The Home School Court Report
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MAY / JUNE 2001
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Cover Story
National home school leadership summit

Chicken run!

A state leader's thoughts on the summit

Special Features
HSLDA attorneys on call 24 hours a day

PHC: Wrapping up year one
Just another busy day on Capitol Hill

Across the States
State by State

Regular Features
Active Cases

A contrario sensu

Freedom Watch

Notes to members

Prayer and Praise

President's Page

HSLDA legal contacts

L  I  T  I  G  A  T  I  O  N     R  E  P  O  R  T
Active Cases

In re Sarah D

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Judge orders public school attendance

In the ongoing battle over who really knows what is best for 14-year-old Sarah D, District Court Judge Sue Carol Browning remains determined to send Sarah back to public school.

At the arraignment on November 16, 2000, Judge Browning ordered Sarah to return to public school. Upon learning two weeks later that the girl was not re-enrolled in public school, Judge Browning promptly cited Mrs. D for contempt of court and issued a bench warrant for Mrs. D's arrest without bond and a pick-up order for the child.

HSLDA obtained a temporary emergency stay on Browning's orders, but the school district dropped its initial charges against the girl, and initiated new truancy charges, bringing Sarah back into Judge Browning's court for another arraignment on January 8, 2001, and a trial on February 13, 2001. At the trial, home education expert Dr. Brian Ray testified that the D family's program of home instruction was suitable for Sarah, that she was making good progress in it, and that home education was better for her academic achievement than public education.

Nevertheless, Judge Browning found Sarah guilty of habitual truancy and ordered her to attend public school until she is 18. Violating the order will land the girl in juvenile detention for seven days.

HSLDA immediately filed an appeal and a motion for stay. The judge refused to grant a stay. HSLDA also filed a petition to prohibit the order to enroll in public school from taking effect and requested an emergency hearing. Judge Lewis, in Bowling Green, Kentucky, heard arguments via telephone conference on February 14, 2001, but denied the emergency motion.

On March 23, 2001, the circuit court denied HSLDA's petition for writ of prohibition, because the pending appeal presented some identical issues. The circuit court judge expressed the importance of the case and set the appeal promptly for hearing on April 20.

On April 20, the circuit court heard oral argument on the appeal of the habitual truancy finding and subsequent disposition to public school. HSLDA argued that five of the unexcused absences charged against Sarah were days on which she was being home schooled. Six other days of alleged absence occurred in the previous school year, 1999-2000. No other child in Logan County was prosecuted this year for last year's absences. Prosecution for last year's absences evidences selective enforcement and vindictive prosecution that violates Sarah's civil rights. With respect to the order to attend public school, HSLDA showed the court that this ruling was an abuse of discretion because there is no support for it in the trial court record and because it is contrary to law!

HSLDA is hopeful that the circuit court judge will recognize the right of Sarah's parents to choose her educational course.

State v. Kathy D

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Mother spends Valentine's Day in court

A home school mom spent Valentine's Day in a Maryland criminal court this year. Before the day was out, however, she had won over the prosecutor, the judge, and even the school officials who had filed the criminal charges.

Late last summer, Kathy D told her school district that she planned to teach her sons at home this year. She filled out her Assurance of Consent form on August 27, 2000, and kept her children home. School officials insisted that the boys had to be in school until her program was "approved," so she briefly re-enrolled them in public school. The school district recognized her home school program on September 27, but then filed criminal charges against her for 15 unexcused absences before that date.

The district was wrong to file these charges, but this problem may have stemmed from their using outdated procedures. Back in the 1980s, Maryland parents did have to obtain "approval" to home school from the county school superintendent. However, by 1991, Maryland's home school by-laws left parents free to begin home schooling 15 days after they file an Assurance of Consent form with the local school district. Thus, most of the "unexcused absences" on the criminal complaint were actually legal home school days.

HSLDA Attorney Scott Somerville represented Kathy in criminal court, with the capable assistance of Bruce Kent, a home schooling father and Maryland attorney.

The prosecutor insisted that she had nothing against home schooling. Quite the contrary: home schoolers had impressed her, especially her home schooled babysitter. The prosecutor made it clear that she was more than willing to avoid going to court if the school district would agree.

After discussion with attorneys Somerville and Kent, school officials agreed to keep the matter out of court. The prosecutor was delighted, and agreed to continue the case for 90 days, with a promise to drop the charges altogether if both sides followed the procedures in the by-laws.

The judge agreed to the two parties' proposed solution, but only after objecting to the criminal charges the district had filed against the mother. "In general, I disapprove of this kind of case," he said. "It is almost impossible to show a criminal intent."

State v. Mary S.

