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March 4, 2013

On the Case:

Preparing for the Nebraska Supreme Court

HSLDA Founder and Chairman Michael P. Farris is the homeschooling father of 10 children.

by Mike Farris
HSLDA Founder and Chairman

View the court’s online summary (including audio of Mike Farris’ oral argument) >>

Look at the Thacker case on the surface, and it’s fair to ask: Why did the Supreme Court of Nebraska decide to even take this case?

It only concerns a dispute of six weeks of supposed non-attendance of school by the Thackers’ children. The trial court found the parents guilty of truancy but imposed a fine of zero.

We appealed the Thackers’ criminal convictions, and an intermediate court agreed with our arguments and reversed their convictions.

The prosecutor appealed that decision to the Nebraska Court of Appeals. However, the Supreme Court of Nebraska reached down and pulled the case up for its own direct review. This happens sometimes, which signals that the high court views a particular case as containing important principles.

What’s at Stake

The question that I must wrestle with as I prepare for oral argument is: What is the big principle in this case that justified this move?

The prosecutor is trying to establish a legal rule that children are presumptively enrolled in the public schools of Nebraska unless they are excused by the government to attend some alternative school.

We contend that the public schools have no prior claim on children. The duty of parents is to see that their children are educated.

In short, the central issue in this case is who is presumptively in control of a child’s education—parents or the government?


An appellate argument requires me to engage in three basic areas of preparation. First, I have to master the facts of the case. Second, I have to master the relevant law. And, third, I have to plan the basic points I intend to convey which need to blend big picture arguments and more technical legal points.

To do this, I must read, analyze, and practice. I need lots of people peppering me with questions that the court might ask.

Even though I have argued dozens of times before other appellate courts (including the Nebraska Supreme Court), there is still no substitute for lots of practice.

The thing that has changed over the 35 years is that I am now the age of most of the judges. It is really important to try to think like the judges and to try to guide them to the really big points that help defend the really important principles.

In this case, the principle under consideration cannot be more important. Should parents or government be presumed to be in control of a child’s education?

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