My family’s homeschooling journey is almost over.
Abigail Joy came to us 17 years ago, about a year after we moved to Virginia so I could join this merry band of co-laborers we call HSLDA.1
Born at home, surrounded by five brothers and one sister—and a well-qualified midwife, thanks be to God— Abigail came into the world certain she was in charge. When Abby was 8, Debbie joked about how nice it was finally to have a child who could babysit the others.
Now, Abigail’s a young woman: vivacious, athletic, well-spoken, tenderhearted, strongwilled, and fiercely unafraid.
She’s taking two classes at a local community college this year. Her English composition teacher uses class time to espouse certain beliefs not quite in keeping with my own. (And I don’t mean the Oxford comma, which all civilized writers agree must be used.)
Abby talks to me about these forays in a way that demonstrates that she is her own person, open to persuasion but not easily swayed or intimidated. Which should come as no surprise to me, based on my own forays into Hurricane Abby.2
One day after class, I noticed she was wearing a T-shirt that said “PRO LIFE—FOR LIFE” that she got from activist Lila Rose, who was homeschooled too.
“How did that go over in comp class?” I asked.
“Oh this?” she replied. “This is just who I am.”
Abby—her principles, conviction, faith, and character—is why Debbie and I chose to homeschool.
My precise assignment for this Court Report cover story was to write about Sosebee v. Franklin County School Board, our case in the Supreme Court of Virginia. For reasons that will become clear, the Sosebee case made me think about the generations of the homeschool movement.
HSLDA’s founder, Mike Farris, talks about homeschooling as a “generational win,” having gone from mostly illegal to unquestionably legal in all 50 states, and from fringe to mainstream in the brief span of my adult life. That’s
a good way of looking at the movement from 30,000 feet.
Here at ground level, my generation is almost finished with our innings at bat. For the last 27 years, Debbie and I homeschooled in peace in three different states, largely due to the sacrifice and good works of those who went before us.
The next generation belongs to Abby and her six older siblings. In one sense, they are my generational win, and I am pleased to say I contributed in some small way to passing on to them the blessing of homeschool freedom
But freedom once gained must be nurtured and protected. When asked what manner of government came out of the Constitutional Convention of 1787, Benjamin Franklin famously quipped, “A Republic, if you can keep it.”
This is also true about homeschool freedom. Pendulums swing, cultures change, kingdoms fall, and the hubris of Shelley’s Ozymandias is still a cautionary tale:
Look on my Works, ye Mighty, and despair! Nothing beside remains. Round the decay Of that colossal Wreck, boundless and bare The lone and level sands stretch far away.3
As I reflect on the Sosebee case and what it teaches me about generational wins, I look to the future with hope.
Case after case after case
Before I get to the Sosebee case, please allow me to set the stage.
As a lawyer, I tend to mark time in cases gone by rather than in years. My first big HSLDA case involved a 2-year-old streaker named Jonie Stumbo, in North Carolina.
The question was whether an anonymous report of the toddling Lady Godiva, who ventured unattended into the front yard in hot pursuit of the new kitty cat, was a report of “abuse or neglect” that lawfully triggers a full blown CPS investigation. The trial court had said yes, as had the court of appeals by a two-to-one vote. I came just in time to work on the appeal to the Supreme Court of North Carolina, which voted unanimously against the investigation.
A hallmark of homeschoolers—homeschoolers like Jonie’s parents, Jim and Mary Anne—has been our willingness to take a stand for freedom and the rule of law. As a movement, we will not be remembered for simply going along to get along when our rights are challenged—rather, we consistently band together to achieve goals greater than one individual.
“We have always stood on principle,” said Mary Anne when I last spoke to her. “We made the decision up front that we were going to fight it to the end.”
And Jim and Mary Anne’s faith and principles were transmitted to and appreciated by Jonie. I caught up with Jonie a couple years ago, all grown up and working at Samaritan’s Purse.4 She’d just learned that one of her childhood friends had a question about the Stumbo case on his law school final. “I feel so blessed,” she told me, “to have such an amazing family that decided to stand up for their rights, and I am honored that our case is still impacting and helping others so many years later.”
