The Home School Court Report
VOLUME X, NUMBER 1
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JANUARY / FEBRUARY 1994
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H. R. 6
SPECIAL REPORT


Cover Stories
HSLDA Families Attacked by Social Workers

National Christian Home Educators Leadership Conference

Features

South Dakota: Worst Home School Bill of the Year Withdrawn

Home Schooler Wins Case in Virginia

Congressional Action Program

Across the States

National Center Reports

President’s Corner

Home Schooler Wins Case in Virginia

After all the years Home School Legal Defense Association has spent fighting teacher certification requirements for home schoolers, it is ironic to find ourselves in court defending the right of parents to home school under the certified teacher provision.

Charles and Nancy Berlin of Manassas, Virginia, have two children and have been home schooling for three years. Until this year, however, their oldest child had not been of compulsory school age. Since Mrs. Berlin is a state certified teacher, they chose to operate their home school under Virginia’s certified teacher statute (§ 22.1-254(A)).

The Prince William County School Board, however, challenged the right of the Berlins to home school under the certified teacher statute, insisting that they operate under the home school law. Virginia’s home school law, of course, imposes several other requirements, including testing, which are not required of the certified tutors under the statute.

In spite of the fact that HSLDA had won a case in Bedford County in March 1988, Commonwealth v. Shiflett, which upheld the right of parents to operate under the certified tutor statute, Prince William County insisted on taking the Berlins to court.

On November 24, 1993, Prince William County School Board v. Charles Berlin was argued in Circuit Court before Judge Richard Potter. The school board attorney argued that the certified tutor option was really only for non-parents. The school board also asserted that the home school law, passed in 1984, was the exclusive option for parents who were choosing to home school.

Attorney Christopher Klicka, defending the Berlins, pointed out that the school board’s argument ignores the fact that parents can legally home school under other options, including the religious exemption option, the five-year-old exemption option, and the health exemption. Furthermore, Klicka argued that the Virginia legislature specifically intended the tutor option to apply to parents who home school their children as well as to non-parents. In an earlier Virginia Supreme Court case in 1982, the Court specifically stated that the certified tutor option was available to parents who home school their children. In fact, at that time, that was the only way home schoolers could legally operate in the state of Virginia. Klicka emphasized that there was no conflict between the home school law and the certified tutor option. Parents who qualified under the certified tutor option could choose it over the home school statute option. HSLDA asked the Circuit Court to deny the school board’s motion for a summary judgment.

The Prince William County Circuit Court ruled in favor of the Berlin family and stated,

Now, in plain reading, it seems to me this gives a parent four choices: you send your child to public school, you send your child to a private school, you have your child taught by a tutor or teacher, either in the home or outside the home, by the parent or by a non-parent, or you provide for home instruction as described in 22.1-254.1. The Court notes that the term “tutor” or “teacher” is not defined as parent or non-parent. The term “tutor” or “teacher” is not defined as in the home or out of the home, but I did note that in the Grigg case, the Court found that it was an intent, that was to include in home teaching.

The Court is simply stating here that according to the Virginia legislature’s intent, the Virginia Supreme Court’s decision in Grigg, and the plain reading of the statute, the certified tutor option applies to parents as well as non-parents. Therefore, any parent who meets the qualifications of a tutor or teacher under § 22.1-254 can legally teach their child under this option rather than under the home school statute. The Court concludes:

I don’t think these two code sections are in conflict. I think these two code sections are very clear. I think it gives you four alternatives. The fourth alternative is described in § 22.1-254.1. That fourth alternative, by definition in § 22.1-254.1, was not meant to define the other three alternatives, nor do I see any legislative intent to limit the tutor or teacher either to the home as a place of location or to the non-parent. So clearly, the statute provides for teaching within the home by a tutor or teacher of qualifications prescribed by the Board of Education and approved by the Division Superintendent. Based on the facts, as stipulated to me for the purpose of this summary judgment motion, I must deny the [board’s] motion for summary judgment at this time…. it seems to me that this woman meets the third alternative, which is to be a teacher within the home who is qualified pursuant to the requirements of the Board of Education and has been approved by the Division Superintendent, and she need not meet the requirements of the fourth alternative, which are defined in 22.1-254.1.

The court’s ruling clearly states that the home school statute and the certified teacher statute are just two options from which parents can choose if they are qualified. Finding no conflict between the two statutes, the Prince William County Circuit Court signed an order denying Prince William County’s motion for summary judgment. As a result, the Prince William County School Board formally dismissed their declaratory judgment action.

HSLDA is thankful to the Lord for providing this victory in the Berlin case. This case will be significant in enabling HSLDA to convince half a dozen other school districts who are challenging the right of parents to operate under the certified teacher statute.