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November / December 2004

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by James R. Mason III

"Parents choose to teach their children at home for many reasons," says Home School Legal Defense Association President J. Michael Smith, "but the right to homeschool is based upon the two legal pillars of parental rights and religious liberty."

From the earliest days of America's history, religious liberty has been a key value. In November 1620, a small band of men and their families fleeing religious persecution in England and corrupting influences in Holland arrived at Plymouth Bay in Massachusetts. The Pilgrims' search for the freedom to follow their conscience in worship, raising their children, and conducting their lives led them to make tremendous sacrifices and leave a legacy that influenced generations to come.

Also seeking a haven from religious persecution, Quaker William Penn founded the Commonwealth of Pennsylvania in 1681. Immigrants from around the world found safety and opportunity in his new colony—Quakers, Jews, Mennonites, French Huguenots, Germans, Swedes, Scotch-Irish, and others.

HSLDA General Counsel Michael Farris (left) presented oral arguments on behalf of the Newborn family (pictured above).
Following in the footsteps of the Pilgrims' and Penn's commitment to freedom of conscience, homeschooling families today are taking a firm stand for religious liberty in the Keystone State. For 11 years, Home School Legal Defense Association members Dr. Mark and Maryalice Newborn complied with Pennsylvania Act 169 in homeschooling their five children. Their oldest son, Josh, a National Merit Scholar, graduated last year at the age of 15 and is now attending a private college. Each year, the Newborns submitted portfolios, test results, and certified teacher reviews to the Franklin Regional School District, and each year, their conviction grew that their submission to the authoritative role of the secular school district is contrary to their religious faith, which requires them to be accountable only to God. They felt that to submit any longer to the authority of the school district would be a sin.

Then the Pennsylvania General Assembly passed the Religious Freedom Protection Act (RFPA), which was signed into law in December 2002. The RFPA specifically recognized that some generally applicable laws may impose substantial burdens on a person's free exercise of religion. RFPA gave local government officials the authority to exempt religious objectors from those laws.

In the fall of 2003, Dr. and Mrs. Newborn notified the Franklin district superintendent that Act 169 substantially burdened a specific tenet of their religious faith by usurping their God-given jurisdiction over their children's education. Under Pennsylvania law, homeschoolers must keep a "log, made contemporaneously with the instruction, listing reading materials used" and turn that log over to the superintendent at the end of the year. This is in addition to having a licensed teacher evaluate their homeschool and standardized achievement test results. Although the Newborns would continue to provide their children with the same excellent education that they had in the past, they sought an exemption under the RFPA from those provisions of Act 169 that violated their religious faith.

Despite the clear legislative intent of the RFPA, Franklin denied the the Newborns' request for exemption, essentially arguing that the RFPA did not apply to education laws. On February 5, 2004, after the school district refused to exempt the Newborns from Act 169's burdensome procedures and threatened prosecution, HSLDA filed a complaint on the Newborns' behalf in the Westmoreland County Court of Common Pleas. HSLDA's complaint raised the RFPA claims and also challenged Act 169 on federal constitutional grounds.

Franklin moved to dismiss the suit on the grounds that the RFPA did not apply to education. HSLDA General Counsel Michael P. Farris, however, argued before Judge William Ober on July 30, 2004, that the lawsuit should proceed.

"This case is a vital first step in returning to a correct understanding of the God-given authority of parents to have jurisdiction over their children's education," Farris stated. "Religious homeschoolers are substantially burdened in Pennsylvania, and we plan to do everything we can to change this."

Judge Ober denied the school district's attempt to short-circuit the lawsuit, and it is proceeding toward trial.

History of the RFPA
In the landmark case Sherbert v. Verner, 372 U.S. 398 (1963), the U.S. Supreme Court held that for a state law to prevail over an individual's right to freely exercise his religion, the state had to prove that the law was "essential" to achieving a compelling state interest and that it was the "least restrictive means" to accomplishing that interest. This was called the "compelling interest test," and it shielded religious freedom from onerous government regulation for more than 30 years.

But in the 1990 decision Employment Division of Oregon v. Smith, 494 U.S. 872 (1990), the Supreme Court threw out the compelling interest test, holding that in almost all cases, constitutional free-exercise protection did not extend to generally applicable, neutral laws that imposed what it now called "incidental burdens." In other words, unless a law directly attacked a religious practice or belief, Smith held that there is no constitutional protection for religious objectors because the onerous burden is "incidental" to the law's valid purpose.

"The Smith decision reduced the protection of the Free Exercise Clause to little more than an anti-discrimination statute that provides virtually no substantive protection from burdensome laws of general application," says Farris.

