February 17, 2004

Victory! Indiana judge rules that homeschools are "secondary" schools—reinstates adoption subsidy

An Indiana judge reversed his earlier ruling and held that a disabled 18 year-old who is still being homeschooled is enrolled in a "secondary" school under Indiana law, making her eligible to continue receiving over $600 per month in adoption subsidies.

For many years, HSLDA members, Mark and Linda Richardson, received an adoption subsidy from St. Joseph County for their severely disabled adoptive daughter, Dawn. The Richardsons have homeschooled Dawn for many years. In March 2003, the Division of Family and Children notified the Richardsons that the subsidy would be discontinued when Dawn turned 18 in May.

Under Indiana law, the adoption subsidy could be continued past the eighteenth birthday if the court were to find that Dawn was "enrolled in a secondary school."

The Richardsons asked that the subsidy be continued because Dawn had not completed her secondary education. Due to her disabilities she had been held back in first and second grade when she was enrolled in a parochial school. Under Indiana law, homeschools are considered to be private schools.

Two county representatives told Linda Richardson that Dawn was ineligible for continuation of the subsidy because she was homeschooling. They told her that if the Richardsons wished to continue receiving the subsidy, they would have to enroll Dawn in public school.

On April 15, the Court ordered the subsidy discontinued without notice or hearing, finding that Dawn was not eligible for the County subsidy due to her attaining age 18. HSLDA petitioned the Court to continue the subsidy, arguing that it would be an error to interpret "enrollment in a secondary school" to mean "enrollment in a public secondary school."

At a hearing on June 16, 2003, HSLDA litigation counsel, Jim Mason, argued that Dawn was enrolled in a secondary school as a matter of law and was therefore eligible for the subsidy.

"We represented the Richardsons in this case because the legal status of home education was being challenged in court," said Mason. "Cases like this could have adverse consequences for all homeschoolers," he continued.

The judge appeared to agree that Dawn's homeschool qualified as a secondary school, but expressed a desire to be sure that Dawn was actually making progress toward self-sufficiency. To this end, he asked that evidence be submitted to show that Dawn's continued home education would benefit her.

A local special education teacher evaluated the Richardson's homeschool and submitted an affidavit stating that she was receiving an excellent education and was making progress toward being able to work outside the home.

On receipt of the teacher's evaluation, the judge continued the subsidy for six months and scheduled a status hearing in December, to reevaluate whether Dawn continued to make progress.

To prepare for the December hearing, the Richardson's prepared an Individualized Education Plan, with the professional assistance of the local high school's director of special education, and focused Dawn's education more on life skills and less on academics.

At the December hearing, the judge completely surprised the family and HSLDA's local counsel by stating that he didn't think home education counted as a secondary school. He again cut off the subsidy.

HSLDA filed a motion to correct the error, on the basis that the judge had made an error of law by ruling that homeschooling doesn't amount to enrollment in a secondary school.

At a hearing on February 8, 2004, HSLDA attorney Jim Mason, again explained that under Indiana law, Dawn was enrolled in a secondary school and was therefore eligible for the subsidy. The county's attorney conceded that homeschooling qualified as secondary school, but argued that continuing the subsidy would "set a bad precedent" for reasons she could not explain to the judge's satisfaction.

The judge acknowledged that his previous ruling had been in error and reinstated all benefits.