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January 14, 2013

On the Case:

Homeschooling Mother Vindicated in Court

The Anonymous Tip—Can Children with Learning Disabilities Homeschool?

Staff Attorney Mike Donnelly defends homeschool freedom in Colorado. He and his wife homeschool. Read more >>

When a social services investigator arrived at her house in the fall of 2011, homeschooling mother Josslyn Kittinger (names changed to protect privacy) called Home School Legal Defense Association and spoke with attorney Mike Donnelly. After she politely asked the social worker to leave, as recommended by attorney Donnelly, the social worker complied with her request.

Nevertheless, the social worker did not close the investigation against the family. As it turns out, some of the Kittinger children have learning disabilities, and the social worker—as well as the person who called in the anonymous tip—believed the children’s special needs would be better met in public school. During the course of her involvement with the state, Ms. Kittinger’s neighbors, the social worker, and prosecutors would question her right to homeschool over the issue of her children’s learning disabilities.

According to attorney Donnelly, “Many families homeschool their children who have learning disabilities because they find that the children’s needs are better met in a one-on-one homeschool setting—research shows that this is true. It is intolerable that someone would question a family’s right to homeschool simply because their children have a learning disability.”

The Court Order to Seize the Children

Several days later, based on a neighbor’s comment and a drive past the Kittinger’s house, the social worker erroneously concluded that the family intended to flee the state. The social worker sought and obtained a verbal order from the local court to take the Kittinger children into state custody. Fortunately, the children were never taken as Ms. Kittinger was willing to demonstrate that she was homeschooling legally and had no intention of leaving the state. Nevertheless, because the social worker had contacted the court and received a court order, a prosecutor proceeded to open a case against Ms. Kittinger for educational neglect.

The Court Case

HSLDA’s local counsel James Rouse defended Ms. Kittinger at her initial court hearing. At Mr. Rouse’s urging, the court nullified the verbal order given to the social worker to take the Kittinger children into custody. In Colorado, homeschoolers have two options to legally homeschool. They can either file an annual notification directly with a school district, or they can enroll in an independent school. Mr. Rouse demonstrated that Ms. Kittinger was homeschooling legally in Colorado with an independent school.

Despite this evidence, the prosecutor refused to dismiss the educational neglect case. A total of three hearings were held during the fall of 2011 and a five-day trial was scheduled for December and March. For the December trial date, attorney Donnelly represented Ms. Kittinger.


During the first day of trial, HSLDA defended Ms. Kittinger’s right to homeschool, calling Steven Duvall, Ph.D., as an expert witness to demonstrate that the Kittinger children were receiving an adequate education under the law. The trial day in December was only the first of the scheduled five-day trial. In March, attorney Donnelly returned to Colorado to represent the Kittinger family again.

This time, however, after multiple visits with the family, the social worker agreed that no educational neglect was transpiring and convinced the prosecutor that the case was not worth pursuing just hours before the second day of the trial started. The case was settled, and Ms. Kittinger was able to continue homeschooling her children.

According to attorney Donnelly, the Kittinger case is significant.

“This victory is important for all homeschooling parents, because it strengthens the idea that all children have the right to be homeschooled and the need for HSLDA,” he said. “How would this single mother have defended herself? The resources needed for this were far beyond her own means, and most court-appointed defenders simply do not have the experience or sympathy to aggressively defend a mom homeschooling in this situation. I consider it a privilege to have been allowed to defend this mom who was doing what I believe was indeed best for her children!”

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HSLDA Social Services Contact Policy

We desire to advise our members in every contact with a social worker and/or police officer in investigations resulting from allegations of abuse or neglect. If homeschooling is an issue, we will represent our member families until the issue is resolved. On Fourth Amendment unreasonable search and seizure issues, HSLDA will advise our members whenever the privacy of their home is violated by forced or coerced entry for the purpose of an unsubstantiated investigation. HSLDA membership benefits do not extend to court actions resulting from non-homeschooling matters. However, in circumstances where there is a clear violation of the Fourth Amendment, HSLDA may, as we have done in the past, choose to take the case in an effort to establish legal precedent.