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March / April 2004

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San Diego daytime curfew citation dismissed

Case: City of San Diego v. M
Filed: 12/16/03
On January 13, 2004, a juvenile court judge granted Home School Legal Defense Association's motion to dismiss a daytime curfew citation against the 13-year-old son of a member family in San Diego. The citation was issued on December 16, 2003, when a police officer was conducting "truancy sweeps" pursuant to San Diego's daytime curfew ordinance.

At 12:30 p.m. on December 16, the 13-year-old was riding his bicycle on his way to do some Christmas shopping. A plain-clothes police officer stopped the child and asked why he wasn't in school. The young man told the officer that he was homeschooled: his private school independent study program was on Christmas vacation from December 15 through January 2 and his mother had given him permission for his errand.

The officer brushed aside the boy's explanation and told him he had to stay off the streets anytime the public schools were in session.

The San Diego daytime curfew ordinance provides that it is unlawful for a juvenile who is subject to compulsory education to be in public between the hours of 8:30 a.m. and 1:30 p.m. on any day when "school is in session for that juvenile."

Mike Smith, president of HSLDA and the attorney assigned to represent member families in California, spoke with the officer the day after he issued the citation in an attempt to persuade him not to file the citation with the court. Smith explained that under the plain terms of the ordinance the boy was not in violation of the curfew because his school was not in session.

The officer disagreed with HSLDA's interpretation of the ordinance. "Tell it to the judge," he replied.

The citation required the boy and his parents to appear in court on January 13 to enter a plea. Under California procedure, however, a motion to dismiss a charge can be filed before entering a plea. (This is called "filing a demurrer.") HSLDA Litigation Attorney Jim Mason filed a demurrer that raised two related arguments.

First, under the San Diego ordinance, a child who is subject to compulsory attendance is only required to abide by the curfew when "school is in session for that juvenile." Because the private school independent study program in which our member was enrolled was not in session on December 16, there was no violation of the law.

Second, the officer had actually cited the boy under the wrong subsection of the ordinance, the one that applies to children enrolled in "alternative education programs." Under California law, an "alternative education program" has a precise meaning. It does not include private schools. It refers only to public schools that are created especially to deal with children who are not otherwise succeeding in the regular public school, often for disciplinary problems.

Alternative schools frequently follow schedules that are different from the regular public schools. A child attending a public alternative education program may be required to be at the school building only two or three days a week. But under the San Diego ordinance, such students are nevertheless required to abide by the curfew whenever the regular public school is in session.

Because private school independent-study programs are not "alternative education programs," the officer had cited the boy under the wrong subsection of the ordinance, one that simply didn't apply to him.

California court rules require a judge to rule on the demurrer before the entry of a plea. On January 13, 2004, before opening court, the judge called the member family into his courtroom to advise them that while he disagreed with HSLDA's argument about "alternative education programs," he agreed that because the private school was on vacation, the curfew did not apply to the 13-year-old boy. He dismissed the case immediately.

This case demonstrates the importance of having an attorney who is familiar with the issues surrounding homeschooling involved in a case from the very beginning. If this family had simply gone to court and entered a "not guilty" plea, the opportunity to file a demurrer would have been lost.

Further, the matter would have been set for trial, at which time the police officer, who was not present at the arraignment, would have appeared to testify against the family and explain his interpretation of the ordinance to the judge. It is also possible that an attorney from the city attorney's office would have been present to prosecute the case. Because HSLDA was involved from the outset, the case was dismissed before it even began.


Judge reinstates adoption subsidy

Case: In the Matter of Dawn Richardson
Filed: 08/26/02
An Indiana judge reversed his earlier ruling and held that a disabled 18-year-old who is still being homeschooled is enrolled in a "secondary" school under Indiana law, making her eligible to continue receiving adoption subsidies.

For many years, HSLDA members Mark and Linda Richardson received an adoption subsidy from St. Joseph County for their severely disabled adoptive daughter, Dawn, whom they homeschooled. In March 2003, the county division of family and children notified the Richardsons that the subsidy would be discontinued when Dawn turned 18 in May.

