Home School Court Report
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VOLUME XIX, NUMBER 3
- disclaimer -
May / June 2003


FEATURES
A season to encourage

Burnt toast & sticky cards

A letter to my parents

The spiritual power of a mother
National Center hosts 2003 Summit
Farris addresses social workers

DEPARTMENTS
Along the way

Homeschool litigation: preparing the way
Freedom Watch

What's ahead in 2003?
From the heart
Across the states
Active Cases
Members only
About Campus
President's page

Good judges make good decisions

ET AL.

Prayer & Praise

a contrario sensu (on the other hand)

HSLDA legal contacts for November/December 2002



  LITIGATION SUMMARIES  



ACTIVE CASES

ARKANSAS

Court dismisses case

Case: Department of Human Services v. H. family
Filed: 1/26/03
In January, the Arkansas Department of Human Services (DHS) received a complaint that the Harcourt* home had “unsanitary conditions” and that the children were “not in public school.” When the social workers first came to the house on January 10, they found that no one was home. One of the social workers went around to the backyard and peered in the kitchen window. Later that day, the social workers came back. Mrs. Harcourt allowed them to come into the front room, where they saw and spoke with the children. She did not, however, allow the workers to go through the house or to interrogate the children out of her presence.

Home School Legal Defense Association advised the family to send DHS proof that the children were legally homeschooling. The family was also able to submit an affidavit from a respected community juvenile worker testifying that the residence did not present any health or safety risks.

On January 17, 2003, DHS petitioned the court for an order forcing the Harcourts to let DHS into their home to seize their children for interviews. The order was granted, but HSLDA immediately filed a motion to halt it and allow for a hearing on whether such a move was justified.

On February 20, 2003, DHS admitted that it had no other evidence. Accordingly, the court dismissed the case in its entirety.

CALIFORNIA

State Supreme Court denies review

Case: Harrahill v. City of Monrovia
Filed: 4/28/97
On March 19, 2003, the Supreme Court of California denied HSLDA’s petition to review this case challenging Monrovia’s daytime curfew “truancy” ordinance.

HSLDA took up the fight against Monrovia’s truancy ordinance six years ago on behalf of two member families, the Harrahills and the Glovers. The original ordinance outlawed all children from being out in public between 8:30 a.m. and 1:30 p.m. The Harrahill children were frequently stopped by police while traveling to and from a class at a private school.

In January 1999, the Los Angeles County Superior Court struck down Monrovia’s truancy ordinance because it failed to exempt homeschooled students. After losing, Monrovia amended its ordinance to exempt homeschoolers, and HSLDA renewed its challenge, arguing that the amended ordinance violated the California Constitution, which allows only the state to regulate truancy through local school boards. The local ordinance was therefore preempted by the California Education Code, which handles truancy as a non-criminal matter.

A new judge ruled in favor of the amended truancy ordinance. On appeal, the Second District of California also upheld Monrovia’s ordinance by a narrow 2 to 1 margin. HSLDA then petitioned the Supreme Court of California to review the case, but, in March 2003, that court said no.

HSLDA General Counsel Mike Farris expressed disappointment, but urged freedom-lovers to take the long view. “In North Dakota, we had to keep fighting for years before homeschooling freedom was protected, and we’ll do the same here.”

MICHIGAN

SS benefits reinstated

Case: N. family v. Social Security Administration
Filed: 8/26/02
An administrative law judge (ALJ) in Michigan reinstated a disabled homeschooler’s Social Security benefits in response to an appeal from HSLDA. The ALJ ruled that children who are being homeschooled in accordance with state law are “full-time students” just like children who attend public school, and should not be subject to reduction of benefits because they were homeschooled.

“This is a great decision, not only for our member family, but also as precedent for similar cases in the future,” said James R. Mason, Litigation Attorney for HSLDA.

Mr. and Mrs. Near*, who are HSLDA members in Michigan, homeschool their three children, including Steve*, who is disabled. They have received Supplemental Security Income payments (SSI) on behalf of Steve for eight years, which has enabled them to keep homeschooling.