This is another kind of generational win. And it is why being an HSLDA lawyer is not just a job. The transmission of freedom-loving values from one generation to the next figures prominently in the Sosebee case, which I promise I will get to.
Over the years, I’ve worked cases in little courts all over the country: several federal district courts, courts of appeal, and the appellate courts of North Carolina, Vermont, Pennsylvania, Florida, Nebraska, Ohio, Texas, and California. The California case in 2008 was the most recent of the big homeschooling cases. On the last day of February, the court of appeals, out of the blue, held that homeschooling was illegal. We got involved in March and moved for rehearing (which was granted), and by August, the same three judges who had ruled against homeschooling completely reversed their decision.
That case marked another kind of generational win. California education officials every year or two harrumphed that homeschooling under the private-school statute was not legal, even though thousands of homeschoolers were doing so and thriving. Our president, Mike Smith, wrote hundreds of letters and kept the wolves at bay for many years—but there was always a bit of a cloud.
The Jonathan L case, decided in 2008, lifted that cloud and stopped the wolves’ harrumphing—at least about homeschooling under the private-school statute. But an important lesson for the next generation of homeschoolers to learn is that government bureaucrats are proficient and creative harrumphers, as we will see when I finally get to the Sosebee case, which is soon, I promise.
Peters the K (1, 2, and 3)
For the last several years I have been helped by a young colleague named Peter Kamakawiwoole.
I first met his father, Peter the K-1, at HSLDA’s National Leadership Conference in Baltimore, just a month after I came to work at HSLDA and only days after 9/11. K-1 was on the board of Christian Homeschoolers of Hawaii, and is a pastor with a gentle spirit and a keen sense of humor. I could not have known then that his son, Peter the K-2, who was only 14 years old in 2001, would play such an important role in my life.
Young Peter was an accomplished high school debater through the National Christian Forensics and Communications Association (NCFCA), where he competed at the same tournaments as Lila Rose, who went on to become . . . Lila Rose, founder of Live Action and Hurricane Abby’s example and inspiration. Peter came to Patrick Henry College, where HSLDA’s offices are located, and became a champion in undergraduate moot court under the tutelage of HSLDA’s and PHC’s founder, Mike Farris. In 2006, Peter was my summer intern, where I’m afraid I assigned him some rather tedious work. While at PHC, he became acquainted with another student, Kirk Sosebee, who had also been homeschooled. More about Kirk later. Really.
Peter went on to law school, and Mike Farris grabbed him for a new HSLDA attorney position in 2011. Peter and his wife Corrie (also homeschooled) have four children, including Peter the K-3. Peter has become HSLDA’s principal appellate advocate, among other things. With the departure of Mike Farris to become CEO of Alliance Defending Freedom, and the tragic, too-soon death of beloved PHC professor Dr. Frank Guliuzza, Peter is now also the head coach of PHC’s award-winning moot court team.
In many ways, Peter is walking in Mike Farris’s shoes. In fact, in 2013, Peter assisted Mike during oral argument at the Supreme Court of Nebraska in the Thacker case.5 Between the hotel and the courthouse, the sole of one of Mike’s shoes blew out. Arguing at a Supreme Court is stressful enough without worrying about your wardrobe, so Mike and Peter switched shoes. They won the case—and now it is Peter arguing before the Supreme Court of Virginia.
Comfortable shoes make all the difference.
Three things to know about HSLDA: (1) we believe in homeschooling; (2) we believe in homeschoolers; and (3) we believe in homeschool graduates. Of our eight lawyers, four are, like me, public school grads who homeschooled our kids. The other four are all, like Peter, homeschool grads, and now homeschool their own kids.
That is another kind of generational win.
