Home School Court Report
Current Issue | Archives | Advertising | About | Search
Vol. XXII
No. 3
Cover
May/June
2006

In This Issue

SPECIALFEATURES
REGULARCOLUMNS
ANDTHEREST
Cover Story
Homeschoolers Unite for Freedom
Next Page
- disclaimer -
Are You In?

More About HSLDA, IDEA

Most homeschooling families graduate their children without ever meeting a truant officer or receiving a frightening notice from their local public school. In large measure, today's freedom to homeschool was won in battles fought by pioneers of the early homeschooling movement. But every year, families still stumble across dangerous interpretations of the law, or find themselves challenged by government authorities who refuse to abide by the law. Their battles are the battles of all homeschoolers.

During the first half of 2006, homeschoolers achieved three important court victories, which culminate years of teamwork by Home School Legal Defense Association attorneys and the families involved, along with our members' prayerful support.

“At Home School Legal Defense Association, our primary mission is to help our members stand up for their right to direct the education and upbringing of their children,” says HSLDA President Mike Smith. “We could not do this without the combined strength and determination of thousands of member families. Parents uniting on behalf of freedom are ensuring that lawmakers and judges remain faithful to the law and parents' rights.”

Eight Circuit victory: Scott Fitzgerald (second from left) shakes hands with HSLDA Lititation Counsel Jim Mason, flanked by parents Joann and Ron Fitzgerald.

Missouri: Protecting the rights of homeschoolers with special needs

“The victory in Fitzgerald v. Camdenton R-III School District is going to help homeschooling families all over the country,” says James Mason, HSLDA Litigation Counsel. “In Fitzgerald, the court recognized that homeschooling parents may provide for the special needs of their children without undue interference from meddling school officials.”1

Scott Fitzgerald of Camdenton, Missouri, struggled increasingly with reading and pronunciation in his public school classes.2 Dyslexia had always hampered his academic pursuits, but it was becoming more noticeable as Scott's assignments required more reading and verbal exercises. Though Scott's mother, Joann Fitzgerald, had continually requested that her son be evaluated to receive special needs services from the school, officials had never considered Scott's condition severe enough to merit special attention. When Scott was 10, officials again told Joann that Scott did not need an evaluation and would get along fine. Witnessing firsthand her son's growing difficulty with schoolwork, Joann continued to ask for help from the school-and continued to receive unsatisfactory answers.

Frustrated, Joann and her husband, Ron, decided to withdraw Scott from public school and begin homeschooling him. They were unprepared for the school's startling response. Shortly after they started homeschooling, the Fitzgeralds received a letter from the school, requiring them to submit Scott for a special needs evaluation.

“Some schools mistakenly think that the Individuals with Disabilities Education Act (IDEA) requires them to evaluate homeschooled children with special needs, even if a child's parents don't desire public services,” explains Jim Mason.

Troubled by the school's inconsistent policy, the Fitzgeralds refused to submit their son for an evaluation, explaining to the school that Scott had already been privately evaluated, his special needs were being addressed, and the family no longer wanted public services. “I just wanted them to leave me alone and let me teach my child,” says Joann.

The school district responded by taking the issue to a hearing panel, which upheld the school's demand that Scott be evaluated.

In October 2004, HSLDA filed a complaint in the U.S. District Court against the school district and the Missouri Department of Education on behalf of the Fitzgeralds. “We argued that IDEA did not require homeschooled students to be evaluated if they refused public school services,” Mason explains. When the district court also ruled against the Fitzgeralds, HSLDA appealed the case to the Eighth Circuit Court of Appeals, where Mason defended the Fitzgeralds in October 2005. Just prior to the October court date, HSLDA had received valuable support from the U.S. Department of Justice, which wrote a brief supporting our argument.

