501 school districts and say, “see that’s what we’ve been trying to tell you. You didn’t have to take these people to court, you didn’t have to harass them like you did.”
      That was a thrilling decision.
      And of course the DeJonge decision was even more significant, because it brought relief to a state that had been one of the most heavily persecuted states over the last ten years. It knocked out the teacher certification requirement for both religious home schools and private schools. In addition, it ended up being one of the best religious freedom cases that has come down since probably Yoder in 1972. It accurately defined the original intent of the Constitution’s framers. The 38th page of the opinion could have been written by James Madison himself! And DeJonge was especially rewarding because it took so long to get there—eight years.
     Farris: That’s a case that we longed for, prayed for, worked for, for such a long time. It was the most significant victory—not just for HSLDA, but for home schoolers ever, anywhere, anytime, anyplace.
      But the Robin Diegel case in Ohio is the most inspiring case ever. The day before the trial I flew out there and went to Mrs. Diegel’s home. I went out in her backyard, and we sat at the picnic table. I was getting her prepared for trial and was talking to her about her religious beliefs. It was obvious to me that she really didn’t know the Lord even though she had a high respect for the Word of God and was oriented toward Christian things. So I walked her through the steps of salvation, and she prayed to receive Christ that afternoon.
      The next day I walked into the trial. The judge called us into his chambers and said, “Mr. Farris, I just read the Schmidt decision from the Supreme Court of Ohio. You lost that case. You’re going to lose this case, again today.” You know, I’ve been in courts where I thought the judge had made up his mind before we started, but I never had one openly tell me.
      I went out, but I did not tell Robin what the judge said. I had told her the night before that I thought that God was going to do something really powerful in her case to welcome her to His family, and to go home and read the Bible. (I thought maybe she’d read the part in Deuteronomy about stoning false prophets.)
      The prosecutor put his case on first. He called the superintendent. My turn to cross examine came up, and I asked a question I’ve never asked before and I never have asked since. It’s a dumb question. It’s objectionable really. I asked, “Did you get any legal advice before you decided to turn this lady down in her right to home school?” The superintendent should have said, “no.” What could I have said? Rather than do that he tried to justify himself. He said, “Well, I didn’t talk to any lawyers or anything like that but I talked to some government officials.” I said, “Well, like who?” He said, “Well, like the judge here.” I said, “You talked to this judge about this lady’s case before this thing ever came to court?” He said, “Yeah.” You should have seen the judge’s face. There was a newspaper reporter in the courtroom.
      The judge called recess, and he took us back into the chambers. This time he was talking to the prosecutor. He said, “You find a way to approve this lady.” We had some pow-wows in the hall, and she got approved. We went out and announced that in court. The judge was very concerned that the newspaper reporter be informed that this case had been approved and none of this discussion business made it into the press. It turns out the judge just made a good faith mistake. He wasn’t being a bad guy. He was just a brand new judge and didn’t know what the rules were. It worked out. The one question that was the chink in their armor jumped into my head out of the blue. That illustrates better than anything I know who is really the advocate here. It’s not us. It’s God. That is the story of HSLDA—that God is our advocate, and we’re just the conduits.

 

published by Home School Legal Defense Association
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