And now . . . more about Kirk
Kirk Sosebee grew up a homeschooled Air Force kid. He went from PHC to University of Virginia School of Law, then on to practice at a large firm in Roanoke, in the Commonwealth’s southern foothills. Along the way, he and Kristen—a homeschool grad herself—got married and had four kids. Kirk and Kristen started homeschooling their oldest child in 2017 and began by sending in their notice of intent to the Franklin County school superintendent well before they were required to do so.
And that’s what started all the trouble that became the Sosebee case.
Kirk and Kristen’s notice contained all the required information—including their child’s age and home address—so they were surprised when the superintendent wrote to them, saying “because of a policy change, I need additional information to complete your child’s school enrollment. Please provide a copy of your child’s birth certificate and proof of residence in Franklin County.”
It is hard to imagine how such a short statement could be wrong in as many ways as this one was. First, in Virginia, parents don’t “enroll” children in school to homeschool. The homeschooling statute is clear: parents simply notify the school district of their intent to homeschool. Second, homeschooling in Virginia is governed by state statute, not by local school district policy. And third, the statute says nothing about birth certificates or proof of residence.
Imagine Kirk Sosebee’s response. Remember: Air Force kid, homeschooled, PHC, UVA Law, now lawyer. And also that thing I mentioned earlier about homeschoolers not being known for going along to get along when schools act unlawfully.
It would have been easy as pie for Kirk and Kristen to acquiesce.
But no! They wrote a polite letter pointing out that Virginia’s homeschooling statute does not require them to do as the superintendent demanded.
Harrumphing we will go
This time, the district’s lawyer wrote. He said, “until FCPS has those documents the homeschool application is denied.”
Because the school district had escalated by bringing in the lawyers, Kirk and Kristen turned to HSLDA and Senior Counsel Scott Woodruff. Scott’s been helping homeschooling families in Virginia for over 20 years. In that time, he’s seen a
thing or two, and he’s not one to give in to unlawful demands.
He wrote the school district’s attorney, pointing out that homeschoolers in Virginia don’t ask permission to homeschool; parents simply let the school district know that they are homeschooling, in a manner prescribed by the General Assembly.
Therefore, he said, there is nothing for the school district to “deny."
The school’s attorney grudgingly conceded that school districts cannot “deny” homeschool programs but renewed his demand for birth certificates and proof of residency. “Without these items,” he wrote, “FCPS does not have enough information to acknowledge the homeschool request and your client will be subject to Compulsory Attendance where Court intervention may be warranted.”
Notice, he still calls it a “request.” And he went from “denying” to “not acknowledging.”
How that’s different or better, we don’t know. I could cheerfully go to my grave without ever being “acknowledged” by a school district and be none the worse for wear . . . but that’s not all the letter said. Next came the not-so-veiled threat of prosecution, that is, “court intervention.”
That’s where Peter and I came in.
After reviewing the paperwork, we realized that the Sosebees turned in their notice of intent before July 10, 2017 (the day the school board amended its policy to include the disputed documents). The school board conceded that it did not have the power to create ex post facto laws, that is, to make an act criminal after the fact when it wasn’t a crime when done. To put it another way, the Sosebee’s notice of intent satisfied all the law that existed when they sent it in, so even if the board had lawful authority to change the law, it could not outlaw past behavior.
If you give a mouse a cookie . . .
The board did, however, say, “the new policy will apply to the Sosebees for the 2018/19 school year and future years.” In other words, there was a one-year reprieve, but “the School Board will seek court intervention against the Sosebees unless the Sosebees comply with the Policy by submitting proof of residency and a birth certificate by August 15, 2018.”
One of the great Latin maxims, passed down to us from the English common law and prominently discussed in Sir William Blackstone’s Commentaries on the Laws of England (1765–70), applies to this case: “If you give a mouse a cookie, he’ll want a glass of milk.”6
Translated into modern, freedom-loving homeschool-ese, it goes like this: “If you give a superintendent documents to which he is not entitled, he’ll want to make a home visit. If you let him make a home visit, he’ll want to assign state-approved curriculum. If you let him assign state-approved curriculum, he’ll want you to stop homeschooling altogether.”