On March 1, 2006, the Eighth Circuit Court of Appeals overturned the previous two decisions and ruled in favor of the Fitzgeralds. The three-judge panel ruled unanimously that “[w]here a home-schooled child's parents refuse consent [to a public special needs evaluation], privately educate the child, and expressly waive all benefits under the IDEA, an evaluation would have no purpose.”3

Jim Mason called the Fitzgeralds that day to report the good news. “I dropped down to my knees and thanked God,” says Joann. “There have been a lot of people praying for us.” The decision was a “big relief,” says Ron. “A lot of stress came off of our shoulders . . . Now we can get on with homeschooling.”

Scott, also very happy about the court's decision, adds, “I want the kids who read this to know that it's important to stand up for their rights.” Scott is now 13 and plans to attend college after being homeschooled through high school. He hopes to become a lawyer, a longtime dream that was fueled by his interaction with HSLDA attorneys.

“The Fitzgerald case has set valuable precedent for other similar cases, but it is also a victory in the broader battle for parental rights,” says Jim Mason.

Dared to stand up for parental rights: Rick Bentley (now married to Apryl, right) helped all parents in New Mexico.

New Mexico: Victory over CPS

Social worker investigations trigger many of the calls our legal staff receive from HSLDA members. Because public school officials, relatives, and others still view home education with suspicion or doubt, the slightest reason can sometimes provoke them to report a homeschool family to Child Protective Services. Though the majority of these reports or accusations are unfounded, the effects of social worker investigations on innocent families are long-lasting and traumatic. (In circumstances such as the following, where social workers clearly violate a homeschool family's Fourth Amendment rights, HSLDA may in its discretion take the case in an effort to establish legal precedent, even if the family is not a member.)

In the case of homeschooling dad Rick Bentley, the two social services investigations forced on his family were wholly unwarranted. A single father of two teenagers, Rick took a stand for his constitutional rights as a parent, an action that resulted in greater constitutional protection for all New Mexico parents.

In February 2004, an anonymous report to the New Mexico Children, Youth and Families Department (CYFD) alleged that Rick Bentley neglected both of his children and sexually abused his daughter. CYFD contacted Mr. Bentley, notifying him that allegations had been made against him, but not revealing the nature of the accusations.

Complying with the social workers' demand, Rick drove his children to the CYFD office (more than an hour's drive from their home) where they also met Rick's mother, who had driven 90 miles from Albuquerque to support her son and grandchildren. When the CYFD workers demanded to interview the children privately, Rick stated he would not allow the interview unless the children's grandmother was present. The social workers acquiesced, interviewed the children, and found that the reports of neglect and abuse they had received were baseless.

Rick was shocked and angry when the social workers told him the nature of the allegations against him. “I was angry at CYFD for not exercising any difference in judgment on an anonymous tip as opposed to someone who would give their name and list specific times and dates of the supposed problems,” he says. A month and a half later, the case was closed as unfounded.

That August, a police officer appeared at the Bentley home, informed Mr. Bentley that a second report of abuse and neglect had been made against him, and demanded that CYFD be allowed a second interview with the children—this time without other family members present. When Rick refused to yield his children without a court order, the officer threatened him with arrest and loss of custody of his children. Finally, Rick complied. “You feel helpless not knowing what to do,” he says.

After the officer left with his children, Rick drove to the CYFD office, where he had been told the officer was taking his children. Instead, he found that his children had been transported to a “safe house,” where they were being privately interviewed by social workers. Still unable to find any evidence against Mr. Bentley during this second interview, the social workers again concluded that the charges against him were completely groundless.

This time, however, Rick was a member of HSLDA, having joined in April 2004. He contacted our offices following the second round of unfounded allegations. In the summer of 2005, HSLDA filed a lawsuit on his behalf in the federal district court of New Mexico against CYFD and the police department. We argued that Mr. Bentley's Fourth Amendment right to privacy and his right to be free from unreasonable seizure had been violated.

Desiring to end the case quickly without admitting any wrongdoing, CYFD and the police department agreed in February 2006 to settle and to compensate Mr. Bentley for the violations of his parental rights.

The Bentleys are not the only winners, however. Partly in response to this case, the state of New Mexico revised its abuse and neglect investigation procedures to comply with federal law; social workers must now be specifically trained to understand and act in conformity with the constitutional rights of parents.

