The Home School Court Report
VOLUME XI, NUMBER 3
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1995
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Kansas Family Taken to Court; State Awaits Decision

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Kansas Family Taken to Court; State Awaits Decision

Like 5,000 other Kansas families, Donna Goodner of LaHarpe, Kansas, elected to teach her daughter, Zolene, at home. Little did she know that officials in her small, rural county of Allen take the position that such education is illegal. And they would take her to court to prove it.

There is no home school statute in Kansas, so every parent must satisfy the compulsory attendance law, KAN. STAT. ANN S. 72-1111, which states:

    [E]very parent or person acting as parent in the state of Kansas shall require such child to attend continuously each school year (1) public school , or (2) private, denominational or parochial school taught by a competent instructor for a period of time which is substantially equivalent to the period of time public school is maintained in the school district .

In Kansas, the home school is a "private" school, the parent is the "competent instructor" and the days of instruction are equivalent to the public school requirement. This interpretation of the law has been followed with few exceptions by the State Board of Education and county attorneys across the state.

However, the Allen County attorney, Nanette Kemmerly-Weber, contends that the 1983 Kansas Supreme Court case of In re Sawyer stands for the proposition that home schools are per se illegal in Kansas because they are not "private" schools. She then argues that even if some home schools are valid "private" schools, Mrs. Goodner's school is not, because she is not a "competent instructor." Mrs. Goodner has a G.E.D. and no teaching certification.

It is true that the Sawyer opinion was a harsh blow to home schools. In Sawyer, the Kansas Supreme Court affirmed the trial court's decision against a home school family, saying, "We find the Sawyers' plan, though well-intentioned, a thinly veiled subterfuge attacking compulsory school attendance." But Sawyer does not mean that home schools are not valid private schools in Kansas. The State Attorney General and Department of Education have taken the position that home schools are "private" schools if they are not a sham, but are genuine places of learning.

Over the last six years, school and government officials have occasionally questioned the validity of a home education program, but home school parents have been able to satisfy the officials that the program is not a sham, but is a bona-fide private, non-accredited school at which competent instruction is being imparted. The cases have generally been dismissed before trial. In fact, this May was the first time in six years that a home school family had to go to court to defend its education program.

Perhaps it is the rapid growth of home education, or the rising influence of conservatism, or the mindless connection of home schoolers to acts of brutality like Oklahoma City. For whatever reason, Allen County, Kansas, is challenging the right of parents to teach their children at home.

On May 19, 1995, Mrs. Goodner, along with Home School Legal Defense Association counsel David Gordon and local counsel Steven Wilhoft, entered the Allen County District Court to answer the charge that she had violated the state's compulsory attendance law. If the allegations against Mrs. Goodner were proved, the court could order Zolene removed from the home or returned to the public school.

David Gordon and Steve Wilhoft knew they were entering a hostile courtroom on May 19. Their objective was to present evidence on behalf of the Goodners demonstrating first, that home schooling is legal in Kansas, and second, that Mrs. Goodner is "competent" to instruct her child.

But the court-appointed law guardian and the county attorney came armed with inherent hostility, fears, and ignorance regarding home education. HSLDA learned while in court that just one week earlier, a non-HSLDA member family had been in the same courtroom, before the same judge, and facing the same county attorney. The non-member family's program of home instruction had been declared illegal, and the children were ordered back to the traditional classroom.

The court-appointed guardian and county attorney called upon their outdated ideas to raise questions in the judge's mind about Mrs. Goodner's ability to teach the higher sciences and mathematics, as well as about the child's social isolation. The mouth of Mrs. Goodner's expert witness was stopped at every opportunity by opposing counsel, who did not want to hear the truth about teaching qualifications, academic success, or social maturity.

Mrs. Goodner testified clearly that she employs a curriculum called Accelerated Christian Education (ACE), a workbook approach to learning with monthly workbooks for five subjects. Mrs. Goodner's school meets five days a week from 8:00 a.m. to 12:00 p.m. The work is graded each day and a test is administered at the conclusion of each workbook.

Dr. Brian Ray, professor at Western Baptist College in Salem, Oregon, and President of the National Home Education Research Institute, testified that the curriculum Mrs. Goodner is using is respected and widely used in traditional private schools and private home schools. Dr. Ray further testified that Zolene is making academic progress within normal limits for a child her age and the materials appear to be appropriate for her grade level. Though the county attorney and law guardian objected to just about every opinion Dr. Ray gave, Dr. Ray was permitted to state that Mrs. Goodner is "competent" to teach Zolene. Dr. Ray explained that competence is establishing an environment in which the desired outcome is achieved—namely, learning. As a matter of fact, he reported, studies have demonstrated that teacher certification and licensure bear no correlation to learning.

Jim Farthing, President of the Teaching Parents Association of Wichita, was also present to testify on behalf of Mrs. Goodner. Mr. Farthing testified that approximately 2500 Kansas families have registered their home school with the Department of Education as a private, non-accredited school according to state law. He also explained to the court the benefits and opportunities available to home schooling families in Kansas, including conferences, workshops, curriculum fairs and cooperative field trips.

The county presented no evidence pertaining to home education or the particular Goodner school. Their argument simply centered on the opinion that home instruction is not a "private" school and that even if it is in some instances, Mrs. Goodner's G.E.D does not qualify her to teach.

HSLDA is convinced that in spite of the fact that Mrs. Goodner bore no burden of proof, she demonstrated to the court through her witnesses that her parental love and concern for her child's development has been translated into a systematic and comprehensive home instruction program. Home schooling is legal in Kansas, and a loving parent like Mrs. Goodner is more than competent to teach in that school.

The judge was interested in David Gordon's closing argument, pointing out the Kansas Attorney General opinion recognizing home schools as "private" schools and three district court decisions after Sawyer that found home schools to be valid private schools. Please keep the Goodner family in your prayers—Mrs. Goodner reports that Zolene is not concentrating well in school, distracted by the impending decision and fearful that she will be forced to return to the public school. Briefs have been submitted following trial, so Kansas awaits a decision that could touch the lives of all of its home schoolers.