While it would not be difficult in terms of time or treasure for Kirk and Kristen to acquiesce to the district's unlawful demands, the cost to liberty would be incalculable. To concede the authority of this school board to add to the statute would be
to concede that each of the 133 school districts in the Commonwealth have the authority to do likewise, in 133 different ways. The Boston Tea Party was not so much about a few cents tax, it was about that tax being imposed improperly. The District
of Columbia’s license plates today still proclaim the rallying cry, “Taxation without representation.” Resisting a government body acting outside its authority is woven deep in the fabric of American DNA.
“We were given such a gift in being homeschooled,” Kristen said. “We loved it so much and were able to get such a good education that we didn’t want to take it for granted and let that slide, so that our kids didn’t have the same opportunities.”
On behalf of Kirk and Kristen, Peter sued the school district before it could prosecute them.
Just to recap: two homeschooled kids meet at Patrick Henry College, go on to law school, become lawyers, become homeschool dads . . . and now Kirk is standing up for homeschool freedom, and Peter is representing him on behalf of the largest (possibly only) homeschool freedom law firm in America.
Lunch hours, home room, and detention
In the circuit court, the school district argued that a statute that permits local officials to adopt policies to govern things like school cafeterias and internal school discipline codes also applies to homeschooling.
“What the statute actually says,” explained Peter, “is that schools can make internal policies as long as they are consistent with state law. But Virginia has a homeschool statute that lists the documents parents must provide local officials to fulfill homeschooling requirements. Franklin County’s policy is inconsistent with state law. It’s adding to the homeschool requirements, and only the legislature can do that.”
He added: “The general statute is certainly not intended for punishing homeschool parents who follow the law.” And if school boards in Virginia are granted unfettered power to change their state’s homeschooling requirements, how many school boards in other states will try to claim that same power?
In December 2018, the circuit court agreed with the school district, saying that there was nothing wrong with local school committees creating their own homeschool policies and adding to state-law requirements.
On October 15, 2019, Peter appeared before a three judge panel of Virginia Supreme Court justices and asked them to authorize the full court to hear the case. Kirk was there, along with several homeschool families from Richmond who showed up in support. Afterwards the families met with Senior Counsel Scott Woodruff to discuss why the Sosebee case is so important and what individuals can do to defend their rights.
On October 30, 2019, the panel granted HSLDA’s petition and our opening brief was filed on December 9, 2019. We anticipate argument before the full Supreme Court of Virginia in April 2020.
Real live homeschoolers all around the country won homeschool freedom in the 1980s and ’90s by being willing to take a stand, sometimes at great personal cost. Homeschool freedom will only be preserved if today’s homeschoolers understand that now is their time.
In HSLDA’s office, we are passing on the warrior mantle to the next generation of HSLDA lawyers—in them, homeschool freedom is bred in the bone.
And HSLDA’s friends and members understand the importance of homeschool freedom. “Like many freedoms,” said Kirk, “if you don’t keep fighting for it and keep standing up for it, you’re just going to lose it.”
In Roanoke, Virginia, Anno Domini 2020, Kirk and Kristen Sosebee are taking a stand for themselves, for their children, for other homeschoolers in Virginia—and for Hurricane Abby.
No matter what the Supreme Court of Virginia says, I count the Sosebee case to be a generational win.
1Our beloved founder and president, Mike Smith, affectionately calls us co-laborers. Be careful when typing this. Autocorrect changes it to “cola borers,” which apparently is a kind of tropical pest.
2 Told with permission. She laughed out loud at “Hurricane Abby,” but did not deny it.
3 Shelley, “Ozymandias,” lines 11–14.
4 See the 2018 First Quarter issue of the Court Report.
5 Read about the Thacker case here.
6 Si mus reddere crustulum est quoque velle et lac de speculo. With apologies to Laura Joffe Numeroff, If You Give a Mouse a Cookie, (New York: Harper and Row, 1985)