The Home School Court Report
Vol. XXIII
No. 1
Cover
January/February
2007

In This Issue

SPECIALFEATURES
REGULARCOLUMNS
ANDTHEREST

Cover Story
2006 Federal & Legislative
Next Page
by Christopher Klicka, James Mason and Darren Jones
- disclaimer -
Roundup

Now that 2006 has drawn to a dusty close, homeschoolers can sit down for a spell, kick off their boots, and gaze back at many victories won over the past year—victories made possible only by the efforts of many homeschoolers uniting to back up each family’s rights.

This past year, your membership with Home School Legal Defense Association strengthened the voice of homeschoolers before state and federal legislatures and the courts. Your prompt action in contacting state and federal representatives resulted in the passage of good homeschool laws and the defeat of freedom-squelching legislation. Your membership fees enabled HSLDA’s legal staff to cover fellow homeschoolers’ backs through phone calls, letters, legal briefs, and live representation in court.

Here’s a quick review of how HSLDA works.

Our Legal Department is made up of legal assistants, contact attorneys, and litigation attorneys. HSLDA’s contact attorneys track legislation that impacts homeschoolers and alert our members to both favorable and unfavorable bills during each state’s legislative session. They also assist our members in understanding their state homeschool law, and work with school districts and social workers to protect our members from court proceedings and preserve their right to homeschool.

Despite the best efforts of our contact attorneys, litigation cannot always be avoided. That’s where HSLDA's litigation attorneys come in to defend our member families in court and in administrative procedures. HSLDA’s Litigation Department also files a limited number of cases each year to strengthen case law that favors homeschooling and parental rights.

In 2006, HSLDA’s Litigation Department worked on over 80 cases on behalf of members all across the U.S. And our contact attorneys handled some 22,190 contacts and tracked approximately 500 bills. Here is a summary of some of the legislation and cases HSLDA handled this past year.

Corralling Social Workers

One problem that homeschoolers across the nation face is social workers who have forgotten or never knew what the United States Constitution says. For the last three years, HSLDA has been working with our members and state homeschool organizations to pass child welfare reform amendments. Already passed in 16 states (Arizona, California, Idaho, Illinois, Indiana, Iowa, Louisiana, Michigan, Nevada, North Dakota, Ohio, Oklahoma, Texas, Virginia, Washington, and Wyoming), these amendments restrain overly aggressive social workers from harassing innocent citizens by attempting to enter their homes and interview their children solely on the basis of an anonymous tip. (Because their unique educational choice is often misunderstood, homeschoolers sometimes find themselves the target of this sort of unfounded social services investigation.) In 2006, we were able to add child welfare reform amendments in three more states: Alaska, New Hampshire, and Utah.

Why are these amendments so important?

They require all social workers to be trained in their duty to protect the constitutional and statutory rights of the families they investigate. This will include training in the Fourth Amendment, which requires government officials (including social workers) to show probable cause that a crime is being committed and obtain a warrant from a judge before they may enter a home or interview children without the parents’ consent. The amendments also require social workers to inform parents of the allegations against them “at the initial time of contact.”

The passage of these child welfare reform amendments will correct the common social worker practice of insisting upon entering a family’s home or interviewing their children without first revealing the allegations to the accused family or producing evidence substantiating the family’s alleged misconduct.

Ridin’ Hard on Maverick Social Workers

In 2006, HSLDA filed cases in three states on behalf of member families whose Fourth Amendment rights had been violated by social workers.

In New Mexico, we gained a settlement for a dad who was forced to watch helplessly while a policeman drove off with his children, taking them to an unknown location for unwanted interviews. HSLDA filed a lawsuit against the officer and the social workers who had sent him to collect the children. The case settled in August before trial.

www.stockphoto.com
...
IT IS VITAL
THAT HOMESCHOOLERS
REMAIN INDEPENDENT & FREE
FROM GOVERNMENT CONTROL.
...

HSLDA filed another lawsuit on behalf of an Arizona member family who had been forced to allow two social workers and four sheriff’s deputies into their home under the threat of losing their children. This case is ongoing.

