Home School Court Report
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VOLUME X, NUMBER 4
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JULY / AUGUST 1994
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Victory! Texas Supreme Court Protects Home Schooling

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C O V E R   S T O R Y

Victory! Texas Supreme Court Protects Home Schooling

On June 15, 1994, the Texas Supreme Court handed down a unanimous decision in favor of the home school plaintiffs in Texas Education Agency, et. al. v. Leeper, et. al (No. D-2022). The rights home schoolers enjoyed since the first decision of the Leeper case in 1987 remain securely in place. In fact, the Texas Supreme Court affirms the right of home schools to operate as private schools without regulations. Special congratulations go to Shelby Sharpe of Fort Worth, Texas, who has represented the Leeper plaintiffs since 1985. We certainly give God the glory for protecting the rights of His people to educate their children according to His precepts.

History of the Leeper Case

Shelby Sharpe filed the Leeper case as a class action suit in 1985 on behalf of Texas home schoolers and a number of home school service organizations, including the Home School Legal Defense Association. This action sued every school district in the state of Texas for violating the civil rights of home schoolers. At that time over 150 families throughout the state had been prosecuted for home schooling their children. From 1981 to 1985, the Texas Education Agency established a policy making home schooling illegal in Texas, since the compulsory attendance statute did not specifically mention home schooling. Over the next three years, we spent much time negotiating with and combating hundreds of school districts to preserve home schoolers' rights to continue to home school. By God's grace, not a single HSLDA family had to stop home schooling because of the state's attempts to shut them down.

Finally, in 1987, the District Court in Tarrant County ruled a home school had the same status as a private school and therefore was legal. The Court also placed an injunction on all school districts prohibiting prosecution of home school families. Unfortunately, the harassment did not end, although the intensity lessened. Illegal school district policies that far exceeded the Leeper decision and the Texas Education Code continued to plague home schoolers. We extended much effort dealing with local school districts on behalf of HSLDA members, explaining that the districts had no right to approve home school curriculum.

In 1991, the Court of Appeals affirmed Leeper, stating further that the Texas Education Agency "deprived the home school parents of equal protection under the law," since their private schools in the home were unfairly discriminated against "on the sole basis of location in the home."

Highlights of the Texas Supreme Court Decision

The recent decision by the Texas Supreme Court is 30 pages long. We will briefly summarize several of the aspects of the decision and point out one potential problem.

1. First of all, the Texas Supreme Court lifted the permanent injunction against school districts prosecuting home schoolers. The Court said there is "no showing that school officials will refuse to abide by our decision in this case." Lifting the injunction is routine.

2. Secondly, the Court reiterated the history of home schooling in Texas, stating that at the beginning of this century "no more than ten percent of school-age children attended public schools, according to the uncontradicted evidence at trial and as there were few private and parochial schools in the state, many children were taught at home." The Court emphasized that from 1915 until 1981 "a child pursuing a bona fide course of study at home designed to meet the basic education goals of reading, spelling, grammar, mathematics, and good citizenship was considered to be attending a private school."

The Court also emphasized that the compulsory attendance law of 1915 "did not end home schooling. . . and the state never attempted to prohibit or even restrict home schooling or to allege a violation of the compulsory attendance law based solely on a child being taught at home until 1981." The Court then pointed out that the Texas Education Agency in that year had a staff attorney write an opinion which stated that "the compulsory attendance laws of the state of Texas did not permit students to be taught at home." This began the rash of prosecutions across the state.

3. The Court made it clear that the State Board of Education's resolution in 1986 which defined home schooling did not moot the Leeper case; nor was the Board's attempt to regulate home schooling enforceable by law. That resolution attempted to define a home school as one that had a written regular plan of instruction and instructed students in facilities that "comply with applicable local fire and sanitation codes." Standardized achievement tests also had to be annually administered and submitted to the local public school. The Court agreed with the Texas Legislative Counsel that the State Board of Education "lacked authority to clarify 21.033(a)(1)" and cannot implement legislative policy.

