On April 17, 2020, HSLDA attorney Peter Kamakawiwoole asked the seven members of the Supreme Court of Virginia to strike down a Franklin County School Board policy that purports to add evidentiary requirements to Virginia’s homeschooling statute.
The case began in 2017, when homeschool graduates Kristen and Kirk Sosebee sent in their notice of intent to homeschool their oldest child. They were surprised when the school district told them their notice was deficient because it did not include a birth certificate or a utility bill to prove residency, neither of which were required by the statute. But the school board had recently adopted a local homeschooling policy requiring these two documents.
Kirk—who happens to be a lawyer—wrote to the school board, saying the statute did not require him to submit these documents to operate a lawful homeschool. The school board’s lawyer then threatened “court intervention” if Kirk and Kristen did not comply with the school board’s new policy.
A Question of Authority
To prevent the Sosebees from being wrongly prosecuted, HSLDA sued the school board, arguing that it did not have the lawful authority to add to or alter the statute passed by the General Assembly. The trial court agreed with the school board, and we asked the Supreme Court of Virginia to take the case, which it did.
Due to COVID-19, the court heard oral argument by telephone conference call. You may listen to the argument here: (Sosebee et al. v. Franklin County School Board).
Peter argued that the General Assembly established, by statewide statute, how homeschoolers commence a homeschooling program in Virginia. The General Assembly made it easy to begin a program by simply providing a notice of intent at the beginning of the school year. The statute then requires evidence of progress at the end of the year.
Nowhere do Virginia statutes authorize the Commonwealth’s 133 school districts to add to the statute.
At Risk of Prosecution
The school board’s lawyer acknowledged during the court’s questions that if the Sosebees did not comply with the local policy, it intended to either prosecute them for a misdemeanor truancy charge or take them to family court. There, it would be alleged that their son is a “child in need of services”—in other words, that he is being abused or neglected by his parents.
In response to this alarming assertion, the chief justice interjected, “It sounds to me like it’s not a child in need of services. It’s a school board in need of paper.”
Homeschoolers learned long ago how important it is not to acquiesce to the unlawful demands of bureaucrats. That principle is not about how difficult it is to comply, but rather about who gets to make the law. Going along with this seemingly small burden today opens the door for each of the 132 other school districts in Virginia to impose additional, perhaps more onerous, burdens—like requiring home visits, instituting curriculum review, or mandating specific days and hours of instruction.
Focus on Freedom
James Madison, in his famous Memorial and Remonstrance Against Religious Assessments in 1785, said:
[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle.
School boards in Virginia do not have the lawful power to amend the General Assembly’s homeschooling statute. Kirk and Kristen Sosebee took alarm at this first experiment on their liberty, and acted on that principle and to prevent further usurpations.
HSLDA will always come alongside homeschoolers to vindicate this quintessentially American view of liberty. If you would like to be a part of this and other cases HSLDA is pursuing, please consider making a donation to assist our efforts to defend homeschool freedom.
We expect a decision from the Supreme Court of Virginia in the next few months. Please pray for a favorable outcome.