UTAH
New Legislation Makes State Safer
Utah has just enacted legislation that dramatically improves the legal status of home schoolers. Although the new bill does not create any new options for home school families, it vastly reduces the chance that any family will be convicted for standing on their constitutional or statutory rights to home school.
Under Utah law, a family who is educating a child at home under an approved home-school program" is safe from prosecution, while any other family faces some risk of going to court. Utah law is very ambiguous about what other options home schoolers may pursue. Home-schooling families routinely educate their children under the covering of private schools, or pursuant to their constitutional right to direct the education of their children. Both of these options have a solid basis in law, but may or may not be recognized by the local school district. This substantially raises the risk of court action.
If a school district determines that a family is educating their child in an unapproved manner, the school officials have three options. They can respect the family's right to direct the education of their child (and do nothing), they can refer the matter to the district or county attorney for prosecution (in criminal court), or they can file a petition alleging educational neglect (in juvenile court). Of these three options, the only one which spells significant trouble for home schoolers in Utah is the third-educational neglect charges in juvenile court. Criminal prosecution of home schoolers is very rare, since prosecutors have real crimes to worry about. When and if a home school matter does wind up in criminal court, the prosecutor must prove beyond a reasonable doubt every element of the charge. Any ambiguity in the law must be read in favor of a criminal defendant. A criminal defendant may raise any affirmative defense, including the free exercise of religion, the Religious Freedom Restoration Act, the constitutional right to direct the education of a child, etc. This means that a home schooler in criminal court will almost always be acquitted. Since this is the case, most prosecutors will exercise their prosecutorial discretion and refuse to bring charges against such families.
The real danger, then, has lain in school boards that use their power to file educational neglect petitions. School boards, unlike prosecutors, have a vendetta against home schools. In juvenile court, one need only prove a case by a preponderance of the evidence," not beyond a reasonable doubt." Instead of looking at a criminal fine of a few dollars, families face the possibility of having their children taken away. Any ambiguity in the law tends to be read against the parents. All this adds up to a very high-risk situation for the home school family.
All this has changed with Utah House Bill No. 334. Under this amendment to § 78-3a-316, the only way a school will be able to successfully prosecute for educational neglect is if a family really is neglecting their child (this does not include home schoolers). The school must provide, by clear and compelling evidence, that there is real neglect and that the school has done everything required of it under Utah law. Even if the school is able to prove this, though, the family may still raise any one of eight different affirmative defenses. A family cannot be convicted if they are conducting an approved home school program, or if they are achieving educational progress. Note that a family achieving progress need not be conducting an approved home school program, and that a family conducting an approved home school program need not show progress.
The net result is one of the best educational neglect laws on the books in America. We will be using this statute as model legislation for other state organizations to propose. Although the new law does not end any chance of prosecution in Utah, we believe it is very unlikely that any Home School Legal Defense Association member will be convicted of educational neglect under this statute.
