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May 2, 2005

Victory – Department of Justice Drops Appeal

In a surprise move that thrilled HSLDA, the United States Department of Justice decided to drop its appeal of a decision by the Veterans' Court of Appeals, upholding a ruling favorable to homeschoolers.

HSLDA Attorney Jim Mason was delighted. "We've been fighting this battle for over 5 years over an obvious definition, and the decision of the Department of Justice to drop this case just confirms the position HSLDA has argued for the past 5 years."

The case began in October of 1999 when the Department of Veterans Affairs denied benefits to homeschooling veteran George R. Theiss on the grounds that homeschooling does not qualify as an "educational institution."

According to the Veterans Administration rules, when an eligible veteran has children, he or she may receive additional benefits until that child turns 22, if the child remains in fulltime enrollment in an educational institution.

In May of 1998, however, the General Counsel for the VA reasoned that children who are being homeschooled cannot be considered to attend an educational institution because the word "institution" suggests an ongoing organization that exists to benefit numerous children, not just one individual. Relying upon this opinion, the VA instituted a regulation that specifically excluded homeschooled students from benefit eligibility after they turned 18. Because of this discriminatory regulation, the Department of Veterans Affairs cut Mr. Theiss's benefits in 1999.

HSLDA helped Mr. Theiss appeal the decision to the Board of Veterans' Affairs, but his benefits were again denied because of the general counsel's opinion.

The next step took the challenge to the United States Court of Appeals for Veterans' Claims on May 25, 2001. Two years later, on September 8, 2003, Attorney Mason argued in that court on behalf of Mr. Theiss.

The court's subsequent ruling on July 27, 2004 reversed the decision of the Board of Veterans' Affairs, holding that the rule prohibiting homeschoolers from continuing to receive benefits after the child turned 18 had not been properly promulgated. In addition, the court not only criticized the general counsel for its "narrow" definition of educational institution but also its failure to present a "rational, comprehensive explanation" for not considering homeschooling to be an "educational institution." In fact, the majority opinion of the Court of Appeals for Veterans' Claims suggested that the statutory phrase, "educational institution," would include homeschoolers who were in compliance with their state homeschooling laws.

The Department of Veterans' Affairs was not satisfied with the reversal, however. After the court's July ruling, the Department asked the full Court of Appeals for Veterans' Claims to review the holding, which the Court declined to do. One of the judges, however, wrote an opinion expressing his view that the whole court should review the matter, not to reverse the opinion, but to review the opinion to decide that homeschooling does indeed qualify as an "educational institution."

The Department of Veterans' Affairs filed its Notice of Appeal to the United States Court of Appeals for the Federal Circuit on February 4, 2005. After the Attorney General's office reviewed the record and the opinion of the United States Court of Appeals for Veterans' Claims, however, the Department of Justice decided not to pursue the appeal.

Because the United States Court of Appeals for Veterans' Claims ruled on the technical grounds that the regulation cutting off Mr. Theiss's benefits was improperly promulgated, the regulation itself (and its too-narrow definition) no longer has any legal effect. The homeschooling issue has been remanded to the Board of Veterans' Affairs for a review of whether Mr. Theiss's benefits should be reinstated in the absence of the improperly promulgated regulation.

"This is a good win for homeschoolers across the board, not just for homeschooling veterans" Attorney Mason explained. "The precedent will positively affect policy-making and litigation for homeschoolers within other governmental agencies like Social Services, or state or county adoption agencies."

The VA will likely adopt the approach taken by the Social Security Administration, which also requires that students must be enrolled in an educational institution to continue receiving benefits after they reach the age of 18. The SSA has already adopted rules and policies that recognize homeschooling as an educational institution, simply requiring evidence that the family is homeschooling in accordance with state law.

 Other Resources

In the Appeal of George R. Theiss

Decision of Court of Appeals

Final Decision of Court of Appeals