“It's terrifying to find a strange police officer at the door saying that if you don't comply with his demands, he'll take your children,” says HSLDA Staff Attorney Darren Jones, who worked with Jim Mason on the Bentley case. “This kind of constitutional violation is the nightmare of every parent.”

“I hope that others don't have to go through the hassle and fear and trauma,” says Rick Bentley. “My kids were fairly older children (in their early teens) during the investigations, and it was still tough on them. My whole intent [in filing a lawsuit] was mainly to get the social worker procedures changed.”

&ldquo:It was very enjoyable working with Darren Jones, Scott Somerville, Jim Mason, and Melchior Savarese, our attorney in Albuquerque,” he adds. “I appreciate them and I've already put in my renewal for two years for HSLDA. There's no way that I could have done this on my own.”

Darren Jones applauds Rick Bentley for guarding his rights as a father. “It just took one dad who dared to stand up for his rights,” he says. “He won, and he also helped every other parent in the state of New Mexico.”

Wisconsin: Discrimination halted

After more than six years of legal proceedings, the Department of Veterans Affairs (VA) has finally recognized homeschooling as a legitimate form of education.

George Theiss of Wausau, Wisconsin, has been receiving veteran's disability benefits (including dependent income for his children) since 1991, when a worsening disability he received as a Marine rifleman in Vietnam prevented him from working full-time any longer. George and his wife, Christina, have homeschooled their eight children since the oldest (now 28) was in 1st grade.

When John Theiss turned 18 in November 1999, the VA informed George that his son would no longer receive “dependent's allowance” benefits, which are available only to children under 23 who are attending an “approved educational institution.” According to a 1998 regulation, homeschooled students could not receive benefits after turning 18 since the VA did not recognize a homeschool as an “approved educational institution.”

As Mr. Theiss pointed out in his subsequent letter to the VA, John was still in his senior year of high school and working towards graduation in June 2000. George explained that the VA had extended the benefits for his oldest daughter when she turned 18 before high school graduation. The VA responded that due to the 1998 regulation, John's benefits would be denied anyway. “Had my son been in public school and his graduation date wasn't until the June after he turned 18, they [VA] would have continued paying benefits,” says George. “It was discrimination against homeschoolers.”

A longtime HSLDA member, Mr. Theiss spoke to our legal staff about his predicament. “I told them, ‘It's just a few hundred dollars. It's not a big deal, but it's the principle.’ And HSLDA very graciously agreed. They took up my cause.”

HSLDA first defended Mr. Theiss within the VA administrative system, and in 2004, the United States Court of Appeals for Veterans' Claims agreed with us that benefits should not have been denied to the Theiss family. The court held that the VA had improperly promulgated the 1998 regulation against homeschoolers. Dissatisfied with this decision, the VA took the case to the United States Court of Appeals for the Federal Circuit. However, the Department of Justice, which was representing the VA, later decided to drop this appeal.

Meanwhile, since the veterans' claims court had ruled against the 1998 regulation concerning homeschools, the regulation could no longer be legally enforced. In February 2006, after reconsidering the case, the Board of Veterans' Appeals restored all of George Theiss's benefits.

Should other homeschoolers have trouble retaining pension benefits for their children, the Theiss case will function as a valuable precedent in their favor. “This is the kind of case that wins for everyone,” explains HSLDA Litigation Counsel Jim Mason. “The precedent will positively affect policymaking and litigation for homeschoolers within other governmental agencies like the Social Security Administration, social services, or state or county adoption agencies.”

John Theiss, now 24, is a senior at Frontier School of the Bible in Lagrange, Wyoming. “I immediately emailed HSLDA to thank them when I learned of our victory,” says his father. “We're very thankful to the Lord and to HSLDA for being willing to stand up for principle.”

George and Christina Theiss (right) helped end discrimination against homeschoolers by the Department of Veterans Affairs.