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Mother charged with 72 counts of truancy

Maryland regulations require home school families to either teach their children under the supervision of a church-related school or institution, or submit a portfolio to the local school system periodically for approval. Mary S has strong religious convictions against allowing her children's education to be subject to the approval of the public school system, but could not find an acceptable church-related school. Her solution was to find a reputable curriculum on her own. She chose "Our Lady of the Rosary" curriculum, but the Howard County public schools rejected Mary's solution and charged her with 72 counts of criminal truancy. HSLDA expects the trial to be held in May.

State v. Cathy C.

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Mother jailed for three days

It was only 10 days after Mrs. C had withdrawn her third-grade son from the public school. Only one day after she recorded her notice of home school enrollment with the register of deeds pursuant to statute. And, the same day that the school district received her notice of home schooling.

Although Mrs. C had jumped through all the proper legal hoops to home school, a juvenile court officer filed a petition against her, alleging criminal educational neglect, and had her arrested. Following three days in jail, Mrs. C was released on $750 bond. Circuit Court of Stoddard County, Juvenile Division, filed a temporary removal order and placed her son with his natural father.

HSLDA appeared with Mrs. C in court on April 3, 2001, at which time the court dismissed the petition and returned her son to her custody. Mrs. C is now free to home school without interference.

State v. Mr. & Mrs. D

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Home school records suspended

Acting on a report that the parents are in violation of the compulsory attendance statute, the Charles County Attorney subpoenaed our member family's home school materials and records. This action was taken pursuant to a statute authorizing such subpoenas in the course of a criminal investigation.

HSLDA contacted the county attorney and informed him that the child in question was not subject to compulsory attendance at the beginning of the school year and sent him a birth certificate to prove it. Missouri's compulsory attendance statute defines the school year as July 1 to June 30. Our member's daughter was seven years old on July 19, 2000. Therefore, according to the statute, the child was not seven at the beginning of the school year and could not be required to attend school in the 2000-01 school term. We are awaiting a response from the county attorney. If the county attorney disagrees with our interpretation, we will oppose the subpoena in court.

North Hudson DYFS v. Koehler Family

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New Jersey
Appellate court blocks "fishing expedition"

Bill and Shereelynn Koehler and their five children were the subject of a bogus referral to the New Jersey Department of Youth and Family Services (DYFS) alleging that their children don't wear socks in the winter or sleep in beds. Relying on what he believed to be his Fourth Amendment right to be safe and secure in his home, Mr. Koehler refused to permit the DYFS caseworker to interview his children or inspect his home. DYFS asked the New Jersey Superior Court for an order to investigate.

HSLDA filed an application for emergency stay and represented the Koehler family at a motion to show cause hearing on January 31, 2001, to argue that the order to investigate should not be issued. A superior court judge observed that the New Jersey child abuse investigation statute authorizes a court order to investigate when it is "in the best interest of the child." HSLDA's arguments that there was no probable cause to support the issuance of a court order went unheeded. The trial judge ruled that the children should be interviewed and the home entered for investigation.

Immediately following the hearing, the children were interviewed by the DYFS social worker in the presence of counsel. The order to investigate the home was scheduled to take place 48 hours later. During the interim, HSLDA applied to the appellate court division for a stay and reversal of the order.

The appellate court granted the emergency application for a stay on February 6, 2001. Both sides were given 48 hours to supply additional briefing.

On February 9, after reviewing the briefs of all parties, the appellate court ruled that the order to investigate the Koehler home was in violation of the law and must be reversed. The court explained, "[a]bsent some tangible evidence of abuse or neglect, the Courts do not authorize fishing expeditions into citizens' houses." The court went on to say, "[m]ere parroting of the phrase 'best interest of the child' without supporting facts and a legal basis is insufficient to support a Court order based on reasonableness or any other ground."

Successfully resolved, this case is closed.

Commonwealth v. Louise T

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Criminal charges filed against grandmother

Louise T is the grandmother and guardian of two children. After a long history of problems with the Richmond public schools, Louise told the school officials that she would be teaching the children at home. Several months later, a social worker began to ask more and more questions about the children, which eventually led the school officials to file criminal charges against the grandmother.

At the trial on March 23, 2001, HSLDA explained that Louise had been teaching the children all year long, and that she had enrolled the children in the New System School, an "umbrella school" with members all over America. New System School operates under private school laws, but in Virginia, New System families can also claim a religious exemption from the compulsory attendance law. Although Virginia's religious exemption statute refers to "parents," not "guardians," the court was satisfied that the home education was occurring with the mother's full knowledge and consent. The judge ordered the case to be automatically dismissed on April 23, provided Louise submits the necessary religious exemption paperwork to the Richmond Public Schools, with copies to the court.