In October 2006, a Tennessee member mom called HSLDA from a social worker’s office as she was waiting for her children to be interviewed, after an unsubstantiated anonymous tip brought her under suspicion for abuse and neglect. The family had faced other false anonymous tips in the past, so the mother had initially refused to grant the social worker access to her children. The social worker then went to court to obtain a court order forcing the interview, which the judge granted even though the social worker did not have probable cause to believe that there was any neglect. HSLDA Litigation Attorney James Mason spoke to the social worker on behalf of the mother and sent an attorney to the social worker’s office to assist this mom in fighting for her rights. The court has not yet ruled on our motion to quash the court order.

Border wars: Who Owns the Children?

For over 20 years, HSLDA has been fighting the attempts of teachers’ unions to expand the compulsory attendance age (the ages during which children are required by law to attend school).

The broader the compulsory attendance age, the longer the state has jurisdiction over your children’s education. If you live in a state with reporting or testing requirements for homeschoolers, expansion of the compulsory attendance age would mean that you must follow those requirements for a longer period of time—regardless of your student’s individual abilities.

In 2006, HSLDA helped homeschoolers in five states defeat bills that would have expanded the compulsory attendance age. Two measures—one in Maryland and one in West Virginia—would have increased the state compulsory attendance age from 16 to 18, but were both brought down. In Minnesota, a proposal that would have lowered the age of attendance from 7 to 5 was killed, as was a New York plan that would have lowered the minimum age to 5. HSLDA and our members also helped to knock out a North Carolina bill that would have extended the compulsory attendance age at both ends.

Still, the war isn’t over. In spite of our best efforts and those of the South Dakota Christian Home Educators, the South Dakota legislature passed a bill lowering the compulsory attendance age from 7 to 5. HSLDA continues to monitor that situation and will inform you of any action you can take to defeat this expansion of government control.

Running the Paperwork out of Town

Homeschoolers in New Hampshire and Vermont used to have a wagonload of paperwork to turn in each school year. But now paperwork has been reduced and parents have more time to spend teaching their children, thanks to the hard work of homeschooling families, state homeschool leaders, and HSLDA.

In the Granite State, state homeschool leaders and HSLDA Staff Attorney Scott Woodruff lobbied hard for legislation to reduce the paperwork burden on homeschoolers and increase their freedom. They were pleased to see the measure pass.

In the Green Mountain State, similar legislation was passed through the efforts of Retta Dunlap, legislative coordinator for Christian Home Educators of Vermont, other state homeschool leaders, and HSLDA of Counsel Scott Somerville.

Spurring on Freedom in Virginia

After a two-year battle in Virginia, HSLDA, the Home Educators Association of Virginia (HEAV), and homeschooling families across the Old Dominion finally obtained a much-needed victory. House Bill 1340 removed the requirement that a parent possess a bachelor’s degree in order to homeschool under Homeschool Option 1. The new requirement allows any parent with a high school diploma to homeschool under this option. Two years ago, this same proposal was passed by both the House and Senate but vetoed by Governor Mark Warner. In 2006, the measure was again passed by the House and Senate and was signed into law by the newly elected governor, Tim Kaine.

Virginians also gained more freedom with the passage of H.B. 1483, which effectively removes the authority of superintendents to require homeschoolers operating under Homeschool Option 4 to teach the Standards of Learning (objective requirements set by the state). H.B. 1483 also gives families homeschooling under Assessment Option 1 the freedom to use any nationally norm-referenced standardized achievement test instead of limiting them to tests approved for use by the public schools.

H.B. 1588 was another significant victory achieved by Virginia homeschoolers, HEAV, and HSLDA. This bill requires homeschoolers to be allowed to take the PSAT in public schools. Previously, the law required public schools to notify homeschoolers of PSAT test dates, but schools did not have to actually admit homeschoolers to take these tests.

Staking a Claim on Traditional Marriage

In 2006, HSLDA tracked legislation and encouraged homeschoolers to call their legislators in support of marriage amendments in eight states. In five of those states—Idaho, Indiana, North Carolina, Virginia, and Wisconsin—amendments passed that clearly defined marriage as being between one man and one woman. Amendments failed to pass in Illinois, Maryland, and Minnesota.

