The Home School Court Report
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Compulsory Education Laws: The Dialogue Reopens

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A Week in the Life of David Gordon

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S P E C I A L   F E A T U R E

A Week in the Life of David Gordon

David Gordon joined Home School Legal Defense Association in 1994, following 12 years in a Tennessee civil trial practice. Today, as HSLDA’s litigation attorney, David handles a wide range of details for our members. Not every week is as exciting as the one in this article, but sometimes a routine trip to represent a member in court can turn into a real adventure...

Like other HSLDA attorneys, David Gordon spends a good deal of time on the phone, attempting to resolve legal conflicts before they get to the courtroom. He listens carefully to determine how the law should be applied in a given situation. - photo by Todd J. Metzgar
Wednesday, August 2, 2000

The main projects on David’s calendar are drafting briefs in the Iowa case of Stone v. Ankeny School District and the New Jersey case of Forstrom v. Fair Lawn Board of Education. (See sidebar.)

When a Massachusetts family calls regarding a social services investigation of a spanking allegation, the Home School Legal Defense Association attorney responsible for that state is unavailable. David takes the call.

The Cases on This Week’s Calendar

Stone v. Ankeny School District (IA)
Iowa’s home school law permits home school students to be classified as “dual enrolled,” which gives the home school student access to all academic and extracurricular activities in the school district. A separate Iowa state law is entitled Post Secondary Enrollment Options Act (“the Act”) and permits public high school students to take courses at the local college at the expense of the school district.

Meggan Stone, a dual enrolled student, took human biology and music appreciation at the junior college in the second semester of her senior year, but the school district refused to pay for it. There is an Iowa Department of Education opinion known as Declaratory Ruling #44 (“DR #44”) stating that dual enrolled students are ineligible for benefits payable under the Act. HSLDA has represented Meggan Stone on her appeal of the school board decision to deny her those benefits. It is our contention that DR #44 is inconsistent with the dual enrollment statute. Furthermore, the purpose and policy behind the act is to promote rigorous academic standards and widen opportunities for high school students. DR #44’s exclusion of dual enrolled students from the Act benefits is contrary to the expressed intent of the legislature.

Following a July 26, 2000, hearing in Des Moines, Iowa, the judge ordered the attorneys to file post-trial memoranda.

Forstrom v. Fair Lawn Board of Education (NJ)
This is the Forstrom family’s effort to obtain special education services at public expense for their 8-year-old son, Gregory. If Gregory was attending any traditional public or nonpublic school in New Jersey, he would get the speech therapy he is eligible for. But the state department of education has ruled that special education services are only for children who attend schools and because home school children in New Jersey “receive equivalent instruction elsewhere than at school,” they are ineligible for services. The trial judge ruled in favor of the Forstrom family and ordered the school district to reimburse the Forstroms for their speech expenses and to provide services to Gregory in the future. The state department of education and the Fair Lawn Board of Education immediately appealed to the New Jersey Court of Appeals. The briefs have been filed and the parties await oral argument.

Prior to calling HSLDA, the member and her personal Massachusetts attorney had decided to permit an interview of the child. The member wants to discuss her rights and obligations under Massachusetts law.

“Massachusetts law is silent with respect to an interview of the child,” David explains. “It says only that the investigation must include the observation of the child. If an interview is permitted, it should not extend beyond the boundaries of the allegation-namely, discipline. Any questions about home education, parental supervision, medical treatment, etc., should not be allowed.”

David adds, “Unfortunately, parents do not have the right to be present with their child during the interview, but an attorney could be present on your child’s behalf.”

Thursday, August 3, 2000

As the day begins, four HSLDA attorneys assemble in President Mike Smith’s office to discuss legal strategy by telephone with General Counsel Mike Farris, who is at an out-of-town convention. At a recent trial in St. Louis, Missouri, a juvenile court judge ruled that the parents’ failure to log 1,000 hours during the 1998-1999 school year amounted to educational neglect. The judge disregarded the fact that the child did not turn 7, the compulsory school age, until after the beginning of the school year, and the fact that there is no evidence of neglect for the 1999-2000 school year. In Mike Smith’s office, the attorneys debate the possible strategies for appeal, as well as the dispositional hearing-when the court will decide the child’s educational placement. The juvenile court judge ruled that the child should undergo psychiatric and educational assessment to be presented to the court. Because the child is severely handicapped, we will need expert testimony that the child’s autistic symptoms can adequately be dealt with at home, as opposed to in the public school.