In October 2002, the Nears were notified that Steve’s SSI benefits would be reduced because he and his brothers were homeschooled. Steve’s brothers earned a small income working after school, which would result in a reduction of Steve’s benefits if it were added to the family’s total income. Normally, a full-time student’s earnings are excluded when calculating family income for SSI benefits. But the local SSA office ruled that homeschoolers are not full-time students and reduced Steve’s benefits based on his brothers’ after-school jobs. HSLDA sought reconsideration by the local office but our request was denied.

HSLDA appealed, arguing that homeschoolers are full-time students under Michigan law and are therefore eligible for SSI benefits to the same extent as children who attend public schools.

On February 26, 2003, the administrative law judge reinstated Steve’s benefits. He issued a thorough decision, concluding that because homeschooling is legal under Michigan law, the Social Security administration should have recognized the Near children as full-time students and should not have reduced Steve’s benefits.

MISSOURI

IDEA evaluation ruled mandatory

Case: Camdenton R-III School District v. Mr. and Mrs. M.
Filed: 12/10/02

A Missouri hearing officer has ruled that a local school district has the authority under the federal Individuals with Disabilities Education Act (IDEA) to compel the McCormacks,* homeschooling parents, to subject their children to a comprehensive special needs evaluation even though they have rejected all public school services.

The IDEA is a federal act that helps states pay for special needs services. To be eligible for the federal funds, states must adopt policies and procedures designed to inform parents whose children are privately educated that under some circumstances they may be eligible for publicly-funded special needs services. This provision is known as “child-find.” The hearing officer held that under the “child-find” provisions, local school districts have an affirmative obligation to identify, locate, and evaluate all privately educated special needs children within their geographical jurisdiction, including those who are being homeschooled.

The McCormacks’ 11-year-old son, Sean,* had been enrolled in public school until last fall. They had experienced years of disagreement with the school district over whether Sean needed special education services, but Sean had never been evaluated. The McCormacks offered to have Sean’s academic needs privately evaluated at their own expense. The school district first accepted this plan, then after a change of personnel, rejected it. The school insisted that before it could address his potential academic needs, it also had to evaluate his social and behavioral needs.

Rather than subject their child to a needlessly intrusive evaluation, the McCormacks decided to homeschool him. They had Sean’s academic needs privately evaluated and began privately providing appropriate services to augment his home education. They also joined HSLDA.

Under IDEA, a public school must provide special needs services to all eligible public school children. Schools are also required to spend a certain amount to fund services for some privately educated children, but no individual child has a right to services. And if a child attends private school or is homeschooled, his parents may reject those services if offered.

After the McCormacks withdrew Sean from the public school, the school asked for consent to conduct a comprehensive special needs evaluation. HSLDA Attorney Scott Woodruff immediately notified the school that the McCormacks did not want any public school services now or in the future. They therefore refused consent to conduct the evaluation.

The school nevertheless sought a due process hearing, claiming that under the IDEA’s child-find provisions it had an obligation to evaluate Sean whether his parents liked it or not. The school insisted on the evaluation while acknowledging that the McCormacks had the right to reject any services that might be recommended--and that the school had no obligation to provide any services because Sean was homeschooled!

“This is the epitome of a mindless bureaucratic power play,” said HSLDA Litigation Counsel James R. Mason, III. “The school wants to force an evaluation to see if Sean needs services his parents don’t want, have the right to reject, and that the school has no obligation to provide.”

HSLDA moved to dismiss the due process hearing. We argued that Congress never intended to compel homeschoolers to submit to a public school special needs evaluation unless they were seeking publicly funded services. Instead, the child-find provisions were simply intended to require public schools to advertise the possible availability of services to children receiving a private education. We also argued that if the school district’s interpretation of the child-find law is correct, IDEA would amount to an unconstitutional invasion of parents’ rights to privacy and to direct the education of their children.

The hearing officer acknowledged that forcing an evaluation on unwilling parents created significant privacy and parental rights concerns, but he refused to interpret the statute or consider the constitutional ramifications. He denied the motion to dismiss, and HSLDA is preparing to appeal to the federal district court in Missouri.

HSLDA President J. Michael Smith noted that, in the past, school districts have always backed off once HSLDA notifies them that the parents don’t want publicly funded special needs services. “This case goes to the heart of a parent’s right to homeschool,” said Smith. “Because it involves a federal statute, this ruling could potentially affect homeschoolers in every state.”

* Names changed to protect family privacy.