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May / June 2003

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Burnt toast & sticky cards

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National Center hosts 2003 Summit
Farris addresses social workers

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Homeschool litigation: preparing the way
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a contrario sensu (on the other hand)

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Homeschooling litigation: Preparing the way

by Zan Tyler

The greatest obstacle pioneering homeschoolers faced two decades ago was daunting: in most states home education wasn't legal. When Mike Farris and Mike Smith joined forces in 1983 to form Home School Legal Defense Association, their desires clearly reflected the injunction of Isaiah to "Remove every obstacle out of the way of My people." Clearly, the path of homeschooling was strewn with stones (boulders, really) that had to be removed. Litigation became a key to removing the legal obstacles standing in the way of homeschooling families.

Build up, build up, prepare the way! Remove every obstacle out of the way of My people. (Isaiah 57:14)

The chronicles of the hundreds of cases HSLDA has tried in the past 20 years would fill volumes. In a recent conversation, I asked Mike (Farris) to choose five of the key cases that stand out in his mind as landmark. These are the cases he chose, in chronological order: the DeJonge case in Michigan, the Jeffery case in Pennsylvania, the Diegel case in Ohio, the Triple E case in South Carolina, and the Calabretta case in California.

The DeJonge case: Mandatory teacher certification

On April 23, 1985, the state of Michigan issued warrants for the arrest of homeschooling parents Mark and Chris DeJonge, who were charged with criminal truancy because neither of them were certified teachers.

In 1985, the DeJonges (pictured here in 1999) were charged with truancy in Michigan because they were not certified teachers.
HSLDA Senior Counsel Christopher Klicka remembers the frustrations:

We argued the case at the district level and we lost. The judge wouldn't even let us introduce evidence that the children were scoring above average on the standardized achievement tests. He just wanted to know whether the parents were certified or not. It was an issue of control. We appealed to the next level: we thought for sure that this judge would understand. He didn't. We went to the Court of Appeals. They didn't understand; they ruled against us—in fact, they ruled against us three times.

"When we went to do the oral arguments at the Michigan Supreme Court, it was an exciting time," Mike Farris recalls. "I remember walking out of the oral arguments thinking, 'We've got a shot at this.'"

And HSLDA actually won the case. On May 25, 1993, the Michigan Supreme Court handed down its decision. Chris Klicka recites the miraculous conclusion:

We found out from a Detroit Free Press news reporter that the day after the DeJonge decision, he had an interview with Chief Justice Cavanaugh. The Chief Justice told the reporter that the action was actually 4-3 against us, up until the day before the decision was released. And it had been eight months since oral arguments, eight months since they had apparently already made the decision we were going to lose.

Chief Justice Cavanaugh said that Justice Levin came up to him and said he wanted to change his vote. When he asked him why, he really didn't have a reason. He just wanted to change it. So God changed a decision from one that was against us to one that was for us. The majority opinion became the dissenting opinion, and the dissenting opinion became the majority opinion. We know from Scripture that "The heart of the king is like rivers of water and He can turn it however He will." That's exactly what He did with Justice Levin.

Obstacle removed: Teacher certification law declared to be unconstitutional when in violation of religious freedom.

The Jeffery case: Unconstitutionally vague

On October 31, 1986, in Pennsylvania, HSLDA filed a federal civil rights action (Jeffery, et al v. O'Donnell, et al) on behalf of nine homeschooling families against 11 school districts. The case challenged the constitutionality of Pennsylvania's homeschool law, which gave each district superintendent the ability to create policy. Some schools in Pennsylvania were friendly to homeschoolers, but a number were harsh in terms of teacher qualifications and/or student testing requirements.

Mike Farris said, "It was a crazy quilt—with each superintendent requiring different things. So what we were able to do was paint a picture of the crazy quilt, and show a federal judge it was nuts. When the judge ruled the Pennsylvania law 'unconstitutionally vague,' it was great. It was one of the first big wins we had in declaring a law unconstitutional.

Obstacle removed: This August 24, 1988, decision laid the groundwork for having other state laws declared void for vagueness. Additionally, as a result of this victory, over 20 cases in court against HSLDA families were won or dismissed.

The Diegel case:Prejudice and inequity

Mike Farris flew out to Ohio to defend Robin Diegel against truancy charges in August of 1987. In addition to helping her prepare to give her testimony in court, he had the privilege of sharing the Gospel with Robin. Robin became a Christian that afternoon.

Mike remembers telling Robin, "I think God is going to do something powerful tomorrow in your case."

Mike continues:

The next day when we got to court, the judge brought us into chambers and said, "Mr. Farris I read your brief." (This was somewhat unusual, because judges don't often read briefs.) And he said, "It's a good brief, and you can just take it on up to the Supreme Court of Ohio because you're going to lose today." I was astonished because I had never had a judge tell me that before we started a trial.

During the trial, the superintendent took the stand, and it was my turn for cross-examination. I asked a couple of preliminary questions. Then I asked him a stupid question—one that was objectionable, really—I didn't plan it ahead of time, it just popped into my head, "Did you get any legal advice before you denied this family the right to homeschool?"

When the prosecutor didn't object to the question, the superintendent answered, "Well, I didn't get any legal advice. I didn't talk to any lawyers, but I talked to some government officials."


"Like the judge for one."

I said, "You talked to this judge about this case before it was ever filed in court?"

He said, "Yeah!"

