Pennsylvania Law Declared Unconstitutional
Jeffery Case Won
On August 24, 1988, Judge Edwin M. Kosik of the U.S. District Court announced his long-awaited decision in Jeffery, et al. v. O'Donnell, et al. (No. 86-CV-1560, M.D. Pennsylvania), and ruled that “the tutorial provision of the Pennsylvania Compulsory Attendance Law, 24 P.S. 13-1327 . . . is unconstitutionally vague.&rdqu; He enjoined the defendant superintendents from further prosecution of any of the home schooling families who were plaintiffs in the suit, and also stated that “others are permitted a legitimate defense to criminal prosecution.” In practical terms, this means that Pennsylvania’s law is currently unenforceable against all home schoolers in the state.
In making his decision, Judge Kosik ruled solely on the vagueness issue, and rejected in a single sentence the families’ claims that the statute also violated their rights to free exercise of religion and procedural due process. Through depositions of the defendant superintendents and a key official at the state Department of Education, HSLDA attorneys were able to establish that a wide range of home schooling policies was in effect in Pennsylvania, and that no clear statewide standard controlled what individual districts or superintendents might require. Judge Kosik agreed in his opinion that,
. . . Disparity abounds. What can be satisfactory in one district could be totally unsatisfactory in another. The ultimate conclusion one must reach concerning tutorial education in Pennsylvania is that, . . . the law providing for such education is unconstitutionally vague. . . A person of ordinary intelligence cannot reasonably steer between the lawful and unlawful to avoid criminal prosecution. There exists no standard for determining who is a qualified tutor or what is a satisfactory curriculum in any district. Superintendents of school districts, while exercising a legitimate and constitutional function of managing their districts according to the unique character of each district, nevertheless make their decisions on an ad hoc basis which can result in the dangers of arbitrary and discriminatory application. While some circumstances allow the luxury of awaiting judicial clarifications, the threat to sensitive First Amendment freedoms mandates judicial intrusion in the form of declaring the particular provisions of the law unconstitutional for vagueness.
The judge also ruled that the effective date of his decision would be stayed until December 3, 1988, “or until the legislature enacts new legislation or the Secretary of Education promulgates new regulations, whichever occurs first.” It is not completely clear what is meant by this delayed effective date. HSLDA attorneys interpret this to mean that the judge did not want to rule the private tutorial provision completely void at the present time, since that is the only part of the law under which home schooling is permitted. As the judge stated, “Because there is no alternative statutory provision for tutorial education in Pennsylvania, and since the legislative intent is to permit tutorial education, including such instruction in a home setting, we do not mean for this ruling to end tutorial education under the statute.” If that provision were stricken, it could be argued that home schooling is simply not permitted under Pennsylvania law. Therefore, Judge Kosik wanted to leave the option of home schooling open until a new law or regulations could be passed.
The interpretation of this decision by school districts throughout the state has not been completely uniform. The Pennsylvania School Boards Association (PSBA) has called the decision “a victory for public school education” because of the court’s rejection of the families’ other constitutional claims and its concession that the state has a legitimate interest in the education of children. As a result, some HSLDA families have still encountered problems with their districts, who feel the decision is not binding on them. Despite the PSBA’s opinion, which has apparently been widely circulated to school districts in the state, HSLDA has succeeded in resolving virtually all disputes already by explaining the applicability of this decision to all home schoolers and all school districts. In addition, HSLDA is hopeful that the decision will resolve the cases of several families which have been involved in court proceedings from last school year.
Home School Bill Pending Before Legislature
A home schooling law is currently being considered by the Pennsylvania legislature. HB 2501 is backed by the Parent Educators of Pennsylvania, and appears to have a good chance of passage before the end of this year’s legislative session. The bill, though not perfect, would at least give some definition to the legal status of home schooling.
Home schoolers in the state have been active in tracking the progress of the bill, and fighting off some potentially disastrous changes and amendments. Mike Farris traveled to Harrisburg on October 13, 1988, to help negotiate some changes in the bill’s requirements for end-of-year evaluations. The bill requires parents to file an annual affidavit including a basic outline of their program, and information on the students involved. Parents must keep a log and portfolio of their children’s work, and submit annually either standardized test results or a written evaluation of the students’ work.
The lack of clarity regarding the Jeffery decision’s effective date, and the anticipated reaction of superintendents if no new law is in place by the beginning of the year, make it crucial that new legislation be passed before the close of this session of the state legislature. Please be in prayer that this will be possible, so that this victory can be preserved for all home schoolers in Pennsylvania.