Virtual Charter Schools: A tricky Ride

Homeschoolers fought for years to break away from oppressive state requirements that homeschooling parents be certified teachers, use a secular curriculum approved by the state, and permit home visits by government officials.

Now, however, public schools are subverting the homeschool movement from within by offering free government homeschool programs called “virtual charter schools.” These charter schools operate from the home, but require parents to accept the supervision of a certified teacher, use secular curriculum (or have their curriculum approved by the state), and submit to home visits. By inviting government oversight into the home, these programs could eventually result in increased regulation of actual homeschools.

During 2006, HSLDA teamed up with Homeschoolers of Maine (HOME) to oppose and successfully defeat virtual charter school legislation in Maine. However, South Dakota and Mississippi passed bills opening the door for virtual charter schools. New Mexico also implemented a virtual charter school policy, and is even now scrambling to sign up private homeschoolers. Despite these setbacks and the increased popularity of the virtual charter school option, HSLDA urges homeschoolers not to register for these “free government homeschool programs.” It is vital that homeschoolers remain independent and free from government control.

Breaking in Pennsylvania’s RFPA

The year 2006 proved to be a bumpy ride for six families in Pennsylvania who are fighting for their religious freedom and now await the outcome of an appeal to the United States Court of Appeals for the Third Circuit.

Pennsylvania’s homeschooling law, Act 169, is one of the most stringent laws in the nation, requiring parents to submit their teaching materials for approval by the local school district. For at least six families in Pennsylvania, this burden has become unbearable. They firmly believe that the law is restricting their God-given right to superintend the education and upbringing of their children.

In 2004, each of these families—the Newborns, Hankins, Previshes, Combses, Nelsons, and Webers—filed a statement with their school district under Pennsylvania’s newly enacted Religious Freedom Protection Act (RFPA) declaring that the home education law substantially burdened their free exercise of religion. These statements were rejected by their school districts, and the rejections were followed immediately with threats of truancy prosecution.

To counter the school districts and protect our members, HSLDA filed six lawsuits that merged into one against the school districts. In March 2006, the Western District Court of Pennsylvania granted summary judgment to the school districts, ruling against these six families. HSLDA immediately appealed the decision to the Third Circuit, in hopes that the Third Circuit will take a more serious view of Pennsylvania’s Religious Freedom Protection Act and ensure the right of these parents to have sole authority over their children's education.

Reining in the IDEA

In March of 2006, after three years in court, Missouri HSLDA members Ron and Joann Fitzgerald fi’s education.

Back in November 2002, Mr. and Mrs. Fitzgerald had removed their son from the public school system in frustration after repeated attempts to have his special needs addressed. The Fitzgeralds had their son privately evaluated and began to teach him at home.

Only then did the school district make an attempt to evaluate the Fitzgeralds’ son. When Mr. and Mrs. Fitzgerald refused the evaluation because they no longer desired public school services, the school district initiated proceedings against the family that took them from an administrative level to federal court, and finally to the United States Court of Appeals for the Eighth Circuit. The U.S. Department of Justice filed an amicus brief with the Eighth Circuit supporting HSLDA’s position that the federal Individuals with Disabilities in Education Act (IDEA) did not require parents to submit their children to public school evaluations. In the Eighth Circuit, a panel of three judges ruled unanimously that school districts may not force homeschooled children to submit to special needs evaluations against their parents’ wishes.

The United States Court of Appeals for the Eighth Circuit, which includes Missouri, held that the IDEA does not give public schools jurisdiction over homeschooled children who have special needs. “Where a home-schooled child’s parents refuse consent [for an evaluation], privately educate the child, and expressly waive all benefits under the IDEA, an evaluation would have no purpose. . . . [A] district may not force an evaluation under the circumstances in this case.”

While the Fitzgerald case was pending, at least four other HSLDA member families benefited from the Fitzgeralds’ fight to deny consent to an IDEA evaluation.

www.stockphoto.com
...
CALLS & COMMENTS
POURED INTO
THE DEPARTMENT
OF EDUCATION,
...