Back to Iowa and New Jersey. By tomorrow, the Iowa brief must be “Federal Expressed,” and the New Jersey brief must be in Mike Farris’ hands for revision.

HSLDA President J. Michael Smith and litigation attorney David Gordon review legal strategy for the Missourni case. General Counsel Mike Farris joins their discussion by telephone from an out-of-town convention.

Friday, August 4, 2000

The Stone (IA) and Forstrom (NJ) briefs are ready for Mike Farris’ review and are presented to him upon his arrival at the office. He reads the first five pages of Forstrom and summons David to his office.

“We need to trumpet the fact that we were the victor in the trial court and demonstrate more clearly that it is the school board’s and state board of education’s statutory construction that is strained,” Mike says. “We need to make it clear that it is the school board that has a statutory ambiguity-whether home schoolers should be included in the definition of non-public schools, while we have a statutory certainty-namely, that Congress has directed that special education services be available to ’all’ students.”

'Does this look OK?' Will Humble, David's legal assistant, double checks details on pending briefs.
The remainder of the day is spent revising the New Jersey brief. The Iowa memorandum is finished and shipped. David’s assistant, Will Humble, helps with last minute details for a pre-trial conference on Monday in Denver.

Sunday, August 6, 2000

At approximately 1:30 p.m. on Sunday afternoon, David gets to the airport to travel to Denver. He is scheduled to fly to Denver via Detroit, arriving at about 7:00 p.m. MDT. Unfortunately, the flight to Detroit is delayed because of bad weather. The flight boards an hour late, but David can still make his connection to Denver in Detroit. Once on the plane, however, new problems arise.

“After waiting in a long line of departing aircraft,” David says, “the captain informs us he has been instructed to go to a different runway and get into another long line of departing aircraft. So we change runways and begin to wait in line again. But now the captain reports that the delay has depleted our fuel supply. Our plane has less than the regulation standard for fuel, so we must return to the gates. On the way to the gate, the crew reports that the air conditioning equipment is spewing water on the passengers and we will have to change planes. All the passengers deplane and are instructed to walk to a new gate.

Naturally, the preparation of the new aircraft will take time, and I realize I cannot make my connection in Detroit,” David adds with a wry smile.

He calls HSLDA’s travel agency “rescue line” and learns that the next-and last-Sunday connecting flight from Detroit to Denver is full. The 6:56 a.m. flight from Detroit on Monday is also full. Canceling his hotel reservations in Denver for Sunday night, David makes new arrangements for accommodations in Detroit. “I pray I will be able to get on one of those flights as a standby passenger-that is, if I ever make it to Detroit,” David says.

David boards the replacement aircraft at 6:00 p.m. The aircraft appears ready to back away from the gate when a United Airlines gate clerk boards the plane. “There is too much weight on the plane,” she announces and asks for two volunteers to deplane and take a later flight. No one volunteers. David hears her say to the flight attendant that she will return to the gate in order to decide which passengers must be bumped.

After stormy weather and an overweight airplane cause David to miss his connection Sunday night, he tries to catch the 6:56 a.m. Monday flight to Denver, praying that the court proceeding will not begin exactly at 8:30 a.m.

A few minutes later she returns and announces that “D. Gordon” is one of the passengers who must get off the plane. David’s shot as a standby on the Sunday night flight to Denver is now gone. “Now I must get a seat on the 6:56 a.m. flight,” David thinks. He starts praying that the court proceeding will not begin exactly at 8:30 a.m. as scheduled. “That is, if I ever get to Detroit.”

David is reassigned to the last flight to Detroit, which becomes airborne about 8:00 p.m. The plane lands safely in Detroit, where David takes a shuttle to a hotel.

Monday, August 7, 2000

At 6:30 a.m., David is at the gate, desperate to get on the 6:56 a.m. flight to Denver. At 6:45 a.m., he is invited to board. The flight is scheduled to arrive in Denver at 8:00 a.m. and the pre-trial conference is set for 8:30 a.m. in Brighton, Colorado, about 30 minutes from the airport. If every connection is on time, he’ll be only 45 minutes late.

The plane arrives on time in Denver. David hurries to get a taxi.

A huddle of drivers seems unsure where the Adams County courthouse is located. David warns them that he is on a tight schedule, so another driver provides directions. Once in the cab, David learns that this driver is Moroccan and has only been in Denver for two weeks. He won his country’s lottery for an opportunity to immigrate to America. He has never been to this courthouse before and is relying solely upon the directions given to him by the fellow driver.

