The Home School Court Report
VOLUME X, NUMBER 4
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JULY / AUGUST 1994
Cover
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Cover Story
Victory! Texas Supreme Court Protects Home Schooling

Features
Justice Stephen Breyer: A Moderate Who Threatens Religious Freedom and Private Education

Home Schoolers Released from Prison in South Africa

Litigation Report

The 1993 - '94 School Year in Review

Across the States

National Center Reports

Congressional Action Program

Across the Provinces

President’s Page

L I T I G A T I O N   R E P O R T

How Our Cases Are Stacking Up!

Litigation means always having to be patient—but after eight years of waiting, the Texas Supreme Court has finally ruled in favor of Texas home schoolers. (See cover story). Other cases still continue to grind on through the court systems. This article reviews the status of cases still pending.

Tennessee state court cases: Tennessee continues to dominate the HSLDA case load, with "unruly child" charges pending against eight families. The Tennessee Department of Education has encouraged such litigation. In light of several recent Tennessee Supreme Court decisions on family rights, it is highly unlikely that these juvenile charges against obedient, well-educated children will be upheld. Charges against two of the families will probably be dismissed in the near future, but the other six may still go to court.

Tennessee federal court case: HSLDA members filed a federal lawsuit against the Tennessee Commissioner of Education in 1992. Under Tennessee law, parents without baccalaureate degrees were prohibited from home schooling their high school-aged children. Although the law permitted the Commissioner of Education to grant waivers to this requirement, none were ever granted. This lawsuit challenged the department's long-standing habit of denying all waiver requests. Judge Hull of the Eastern District of Tennessee Federal Court dismissed the case on technical grounds that can only be described as bizarre, ruling that because HSLDA had once represented families in state court we could not represent families raising the same issues in federal court.

HSLDA appealed the dismissal to the Sixth Circuit Court of Appeals. The case was not heard until April 18, 1994. On April 13, however, the Tennessee legislature passed a new law which allows parents without baccalaureate degrees to home school high school-aged children if they are operating under a church school. The Sixth Circuit threw out the lower court's technical ruling and sent the case back to that court for a new disposition in light of the new law. The HSLDA member families have decided to dismiss the lawsuit at this time, in order to give the new Commissioner of Education an opportunity to modify his waiver policy. If the Commissioner denies the families' new request for a waiver, they may refile the suit.

Iowa criminal prosecution: a Special Prosecutor brought criminal charges against Paul Dorr, an Iowa father who has conscientious objections to complying with the state's home-school law. Mr. Dorr feels that he should not "render unto Caesar the things that are God's." At first, this complex constitutional case was assigned to a magistrate who isn't even a lawyer. After HSLDA filed legal objections and the defendant waged a public relations campaign, the magistrate withdrew from the case. Many Iowa citizens called Special Prosecutor Jon Martin to ask him to exercise his prosecutorial discretion and drop the case. He has not dropped the case, but he has dropped out of it—Martin resigned his job on June 30. At this point, there are still charges pending, but no judge and no prosecutor.

New York administrative appeal: Mary Lou Brown has taught her own children at home since well before New York's current regulations went into effect. In 1985, the school district filed child neglect allegations against Mrs. Brown under the old law. A court considered the case, ruled that the children were receiving an excellent education, and dismissed the neglect charges. Despite this history, when she began home schooling her adopted daughter last fall, lawyers for the school district insisted that she comply with the new regulations or face new charges. Mrs. Brown responded by requesting a religious exemption based on the new Religious Freedom Restoration Act of 1993. School board lawyers refused to consider her request, and the school filed allegations of child neglect. We have appealed the school board action to the New York Commissioner of Education.

Massachusetts federal civil rights suit: The First Circuit Court of Appeals heard the Pustell v. Lynn Public Schools lawsuit over mandatory home visits last fall. The court refused to determine at this time whether or not Lynn's mandatory home visit policy is unconstitutional. The court noted that the policy may be illegal, since Massachusetts law nowhere authorizes such visits. The Pustells must file suit in state court to determine whether Lynn's policy is permissible under state law.

Virginia criminal prosecution: a lower-income family had their two sons in a terrible public school for most of the 1993-94 school year. The children fell so far behind in their public school classes that the parents spent four to six hours each day helping them with their schoolwork. The children were beaten up on the way home from the school bus, and were threatened at school. An older boy threatened the seven-year-old with a "Rambo Knife," an oversized hunting knife. Little Jonathan grabbed the plastic butter knife off his cafeteria tray and said, "Don't mess with me." The assistant principal seized Jonathan and his butter knife and took him home, where the principal shouted at the mother, telling her what a monster her child was. (Incidentally, nothing was ever done to the boy with the hunting knife!) The mother finally said, "Well, I guess my boys just won't be coming back!"

With that, she and her husband began educating the boys at home. It was far easier to teach them during normal school hours than to let them struggle through a terrifying school day and then stay up late at night to do school work. The boys were able to concentrate on studies rather than self-defense. The mother was very happy with the home school program—until a police officer came to the door with a warrant for her arrest! HSLDA went to court in their defense. We were able to block the prosecution by showing that the school never contacted the family with a written notice prior to filing charges.