The judge brought us back into chambers and ruled that Robin Diegel had not been given an opportunity for a hearing before the superintendent, and granted HSLDA's motion for dismissal.

Obstacle removed: Prejudice and inequity.

The Triple E case: Mandatory parent testing

In June of 1988, the South Carolina General Assembly implemented a new homeschooling law, which included a requirement for teaching parents without college diplomas to take and pass the Education Entrance Examination (EEE—sometimes called the Triple E). The Triple E is a state-designed test that must be passed by college students desiring to become certified teachers.

On May 24, 1989, Mike Farris filed a class-action suit in state court to suspend the Educational Entrance Exam (EEE) requirement for homeschool parents. HSLDA contended that the examination was improperly validated and the requirement was an unconstitutional infringement upon the rights of parents to direct the education of their children.

Mike explains the significance of the Triple E Case:

On December 9, 1991, the South Carolina State Supreme Court unanimously ruled in favor of homeschoolers. The effect of this ruling was to knock down the idea that states could require testing of homeschooling parents. There were rumblings about this all over the country at that time.

Just like a federal district court (in the Jeffery case), a state supreme court decision is not binding on places outside its physical jurisdiction, but both are considered persuasive precedent. In particular, the South Carolina Supreme Court Case taught educational officials that they would have to validate tests specifically for homeschoolers to be able to use them. The cost of validating a test with the homeschooling population proved to be so enormous that it blew away the chance that other states would try this. They knew if Jim Popam of IOX couldn't adequately validate a test for something more than $100,000, that proper test validation would cost about a half-million to a million dollars.

The somewhat technical sounding defense was this: Homeschooling is different than public schooling. The mechanism that they use to test a teacher for classroom management in a group setting is completely different than what would be necessary to be a successful homeschooler.

Obstacle removed: The notion that states could require testing of homeschooling parents.

The Calabretta case: Unwarranted social worker searches

On February 24, 1995, in California, HSLDA filed a civil rights lawsuit on behalf of the Calabretta family against a social worker and police officer. On November 10, 1994, these officials, investigating anonymous child abuse allegations, forced entry into the family's home, interrogated a 12-year-old daughter, and strip searched a 3 year old, violating their Fourth Amendment rights against unreasonable searches and seizures. The allegations were found to be false.

In 1995, HSLDA filed a civil rights lawsuit on behalf of the Calabretta family (pictured here in 1999) because their 4th Amendment rights had been violated by a social worker and police officer investigating a false child abuse allegation.
According to Mike,

The Calabretta case was the first child abuse investigation case that HSLDA did. We won the case at the court of appeals level, just on the briefs; we didn't even have a chance to make an oral argument. The court ruled that child abuse investigations were subject to 4th Amendment requirements. An official has to have exigent circumstances or a court order to enter a home unless there is consent to enter. That ruling was a great victory for parents. We had had several lower court (trial court) decisions that concurred with the ruling. The Calabretta case in the Ninth Circuit put that principle into big black letters in a very important decision that is one step below the U.S. Supreme Court, and controls the western United States.

Obstacle removed: Child abuse investigators are subject to 4th Amendment protections.

Litigation often has a purpose beyond the effect of a judge's ruling. In many instances, litigation has prepared the way for positive homeschooling legislation to be passed.

In many states, the constant litigation initiated by HSLDA convinced state officials that passing positive homeschooling legislation would be a welcome relief.

Mike explains:

It was clear that the litigation—just our willingness to stay and fight for freedom—was effecting positive change. In court, sometimes we would win, and sometimes we would lose. In North Dakota, for example, we lost and lost and lost. Once in a while we'd get a victory, but we just kept losing and losing and losing. People kept homeschooling, however. And the officials knew we weren't going to go away. This was the reason they eventually changed the law in North Dakota. But for the persistence to fight in the courts, we couldn't have passed the legislation. And, but for the legislation, we'd still be fighting in the courts in North Dakota. It's a one-two punch.

Go through, go through the gates! Clear the way for the people. Build up, build up the highway! Remove the stones. Lift up a standard over the peoples. (Isaiah 62:10)

HSLDA's litigation team includes Jim Mason, homeschooling father of seven, who came on board in August 2001. Darren Jones joined the team in December 2001—although he first came to HSLDA as a legal assistant in 1996, and then after passing the bar in 2000, served as a contact attorney. Darren himself was homeschooled, as was his wife Sara. They have been blessed with two children and plan to homeschool all the children that God sees fit to give them.

The HSLDA litigation team stays constantly busy working on the following types of cases:

>>problems created by the federal Individuals with Disabilities Education Act;
>>discrimination against homeschoolers concerning the use of county community centers;
>>discrimination against homeschool families concerning eligibility for federal retirement funds, Social Security benefits, and welfare payments;
>>daytime curfew laws; and
>>problems with social workers.

In addition, the litigation attorneys handle what Mike Farris refers to as "mop-up" cases.

Some of the things we've already established in general principle, some school superintendents or some social workers refuse to acknowledge or don't understand. They just don't get it. And so we have to make sure to continue that they get it and follow the law.

The goal of all the work at HSLDA is to prepare the way and remove the obstacles for homeschooling parents, enabling their children to enter the gates of the land and engage the culture for Christ. On the occasion of HSLDA's 20th anniversary, Mike Farris summed up this vision:

The victories that we've obtained so far are the foundational victories. But the culmination in the next stage of those victories is God blessing us with what we really want, and that is children who rise up and lead this country aright—just as the Founding Fathers did, these many years ago.