Using his cell phone, David calls the court clerk to obtain specific directions and to advise that he is en-route. At 9:15 a.m., David is delivered to the courthouse steps, suitcase and briefcase in hand. Through security and quickly to the fourth floor, David enters the courtroom to find his local attorney, opposing counsel, the guardian ad litem (child’s court-appointed attorney), and the social worker seated in the courtroom waiting for the judge’s entrance. A short meeting with the social services attorney reveals the following:

Of the three charges pending against Mrs. W, the county attorney is willing to dismiss the charges of environmental unfitness and emotional neglect of the teenage daughter. The remaining charge is educational neglect, which the county attorney claims will be satisfied if Mrs. W will have her child academically evaluated and agree to follow the recommendations of the evaluator. The test results will not be used to prove educational neglect or to deny in any way Mrs. W’s right to home educate her child. Mrs. W has not provided testing results to the school district as required by statute, so this proposal appears reasonable.

The attorneys return to the courtroom and the judge takes the bench a few minutes later. Although the county attorney asks the judge to enter a default judgment against Mrs. W because she is not present, he advises the court that the parties are close to a resolution of the charges and that the case should be set for a dispositional hearing only.

David objects to a judgment by default and explains to the court that Mrs. W is not present because her attorneys originally advised her that she need not attend. When they learned that she must attend, they left a message on her telephone answering machine to that effect, but there is no evidence that she received it. David apologizes for his client’s absence, but confirms that the parties are close to an agreement.

The court denies the county counsel’s motion for a default judgment and leaves the case set for trial on August 16, 2000. After this pre-trial hearing, David, county counsel, and the social worker further discuss the county’s proposal to resolve the case. It is agreed only that Mrs. W will come into compliance with the statute and that we will work with county counsel to come up with an evaluation satisfactory to all parties.

“By 10:00 a.m. in Denver, I’m again en route to the airport-for the return trip home,” says David.

Tuesday, August 8, 2000

Mike Farris reviews the Forstrom brief again and makes more handwritten revisions. These changes are waiting to be implemented, but in the meantime, David receives the school district’s brief in Meggan Stone’s case before the Iowa State Board of Education. The school district’s principal argument is that the Iowa statute known as the Post Secondary Enrollment Options Act (“the Act”) provides benefits for students who are “attending” public schools, as opposed to those who are “enrolled” in public schools. The school district contends that Meggan Stone was simply enrolled in the public school, but was not “attending” the public school. This argument is as absurd as another of their contentions-that a student must take five credit courses at the high school in order to be eligible under the Act. Obviously, a dual enrolled student like Meggan Stone could never fulfill this requirement; otherwise, she would not be a dual enrolled student, she would be a full time public school student.

"One of the greatest rewards of this job is to visit with families facing trouble around the country and find that, no matter where they live, they love their children and are committed to providing them with the best education they can."—David Gordon Back in the office, David puts finishing touches on the Forstrom brief and drafts a response to an Iowa school district's brief.

“I don’t think the Iowa State Board of Education is going to buy either of these arguments by the school district,” says David, “but we must respond in writing by Thursday.”

While David was out of town yesterday, a fax was received from Mr. and Mrs. Douglas MacIntyre in Scottsdale, Arizona. David has been counseling them regarding the school district’s refusal to provide special education services for their visually impaired children. Both children received a significant amount of expensive equipment to be used at home during the summer of 2000 because the students were classified as “dual enrolled.”

Because Mr. and Mrs. MacIntyre have decided to assume responsibility for all of the education of their children in 2000-2001, the school district is refusing to provide equipment and services. Although a state attorney general opinion issued in May of 2000 determined that a school district can deny special education services to home schoolers, David has advised the MacIntyres that he believes that the attorney general’s opinion is erroneous and that a court should declare it invalid.

HSLDA had agreed to challenge the school district if they refused to provide services. Now the school district has advised in writing that it is denying services for the 2000-2001 school year and that the equipment must be returned immediately. The MacIntyres want to know what to do.

After discussing the case with Mr. MacIntyre and reviewing the state law, David observes that when a party requests a due process hearing, Arizona law requires that the educational placement remain unchanged until the decision of the hearing officer. David advises that he will fax a request for due process to the school district and advise that the equipment should remain in the possession of the MacIntyres.

At the end of the day, David finishes dictating a story for HSLDA’s newsletter, the Home School Court Report. “That’s it!” he concludes, clicking off the microcassette recorder. He turns his computer off, puts a couple files in his briefcase, snaps it shut, and heads home to his wife Julie and their six younger Gordons.