4. The Court completely upheld the lower court's decision by stating "we conclude that the District Court's declaration of the meaning of 'private school' in 21.033(a)(1) as it relates to home schools is clearly correct." The Court emphasized that a home school has the same status as a private school provided it uses a written curriculum and teaches reading, math, spelling, grammar and good citizenship.

HSLDA still maintains that local school districts do not have the authority to review and approve home schoolers' curriculum, nor do they have the authority to make home visits. Furthermore, home schoolers do not have to initiate contact with the school district unless they remove their children from public school. If, however, the school district contacts you first, you have the obligation to give a short written assurance that you are following Leeper. Call our legal staff at HSLDA if you are contacted by the school district.

5. Out of the entire 30-page opinion, there is one paragraph which may be abused by local school districts.

"As we have noted above, plaintiffs [home schoolers] argue that TEA has no authority to promulgate rules construing 21.033(a)(1). The decision we reached does not require that we address this argument today. On the other hand, nothing in our opinion precludes the TEA from setting such guidelines for enforcement of the compulsory attendance law as are within its authority. Specifically, the TEA is not precluded from requesting evidence of achievement test results in determining whether children are being taught in a bona fide manner. While administration of such tests cannot be a prerequisite to exemption from compulsory attendance law, we do not preclude the TEA from giving this factor heavy weight. Should the State Board of Education choose to promulgate additional rules under the Administrative Procedures Act, its authority to do so and the propriety of such rules will be subject to judicial review." [Emphasis ours.]

Obviously, some school districts may try to use this language to impose testing on home schoolers. However, any school districts that make such attempts would clearly exceed their authority under the Texas compulsory attendance statute, which gives them no authority to mandate testing. Furthermore, the Texas Supreme Court is clearly not saying that the TEA may mandate evidence of achievement test results. The Court simply says that they have the right to request evidence of achievement test results. This is the same language that the District Court used in Leeper back in 1987. Home schoolers, under the 1987 District Court decision and the Texas Supreme Court decision, still have the right to choose whether or not they want to submit test results if the local school district requests such results. HSLDA continues to recommend that its members not submit testing results to the local school district, since it is not mandatory and will simply cause additional scrutiny of their home schooling.

The Supreme Court does say that the TEA could give a factor of test scores "heavy weight." This simply means truant officers in local school districts have discretion on weighing certain factors to determine whether or not they should bring truancy charges against a home school family. If a family declined to submit test results requested by the school district, the school district may use it as a factor in their discretionary decision to bring a criminal truancy charge against the family. However, once in court, the burden is still on the school district to prove the family is not operating a home school in a bona fide manner. Based upon our reading of the law in Texas, we hold that the TEA does not have authority to regulate private schools or home schools, since that authority has not been given to them by the Legislature.

In conclusion, the Leeper case decision by the Texas Supreme Court is a victory. Home schoolers' rights are solidly protected. However, certain abuses are expected because of some of the "vague" language the Texas Supreme Court used regarding testing.

Upcoming Revision of the Texas Education Code

At present, we are working with the Texas Home School Coalition to monitor the complete revision of the Texas Education Code by the Legislature in 1995. The outcome of the November elections will weigh heavily on the ultimate outcome of the revision of the Education Code. We have written two sentences to add to the Texas Education Code which would simply codify Leeper, insuring that the definition of a "private school" includes parents teaching their children at home and adding the four additional subjects (math, spelling, grammar and reading) to good citizenship. We believe such language could realistically be added to the Code, secure the Leeper decision, and continue to completely protect the right of parents to teach their children at home without being tested or monitored in any way.

If this language actually becomes part of the package submitted to the legislature, we will notify all our members in Texas to contact their state legislators to vote to preserve that language in the upcoming revisions. We will also keep you posted on any other developments which will require action to your state legislators. Please pray for the upcoming legislative session in January, 1995, and be prepared to respond quickly to your legislators.