Due to general confusion over the IDEA, school districts across the country have taken its provisions to mean that they will be refused federal funding if they do not evaluate all special needs children in their district, including homeschoolers. This has led to many situations such as the Fitzgeralds’. Though the 2004 IDEA had introduced some promising regulatory language for homeschooling parents of special needs children, it did not spell out the right of parents to refuse consent to a special needs evaluation of their children. Similarly, the 2006 proposed IDEA regulations offered some language that was favorable to homeschoolers; but while a parent’s right to refuse consent was explicit in the comments of the proposed regulations, the regulations themselves were still vague.

Later in 2006, Caleb Kershner, then legislative liaison for the National Center for Home Education, worked closely with HSLDA Litigation Attorney James Mason to introduce language into the regulations that was more homeschool-friendly. HSLDA strongly encouraged comments from our members about the proposed regulations. Calls and comments poured in to the Department of Education. These calls, along with the Eighth Circuit decision in the Fitzgerald case, served to embolden the Department of Education to promulgate a completely new “homeschooling section” of the IDEA regulations. This new section not only clearly explains a parent’s right to refuse consent to an IDEA evaluation, but also explicitly prohibits school districts from dragging families through due process procedures when the parents have absolutely no intention of accepting government services for their special needs children.

The new IDEA regulations went into effect on October 16, 2006. Now parents across America may refuse special needs evaluations for their children without fear of their decision being overridden.

Ending Discrimination out on the Range

In 2006, HSLDA worked on over 15 cases on behalf of families whose Social Security disability or survivor benefits had been withdrawn because they homeschooled.

Local Social Security Administration (SSA) offices, as a matter of practice, were denying these benefits to our members after their homeschooled children turned 18, stating that because the children were not “enrolled in school,” they were no longer eligible for the benefits. But after HSLDA's victory in P Family v. Social Security Administration in 2005, the SSA changed its language to include students enrolled in homeschools.

However, many local SSA offices are still not acting in accordance with the national regulations. While some of this past year’s cases are still in progress, many of them have resulted in a reinstatement of our members’ benefits.

Notably, HSLDA’s Litigation Department also fought for and won the reinstatement of an adoption subsidy for a special needs child.

Mary Richmond (name changed to protect family’s privacy) was adopted when she was very young. Because of her special needs, the state granted Mary’s new family an adoption subsidy to help with her care and education.

Mary’s parents enrolled her in public school from kindergarten through 3rd grade before deciding that her special needs would be better met through homeschooling. Even with some learning disabilities, Mary flourished in her new homeschool program and kept pace with her public school class each year.

During Mary’s junior year of high school, the state social services office contacted the Richmonds to inform them that Mary’s adoption subsidy would cease six months after her 18th birthday because Mary was being homeschooled. Upon further research, the Richmonds discovered that if Mary were in public school, she would receive the benefits until she graduated.

HSLDA filed a notice of appeal on the family’s behalf and prepared to fight the discriminatory policy. Because of HSLDA’s intervention, however, the Richmonds received a letter from social services one week before the appeal hearing was scheduled, informing them that the social services office would be waiving its policy. Mary’s adoption subsidy will continue until she graduates in June 2007.

The Trail Ahead

Overall, 2006 was a successful year for homeschooling, legislatively and legally. Now that the 2007 legislative season has begun, HSLDA will continue to keep you informed with up-to-the-moment information about any bills affecting homeschooling. And we’ll continue to fight for respect for the right to homeschool wherever needed in the courts.

Homeschooling freedom still faces many challenges. In the legislatures, anti-homeschooling forces such as teachers’ unions and child rights organizations are cooking up plans to turn back the clock, thereby curtailing the right of parents to choose the best form of education for their children. In the courts, even with the victories of 2006, parents’ constitutional freedoms, including their religious freedom and Fourth Amendment rights, will be at stake for years to come.

Without you, our member families, HSLDA would not exist. Thank you for joining with us in preserving and expanding freedom for this and future generations.


About the authors

Christopher Klicka is Senior Counsel, James Mason is Deputy General Counsel, and Darren Jones is Staff Attorney at HSLDA.