In it for the long haul: Ongoing cases

The hard-earned victories of the Fitzgeralds, Bentleys, and Theisses add up to encouraging progress for homeschoolers. But there are many families still fighting for the right to homeschool free from government interference.

“Standing up for anything is difficult,” says Maryalice Newborn, a homeschooling mother of five who is involved in a religious freedom case in Pennsylvania. She reflects on the biblical examples of Daniel and Peter, and modern-day role models like Rosa Parks. “What they did at that time was unheard of-standing up against the law . . . But when the civil law violates God's law, there is ample evidence of God supporting those who stand up for His law.”

In addition to the Newborns, several other HSLDA member families are still awaiting court decisions crucial to their homeschool freedom. “These courageous families are making a difference for their own children and for future homeschoolers,” says HSLDA President Mike Smith. “They cannot do it alone. You can support them by praying for them and by staying informed about homeschool freedom issues through HSLDA's e-lerts, magazine, and website.”

Pennsylvania: Religious freedom under fire

Along with parental rights, religious freedom forms the foundation of the right to homeschool. Several Pennsylvania families are finding that it takes time and determination to challenge a home education statute that violates their religious convictions.

The trouble for these six families originates in Act 169, Pennsylvania's homeschool law.4 Act 169 requires homeschool families to annually submit documentation for their homeschool and report their progress to the district.

“Pennsylvania has the most stringent home education laws in the country,“ says Maryalice Newborn. For 11 years, her family prepared samples of schoolwork, a daily log of assignments, standardized test scores, and an evaluator's report—then submitted this paperwork to the school superintendent, who decided whether or not their homeschool program could continue the following year.

Maryalice and her husband, Mark, who live in the eastern suburbs of Pittsburgh, consider these requirements to be a burden on their religious freedom since they believe God, not the public school, has the authority over their children's education. “The paperwork has never been the issue,” explains Maryalice. “It's the principle of submitting our religious education for approval to the secular public school district.”

In 2002, the family notified the school that they could no longer comply with Act 169 because of their religious convictions, which they clearly described. The school district responded with a truancy charge. In August 2003, the Newborns submitted a second letter to the district, explaining again that they could not meet the terms of the law in good conscience.

The Newborns also claimed a religious exemption from Act 169 by means of Pennsylvania's recently enacted Religious Freedom Protection Act (RFPA). When the school denied the Newborns' exemption, maintaining that the RFPA does not apply to education laws, HSLDA filed suit on behalf of the family. In August 2004, despite the school district's attempt to get the case dismissed, the county court judge allowed it to proceed.

Michael Farris, Chairman and General Counsel for HSLDA, represented the Newborns in the Westmoreland County Court of Common Pleas in 2004. He states, “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.”

“We're not denying that education is important,” says Maryalice, whose oldest son, Josh, was a National Merit Scholar, graduated from high school at 15, and is now excelling as a junior at Saint Vincent College in Latrobe, Pennsylvania. “We're denying the school's authority to monitor and control our children.”

In January 2005, the Newborn case was combined with five other similar RFPA cases across Pennsylvania.

Thomas and Babette Hankin of Croydon, Pennsylvania, have been homeschooling for 12 years and have seven children. Like the Newborns, the Hankin family could not tolerate the school system “exercising authority over our children's education.” After the Hankins' school district contacted them in spring 2004 for not reporting their homeschool to the state, the family sent several letters to the district, explaining that they could not comply based on their religious beliefs. The district responded with a three-day deadline by which the family had to submit to the home education law or be charged with truancy.

HSLDA filed a complaint for the Hankins, using the RFPA as the basis for their religious exemption to the homeschooling law. “We've been through this before—stepping out in faith,” says Babette, referring to a season when her husband quit his job because it required too much time away from his family. “We've seen God bring us through it.“

All the RFPA cases are now consolidated in the Western District Court of Pennsylvania. In December 2005, this court ruled that Act 169 did not significantly burden the families' free exercise of religion. However, because the school districts filed a motion for summary judgment, HSLDA was allowed to respond to the judge's opinion; specifically, the judge invited us to point out why we believe his initial ruling was flawed.

