Judge Stephen Breyer is the first judicial nomination which Home School Legal Defense Association has ever opposed. It is our position that a person should not be placed on the Supreme Court of the United States if he believes that it is constitutional for government to ban home education.
Breyer wrote the opinion of the First Circuit in New Life Baptist Academy v. East Longmeadow School District, 885 F.2d 940 (1st Cir. 1989). In that decision Breyer openly embraced the theory that government has the total discretion to regulate private education as it will. Home schoolers fared even worse under this decision. Breyer cited with approval two cases which he stated stood for the proposition that a "total effective ban" on home schooling is constitutionally proper.
Based on Breyer's opinion in New Life, there is little doubt that he would approve of government policies which: (1) demand teacher certification for private and home schools; (2) permit government inspections (so-called "home visits") in private and religious schools; and (3) allow school officials great discretion to "approve" private and home schools without even the necessity of objective written standards.
Home School Legal Defense Association wrote a friend of the court brief in the New Life case before Breyer and his fellow judges on the United States Court of Appeals for the First Circuit. Under Massachusetts law, home schools are treated as private schools.
After the disastrous First Circuit decision, New Life Baptist Academy did not have the funds to appeal the decision to the United States Supreme Court. The private school's attorney asked HSLDA to underwrite the cost of the appeal to the Supreme Court. Michael Farris wrote the petition for review to the Supreme Court and served as lead counsel in that case. The Supreme Court declined to hear the case.
Copies of our petition to the Supreme Court (which include the full text of both Breyer's opinion and the excellent opinion of the trial judge) are available from HSLDA for the cost of $10.00.
HSLDA has already mailed to its members a letter and a fact sheet asking for all friends of home education, private education, and religious freedom to write or call their United States Senators to oppose the nomination of Stephen Breyer to the Supreme Court.
Michael Farris has requested time before the Senate Judiciary Committee to testify in opposition to Breyer's nomination to the Supreme Court.