In 1993, Congress responded to the Smith decision by enacting the federal Religious Freedom Restoration Act (RFRA). This Act restored the "compelling interest test" in religious freedom cases where neutral laws of general application imposed substantial burdens on religious practice. Mike Farris participated in the drafting of the federal RFRA along with a who's who of legal scholars and religious leaders who were concerned that the Court had eviscerated First Amendment protections.1

Four years after the federal RFRA was enacted, the part applying to the states was struck down by the U.S. Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997). The Court held that Congress had acted beyond the scope of its power in passing the RFRA. In response, several states adopted statutory or constitutional religious freedom acts.2 Now, religious freedom receives more protection from those state statutes than it does from the First Amendment as interpreted by today's Supreme Court.

The Pennsylvania General Assembly enacted the most recent of these state religious freedom laws in 2002. In its legislative findings, the RFPA states, "Laws and governmental actions which are facially neutral toward religion . . . may have the effect of substantially burdening the free exercise of religion. However, neither State nor local government should substantially burden the free exercise of religion without compelling justification." The RFPA extended to all previously enacted statutes, ordinances, and regulations in the state of Pennsylvania (with only a few exceptions). It created a religious exemption procedure for individuals whose religious faith is substantially burdened by certain state laws.

Pennsylvania's vague homeschooling law
Besides seeking an exemption from Act 169 under the newly-enacted RFPA, HSLDA is also arguing that the act is unconstitutionally vague. Prior to 1988, homeschooling in Pennsylvania was technically legal only if instruction was conducted by a "properly qualified private tutor." This phrase in the law essentially allowed each of Pennsylvania's 501 school districts to determine who was properly qualified. Standards varied widely from district to district and ranged from virtually no one being qualified to far more lenient approaches. The lack of clear standards in the law became an impediment to the right to homeschool. Some districts adopted their own written standards while others simply entrusted an official with making the decisions based on his own understanding.

In 1988, HSLDA's landmark case Jeffery v. O'Donnell struck down the qualified tutor provision as being unconstitutionally vague. What made the qualified tutor provision vague was the fact that it failed to establish clear guidelines and gave government officials unbridled discretion in approving homeschools. Pennsylvania Act 169 was adopted in direct response to the Jeffery case.

Unfortunately, Act 169 suffers from its own vagueness problems. In 1972, the United States Supreme Court case Grayned v. City of Rockford set out a three-prong standard to determine when a law violates due process because of unconstitutional vagueness. First, a law must be specific enough that a person of ordinary intelligence can have a reasonable opportunity to avoid breaking it. Second, a law must have explicit standards for those who enforce it. Third, when a law regulates basic First Amendment rights (such as religious freedom), it must not inhibit the exercise of those freedoms. Act 169 violates every prong of the Grayned case law.

Although Act 169 requires parents to keep a "log made contemporaneously with the instruction," many school districts differ as to what that log requires.

So if a family moves from one district to another, they might suddenly face a completely different interpretation of the requirements for the contemporaneous log. (This violates the first prong of Grayned.) And under Act 169, superintendents may essentially shut down a homeschool if they determine that "appropriate education" is not occurring.

Instead of providing explicit standards for superintendents (Grayned's second prong), Pennsylvania's current home education law hands them unbridled discretionary review of parents' education programs. As a result, school districts across the state implement widely diverging policies which range from requiring face-to-face meetings to not even requiring the submission of a portfolio. One of the most extreme policies comes from the Upper Dauphin district, which bans homeschooling more than four children in a single family at one time.

By failing to establish specific standards for enforcement, Act 169 inevitably inhibits the free exercise of basic First Amendment rights (Grayned's third prong) and thereby violates the rights of families who believe they are accountable to God, not the state, for their children's education. In fact, a landmark case, Wisconsin v. Yoder, cited in Jeffery v. O'Donnell, says, "the [First Amendment] is indeed implicated anytime the rights of parents and religious freedom conflict with the right of the state in exercising its legitimate power to set standards for education."

In addition, Act 169 violates the Fourth Amendment's Due Process Clause, which forbids procedures that could result in the loss of liberty unless the government decision maker is neutral. Procedurally under Act 169, the superintendent who reviews the portfolio has a financial stake in determining whether or not adequate education is occurring. Since the amount of state funding a school district receives is based in part on how many students attend its public schools, a superintendent stands to gain state funding by discouraging or disqualifying home education programs.

A deepening conviction
Eleven years ago, Thomas and Babette Hankin of the Bristol Township School District began homeschooling their oldest son with a preschool program. With their son three years shy of the compulsory attendance age, they did not feel that they needed to contact the school district, but as time went on and they began to homeschool their other children, the Hankins' reasons for not reporting deepened into a solid religious conviction.

