The Home School Court Report
VOLUME XVII, NUMBER 4
- disclaimer -
JULY / AUGUST 2001
Cover
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Cover Story
The new pioneers: Black home schoolers

On the frontier: Four home school families

Special Features
Kentucky teen finally free to home school

Membership statistics—Top ten states

Across the States
State by State

Regular Features
Freedom Watch

Active Cases

Notes to members

Prayer and Praise

President's Page

FYI
HSLDA legal contacts for April 2001

S P E C I A L   F E A T U R E

Kentucky teen finally free to home school

In re Sarah Dukes
Filed:
10/27/00
A state appeals court upheld a couple's "fundamental right to make decisions" about their child's education when it reversed a hostile juvenile court judge's finding of habitual truancy and order forcing 14-year-old Sarah Dukes to attend public school.

This saga began last fall when Sarah's parents began home schooling her after ill health made it too difficult for her to attend public school. Within a week, the school district pressed truancy charges against the girl. On November 16, 2000, before trial, District Court Judge Sue Carol Browning ordered Sarah to attend public school.

Upon learning two weeks later that the girl was not re-enrolled in public school, Browning issued a pick up order for Sarah and an arrest warrant for Sarah's mother for contempt of court. Because Browning did not first conduct a hearing to examine the evidence and give Mrs. Dukes an opportunity to explain her daughter's absences, Home School Legal Defense Association stepped in and immediately applied to a higher court to set aside the contempt order. Seventh Judicial Circuit Court Judge Tyler Gill agreed that Judge Browning did not follow due process as required by Kentucky state law, so he nullified the pickup order and arrest warrant.

However, Logan County school officials continued to allege that Sarah was truant. When the school attorney learned that the state law requires proving nine unexcused absences for habitual truancy, instead of the eight alleged, he dropped the initial charges and filed an amended petition alleging 10 unexcused absences. Sarah was arraigned on the new charges on January 8, 2001. At the arraignment, Judge Browning refused to hear evidence regarding the family's home instruction program and instead admonished the parents that they were educationally neglecting their daughter.

At Sarah's February 13, 2001, trial, home education expert Dr. Brian Ray testified that the Dukes family's home instruction program was suitable for Sarah, that she was making good progress, and that home education was better for her academic achievement than public education. Nevertheless, Judge Browning decided Sarah was guilty of habitual truancy and ordered her to attend public school until she is 18.

On April 20, the circuit court heard oral argument on the appeal. HSLDA argued that five of the unexcused absences charged against Sarah were days on which she was being home schooled. Six other days of the alleged absences occurred in the previous school year, 1999-2000. Since no other child in Logan County was prosecuted this year for last year's absences, it appears that the school district is engaging in selective enforcement and vindictive prosecution. HSLDA also pointed out that Judge Browning's decision that Sarah must attend public school until age 18 has no factual support in the trial court record and is contrary to law.

In the May 31, 2001, 7th Judicial Circuit ruling on the appeal, Circuit Judge Gill wrote that the trial court not only misunderstood the parental right to direct the education of their children, but also committed a serious technical error. The lower court should have dismissed Sarah Duke's case because proper notification procedures were not followed by the school district, Judge Gill said. He interpreted Kentucky law to say that habitual truancy prosecutions are allowed only after the parents are notified three times of unexcused absences.

But the technical issue was not the worst thing the trial court did. Gill wrote: "Regardless of the problems mentioned above, this case turns upon . . . whether the conduct of a child in being truant from school, without any showing of misconduct on the part of the parents, triggers a forfeiture of the parents' fundamental right to make decisions concerning their child's education-to the State."

Gill answered this emphatically: "Absent a showing of some form of misconduct on behalf of the parent, this fundamental parental right should not be confiscated by the State because a status offense was committed by the child. . . . parents are in a better position to make decisions concerning their children than the courts."

David Gordon, the HSLDA attorney who litigated the case, said the trial court was determined to recapture Sarah for the public school system. "We are grateful that the appeals court recognized the juvenile judge's abuse of parental rights and restored the authority of Mr. and Mrs. Dukes over their own daughter."

Sarah is now free to continue her home schooling until she graduates.