The Home School Court Report
VOLUME XX, NUMBER 1
- disclaimer -
January / February 2004


FEATURES
Can Judicial Tyranny Be Stopped?

DEPARTMENTS
Freedom watch
From the heart

The difference made by "little things"

Impact of the Widows Curriculum Scholarship Fund

From the director
Across the states
Active cases
Members only

New email confirmation

Support homeschooling when you shop online
About campus

PHC in the news
President's page

ET AL.

HSLDA social services contact policy/A plethora of forms

HSLDA legal inquiries

Prayer & Praise


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  LITIGATION SUMMARIES  

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ACTIVE CASES

Maryland

Apeal for rehearing denied

Case: Goulart and Travers v. Calvert County
Filed: 01/31/00
Calvert County refused to permit two homeschooling moms to use local community centers for a fiber arts class and a geography club on the grounds of its explicit policy: "[H]ome schoolers may not use community centers." However, these centers are generally available to all citizens of the community for similar activities, including knitting and Russian language classes. The county maintained that, because homeschoolers can count the classes toward fulfilling part of their educational requirements under Maryland law, it is justified in banning homeschoolers' use of the centers.

On January 31, 2000, Home School Legal Defense Association filed a lawsuit, asking the United States District Court for Maryland to declare the policy a violation of the First Amendment guarantee of free speech and the Fourteenth Amendment guarantee of equal protection of the laws. When Calvert County opened its facility to the general use of the public for conducting similar classes, it could not constitutionally deny access to homeschoolers on the grounds that some of the children would get educational credit for them.

The United States District Court for Maryland held that the community center had not violated the homeschoolers' rights, reasoning that teaching the young is not speech protected by the First Amendment. It also held that the community center could legally exclude homeschoolers without violating the Fourteenth Amendment.

HSLDA then appealed to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. HSLDA Board Chairman and General Counsel Michael P. Farris argued the case on May 9, 2003. A three-judge panel of the Fourth Circuit overturned the district court, saying that teaching the young is speech protected by the First Amendment. However, the panel held that the community center had not violated the homeschoolers' rights by excluding them. It reasoned that there is a constitutionally significant difference between "formal" educational classes and classes that are held for purely recreational purposes.

HSLDA filed a motion for rehearing by the entire 12-member Court of Appeals for the Fourth Circuit on the grounds that the panel had misapplied the major Fourth Circuit case governing this area of the law. The petition for rehearing en banc was denied. HSLDA is now considering filing an appeal with the United States Supreme Court.

Vermont

Family enabled to homeschool child

Case: Vermont Dept. of Education v. G Family
Filed: 09/03/03
When the Gaults* began homeschooling in 2002, they utilized some services from the local public school in order to accommodate their son Jacob's* special needs. The public school evaluated and diagnosed Jacob with autism. When Mr. and Mrs. Gault submitted Jacob's homeschool enrollment notice for the next school year, the Vermont Department of Education (VTDOE) sent them a letter calling for a hearing and stating that it was unclear what adaptations or special services the family was going to use during the year to address Jacob's autism. Under state law, homeschoolers are required to provide VTDOE with this information. The Gaults called HSLDA for assistance.

Although it appeared at first that one of the public school personnel simply objected to the Gaults' decision to homeschool an autistic child, HSLDA persuaded VTDOE to dismiss the hearing because the techniques and adaptations that the Gaults would be using in their program would be more than adequate to meet Jacob's needs.

* Name changed to protect family's privacy.

Wisconsin

HSLDA takes stand for veterans benefits

Case: In the Appeal of Theiss
Filed: 10/13/99
HSLDA represented this member family father on his claim for veterans benefits for a homeschooled child over the age of 18 years. At the time of the original appeal (September 15, 1999), federal regulations provided for continued benefits as long as the child was a member of the veteran's household and pursuing a course of instruction at an approved educational institution.

HSLDA argued that Wisconsin had approved Mr. Theiss's homeschool program for many years, including the present one, and that the child should be regarded as attending an approved educational institution. To decide otherwise would violate the constitutional guarantee of equal protection and the right of parents to direct the education of their children.

The Board of Veterans' Appeals affirmed the local decision that denied benefits to Mr. Theiss's child. The appeals board based its ruling on an official opinion issued in 1998 and on a regulation based on that opinion.

First, the appeals board agreed with a Veterans Affairs General Counsel opinion of May 1998 that concluded that a homeschool program is not an "educational institution," so a person enrolled in a homeschool program is not a "child" for veterans benefits purposes.

Second, the board pointed to the fact that federal regulations have been amended to incorporate this opinion. Now the regulations specifically state,

For the purposes of this section and section 3.667, the term "educational institution" means a permanent organization that offers courses of instruction to a group of students who meet its enrollment criteria. The term includes schools, colleges, academies, seminaries, technical institutes, and universities, but does not include home-school programs.

HSLDA filed an appeal on May 25, 2001, to the United States Court of Veterans' Appeals. Oral arguments before the three-judge panel were held September 8, 2003.

"The court seemed genuinely concerned about denying benefits to a combat-disabled veteran based on a narrow dictionary definition of 'institution,'" commented HSLDA Attorney Jim Mason, who argued the appeal. "The Supreme Court has mandated that veterans statutes are to be liberally interpreted to allow benefits."

"Homeschooling is an innovative and highly successful educational institution and should be recognized as such by the Veterans Administration," he added.

Mason noted that other federal agencies, like the Social Security Administration and the Office of Personnel Management, have already publicly recognized that when parents homeschool their children in high school past their 18th birthday, benefits should be continued.

A decision from the Court of Veterans' Appeals is expected early next year.