Due to her disabilities, Dawn had been held back in 1st and 2nd grade when she was enrolled in a parochial school, and thus was still being homeschooled at age 18. Under Indiana law, an adoption subsidy can be continued past the 18th birthday if the child is "enrolled in a secondary school." Because Dawn had not completed her secondary education, the Richardsons asked that the subsidy be continued.

However, even though homeschools are considered to be private schools under Indiana law, two county representatives told Mrs. Richardson that Dawn was ineligible for continuation of the subsidy because she was homeschooling. They insisted that if the Richardsons wished to continue receiving the subsidy, they must enroll Dawn in public school. On April 15, the court ordered the subsidy discontinued.

HSLDA immediately petitioned the court to continue the subsidy, arguing that it would be error to interpret "enrollment in a secondary school" to mean "enrollment in a public secondary school." At a hearing on June 16, 2003, HSLDA Litigation Attorney Jim Mason argued that Dawn was enrolled in a secondary school as a matter of law and was therefore eligible for the subsidy.

"We represented the Richardsons in this case because the legal status of home education was being challenged in court," said Mason. "Cases like this could have adverse consequences for all homeschoolers."

The judge at first appeared to agree that Dawn's homeschool qualified as a secondary school, though he asked that evidence be submitted to show that Dawn's continued home education would benefit her. After evaluating the Richardsons' homeschool, a local special education teacher submitted an affidavit stating that Dawn was receiving an excellent education and was making progress toward being able to work outside the home. On receipt of the teacher's evaluation, the judge extended the subsidy for six months, scheduling a status hearing for December to reevaluate Dawn's progress.

But in a surprise move at the December hearing, the judge announced that he didn't think home education counted as secondary school, and again cut off the subsidy.

HSLDA filed a motion to correct error, on the basis that the judge had made an error of law by ruling that homeschooling does not amount to enrollment in a secondary school. At a February 8, 2004, hearing, Mason again explained that under Indiana law, Dawn was enrolled in a secondary school and was therefore eligible for the subsidy. The county's attorney attempted to argue that continuing the subsidy would "set a bad precedent" (for reasons she could not explain to the judge's satisfaction), but was forced to concede that homeschooling qualified as secondary school.

The judge's decision, in which he acknowledged that his previous ruling had been in error and reinstated all benefits, was a two-fold victory. Not only does the ruling allow Dawn to continue receiving her subsidy, but it also reaffirms homeschooling as a legitimate form of education that must be recognized by government programs and agencies.


HSLDA files federal suit

Case: P Family v. Social Security Administration
Filed: 08/26/02
In the May/June 2003 issue of the Home School Court Report, HSLDA reported a victory for the Near* family, whose benefits had been rescinded because the Social Security Administration would not recognize their disabled son Steve* as a "full-time student." The Near family had received Supplemental Security Income (SSI) payments on behalf of Steve for eight years, a financial supplement that enabled them to keep homeschooling him.

In October 2002, the Nears were notified that Steve's SSI benefits were being reduced. The local SSA office had ruled that homeschoolers are not full-time students and reduced Steve's benefits because of 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, an administrative law judge reinstated Steve's benefits in response to the appeal. The judge ruled that children who are being homeschooled in accordance with state law are full-time students and should not be subject to reduction of benefits because they are homeschooled.

However, the victory was overturned on August 6, 2003, when the SSA Appeals Council reviewed the case and determined that the hearing officer made an error of law by recognizing homeschooling as full-time school.

The appeals council decision discriminates against homeschoolers by refusing to recognize them as "full-time students" under federal law. Unfortunately, there is no administrative board to appeal to above the appeals council. For this reason, HSLDA filed an action in federal court on October 9, 2003, arguing that the appeals council had misconstrued the Social Security law and that homeschoolers who are in compliance with state law should be considered "full-time students."

*Name changed to protect family's privacy.