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Why the Virginia Supreme Court Needs to Protect Homeschoolers

by Peter Kamakawiwoole • May 29, 2019

What happens when local officials decide not to follow the law—or decide to make their own?

The Sosebee family in Franklin County, Virginia, is finding out firsthand. For more than a year, the Sosebees have been trying to overturn a local school board policy that requires families to submit more information than is required by statute—or face the consequences.

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Home School Legal Defense Association has been working with the family, but our efforts to challenge the policy were thwarted when a lower court ruled in favor of the school board. That is why we are appealing to the Supreme Court of Virginia.

Bad Precedent

We feel the case could have widespread repercussions.

In the last 40 years, homeschooling has gone from being unrecognized to legal in every state, thanks in large part to the dedication of thousands of homeschooling families who persuaded their legislators and governors to pass state homeschool statutes.

These statutes don’t create the right to homeschool—that is a fundamental right recognized and protected by the Constitution—but they do serve as important bulwarks for families, protecting them from harassment and prosecution from state employees, county agencies, and local school boards.

The Sosebees’ story begins almost two years ago, when they filed a notice of intent to homeschool. Virginia, like many states, has a statute that requires parents to submit a written notice of intent to their local superintendent. The statute lists the information that must be included in the notice, as well as the deadline for submitting this notice.

The Sosebees’ notice included all of the information required by the statute, so they were surprised when the superintendent’s office told them they also had to submit birth certificates and proof of residency.

These are not requirements in the statute. Instead, the school committee had adopted a homeschool policy in the summer of 2017, which required these proofs.

Adding to the Law

The Sosebees’ notice did include their child’s age and home address, but this wasn’t enough for the district. Even though the superintendent knew how old their child was and where he lived, if the Sosebees did not submit a birth certificate and proof of residence, school officials would prosecute them for failing to comply with compulsory attendance requirements.

The Sosebees contacted HSLDA for assistance. Senior Counsel Scott Woodruff persuaded the school board to withdraw these demands, because the Sosebees filed their notice before the policy was changed.

But this was only a temporary solution: the district still insisted the Sosebees would have to submit proof of residence and birth certificates before the 2018-2019 school year, and all subsequent school years, or be taken to court.

To prevent this from happening, HSLDA challenged the school board’s policy. We argued that Virginia’s General Assembly had created a statute which listed the information a notice of intent has to include.

That list did not include birth certificates or proofs of residence, and while the General Assembly could amend its own statutes to add new requirements, local school boards cannot do so without usurping the legislature’s role. And local school boards certainly have no authority to threaten to prosecute families who obey the law.

Undermining Government

Unfortunately, the school board convinced a Circuit Court judge in December that there was nothing wrong with local school committees adopting their own homeschool policies. The judge ruled that the General Assembly has granted school committees the authority to adopt their own policies, based on a general statute that is designed for public school policies (like cafeteria meals and disciplinary measures), not homeschooling policies.

Because of the way Virginia’s courts are set up, that decision may be appealed only the state Supreme Court. And the Supreme Court of Virginia doesn’t have to take the case if it doesn’t want to: it has to be persuaded to take it.

It is very important that the Supreme Court of Virginia take this case. If local school boards are free to impose their own requirements on parents who wish to homeschool, the result will be confusion and chaos in school districts across the state.

Today, the homeschool “requirements” in Franklin County differ from those in neighboring counties, which follow the homeschool statute. Tomorrow, each of those neighboring counties could impose its own additional—and even different—requirements on homeschools.

Granting Unwritten Power

The impact on families outside Virginia could also be profound. Many states have homeschooling statutes like Virginia’s, which list the requirements for notices of intent. They provide uniformity and peace of mind: families that move from one county to another know exactly what’s required of them, and also know that if they follow the law they are safe from criminal prosecution.

If school boards in Virginia have an unwritten power to change their state’s homeschooling requirements, how many school boards in other states have that same unwritten power?

That’s why HSLDA has asked the Supreme Court of Virginia to overturn this dangerous precedent. We are waiting to see if the school board files an opposition to the Sosebees’ petition and whether the Supreme Court of Virginia agrees to take the case.

None of this would be possible without the support of HSLDA members and friends of homeschooling. Because of your prayers, financial support, and heart for homeschool freedom, we are able to come alongside families like the Sosebees, who are willing to stand firm so that other families can teach their children in peace.

Please join us in praying that the Supreme Court of Virginia will hear the Sosebees’ appeal. And if you’d like to partner with us in defending the Sosebee family and others like them, you can make a tax-deductible donation to the Homeschool Freedom Fund.


Peter Kamakawiwoole

Staff Attorney

Peter has been an HSLDA staff attorney since 2011, assisting member families in Connecticut, Nebraska, Rhode Island, Utah, Vermont, and his home state of Hawaii. Read more.


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