Mrs. Hankin, who had been a teacher before she began homeschooling her own seven children, explained to HSLDA, "The public school system is an ungodly institution. With all the reporting, we would have been too much a part of it." Mr. Hankin also felt that reporting to the school district would compromise his God-given position as the head of his family and the authority for his children.

When the district superintendent discovered that the Hankins had not filed an affidavit required by Act 169, the district issued a warning that if they did not enroll their children in school within three days, they would be charged with truancy.

HSLDA preemptively filed a civil complaint on the Hankins' behalf against the school district on April 22, 2004, asking for a stay of the truancy charges pending the conclusion of the litigation.

We have since asked to consolidate the Newborn and Hankin cases in the Westmoreland County Court of Common Pleas.

Religious exemptions work
According to the RFPA, families like the Newborns and the Hankins should be able to secure a religious exemption from laws—such as Act 169—that burden the free exercise of their religion. In effect, the Pennsylvania General Assembly has adopted a universal exception to all of its generally applicable statutes.

This principle of religious exemption has already been applied to education in other states. In Virginia, for example, an education statute provides that school boards "shall excuse from attendance at school any pupil who, together with his parents, by reason of bona fide religious training or belief, is conscientiously opposed to attendance at school." According to the Virginia Department of Education's website, school year 2003–2004 statistics reveal that 18,000 children were homeschooled under Virginia's equivalent of Act 169, while 5,600 were homeschooled under the religious exemption provision. Under the religious exemption, parents need not have any further contact with the local school district.

After HSLDA filed the Newborn and Hankin lawsuits this spring, the Pennsylvania Department of Education emailed all 501 school districts, stating that the RFPA did not apply to Act 169. This rejection of the RFPA defied the clear legislative intent of the Pennsylvania General Assembly, leaving religiously motivated homeschoolers no recourse but to appeal to the courts and their supreme Judge for justice and mercy.

It is worth noting that several other families in Pennsylvania sought a religious exemption from their local school districts and were accommodated without filing a lawsuit. (Because of the department's email, these families wish to remain anonymous.)

We at HSLDA are doing everything we can to pave the way for greater freedoms for all Pennsylvania homeschoolers. If the Hankin and Newborn lawsuits are successful, Pennsylvania parents whose religion teaches that children are a heritage from the Lord, not mere creatures of the state, will be able to fully exercise their family jurisdiction. Whenever homeschooling rights are reinforced in one area, the sound of liberty reverberates more clearly throughout the land.

We support our members regardless of their reasons for homeschooling, and we believe that each member—in court or not—is working together with HSLDA to leave a legacy of freedom to our children's children. Mrs. Hankin, who traces her family's lineage to colonial days, points out that the Pilgrims' flight to America resulted in the heritage of liberty for their descendants.

Instead of fleeing bad laws, the Hankins and the Newborns are asking the state to enforce good laws and banish vague laws. "The General Assembly did not adopt the RFPA to be a feel-good statute," says HSLDA President Mike Smith. "The courts now have the opportunity to protect the free exercise of religion in Pennsylvania to the benefit of thousands of religiously motivated homeschoolers."

William Penn and the Pilgrims would be heartily pleased.


1 For an in-depth discussion of the federal RFRA before it was invalidated by the Supreme Court, see Michael P. Farris and Jordan Lorence, Employment Division v. Smith and the Need for the Religious Freedom Restoration Act, 6 Regent U.L. Rev. 65 (1995).

2 Alabama (1999), Constitutional Amendment No. 622; Arizona (1999), A.R.S. § 41-1493 et seq.; Connecticut (1993), Conn. Gen. Stat. § 52-571b; Florida (1998), Fla. Stat. § 761.01 et seq.; Idaho (2000), Idaho Code § 73-401 et seq.; Illinois (1999), 775 ILCS 35/1 et seq.; New Mexico (2000), N.M. Stat. Ann. § 28-22-1; Oklahoma (2000), 51 Okl.St.Ann. § 51; Pennsylvania (2002), 71 P.S. § 2401 et seq.; Rhode Island (1993), R.I. Gen. Laws § 42-80.1-1 et seq.; South Carolina (1999), S.C. Code Ann § 1-32-10 et seq.; Texas (1999), Tex. Civ. Prac. & Rem. Code § 110.001 et seq.

About the author

HSLDA Litigation Attorney James R. Mason III has defended homeschoolers from truant officers, school superintendents, and social workers in the courts of Missouri, West Virginia, North Carolina, Rhode Island, Iowa, New Jersey, New York, Pennsylvania, Vermont, and California. He obtained his undergraduate degree at Oregon State University and his law degree at Regent University. Jim served in the United States Navy and is a veteran of Operation Desert Storm. He and his wife, Debbie, homeschool their seven children in Northern Virginia.