“This is an unusual opportunity,” says Farris. “We are prayerfully optimistic that the judge may revise his opinion in a way that would give relief to Pennsylvania homeschoolers.”

In April 2006, HSLDA filed a memorandum in response to the defendants' motion for summary judgment. In the memorandum, Farris discussed the distinction between the historical understanding of religious liberty and the mere religious toleration evident in Pennsylvania's home education law. Farris writes, “Pennsylvania's homeschool law is utterly inconsistent with religious and parental liberty . . . the Constitution of the United States demands adherence to the principles of religious liberty. Mere toleration will not suffice.”5

Mason adds, “We believe that when the Pennsylvania legislature adopted the RFPA, it intended that parents with religious objections to the law should be exempt from those requirements.” Should the judge rule against these families a second time, HSLDA will appeal the decision to the Third Circuit Court of Appeals.

New York: Defending the right to homeschool a special needs child

In a case similar to the Fitzgeralds' in Missouri, a New York school district is attempting to force a homeschooled special needs child to submit to a public school evaluation. The child has already been privately evaluated and the family desires no public school special needs services. However, subsequent to the Durham6 family's refusal to let the school evaluate their son, the Livonia Area School District called for a due process hearing.

HSLDA moved to dismiss the case. At the April 2005 oral arguments on the motion to dismiss, the school district argued that the evaluation would place no burden on the family and would provide them with valuable information about their son's special needs. HSLDA Litigation Counsel Jim Mason maintained that the Durhams “know as a matter of religious principle that they would never willingly accept public special education services under any circumstances.”

Mason also stated that IDEA does not require homeschooling families to have a special needs child evaluated by the school if they refuse public services—an interpretation that is now supported by the U.S. Department of Justice and the Eighth Circuit Court of Appeals (Fitzgerald v. Camdenton R-III School District et al.). However, on May 12, 2005, the independent hearing officer ruled against the Durhams.

HSLDA has appealed this decision to the state review officer, and since summer 2005, the Durhams' case has been stuck in the state review office, awaiting a final decision. We have submitted for the office's review the Eighth Circuit Court of Appeals decision in Fitzgerald and the U.S. Department of Justice's brief in the same case.

Mason says, “We're hoping for the best, but should the state review officer ignore the Durhams' right to homeschool their child without interruption from the public school, HSLDA will appeal the decision to the federal district court in New York.”7

Fighting for freedom: The Newborn Family.

Standing together

As homeschoolers look back at the ground we have gained in the past 20 years, it can be easy to forget that the battle is still underway. True, the number of homeschooled children in America is soaring, and members of the media, educational establishment, and government are recognizing the effectiveness of learning at home. But homeschoolers still face some tough challenges. Not every law in America is homeschool-friendly, nor is every government official. The slightest loss of parental rights or religious freedom in any one case can spell bad precedent for similar situations around the country.

By joining Home School Legal Defense Association, you help safeguard your own right to homeschool as well as the rights of your fellow homeschoolers. We stand with you, keeping you informed of the legal and legislative status of homeschooling, providing resources and encouragement for every stage of your homeschool journey, and defending you in court if the need arises.

“In some respects, I'm not doing this for my children,” says Maryalice Newborn of her family's fight for the freedom to homeschool according to their religious beliefs. “I'm doing this for my grandchildren.”

We applaud your decision to homeschool your children. By standing up for your freedom and supporting others who do the same, you protect the freedom of future generations.

Endnotes

1 See Active Cases to read about another recent victory in a special needs case.

2 For full story, see the November/December 2005 Court Report.

3 Fitzgerald v. Camdenton R-III School District et al., No. 04-3102, at 6 (8th Cir. Mar. 1, 2006).

4 More information about Pennsylvania's homeschool law.

5 “Plaintiffs' Opposition to Defendants' Summary Judgment Motion,” Combs v. Homer-Center School District et al., April 2006.

6 Name changed to protect family's privacy.

7 Read about more top cases.