The Home School Court Report
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November / December 2004

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New York

Board of regents recognizes homeschool diplomas

Case: Paul Owens v. Board of Regents
Filed: 10/01/03
Last fall, homeschool graduate Paul Owens was told that he would not be able to graduate from Monroe Community College (MCC) because his homeschool diploma was not considered evidence of a complete high school education. MCC's decision was the result of a directive from the New York Commissioner of Education, which changed longstanding policy by requiring that homeschool graduates obtain a General Equivalency Diploma (GED) in addition to their homeschool diploma to be admitted to a New York state college or university.

Home School Legal Defense Association filed a lawsuit on Owens' behalf against the New York Board of Regents, which is responsible for the rule that allowed the commissioner to issue his arbitrary directive.

Concurrently with the lawsuit proceedings, HSLDA helped draft Senate Bill 6094 to change the discriminatory policy. The bill was introduced in the New York Senate by Senator Joseph Robach and is presently being considered by the Higher Education Committee. Meanwhile, a grassroots effort spearheaded by HSLDA and NYS Loving Education at Home lobbied the board of regents to change the current policy.

In their September 2004 meeting, after receiving hundreds of calls and letters, the board of regents finally voted to amend the rule. Homeschool students will now be treated like other applicants to New York colleges and universities. The rule change should also enable a reasonable settlement for Owens, whose tuition costs rose when he transferred to a private college after his dematriculation from MCC.


Discriminatory policy struck down

Case: In the Appeal of George R. Theiss
Filed: Fall 1999
On July 27, 2004, the United States Court of Appeals for Veterans Claims handed down a decision in favor of a Wisconsin Home School Legal Defense Association member. Ruling that the Veterans Administration had incorrectly passed a regulation excluding homeschooled students over 18 from the definition of child, the appeals court reopened the door for such students to continue receiving veterans' benefits.

HSLDA has represented decorated Vietnam veteran George Theiss in his claim for veterans' benefits for over five years. Under his military pension, Mr. Theiss receives benefits to help care for his dependents as long as each child is a member of his household and pursuing a course of instruction at "an approved educational institution."

In March 1998, the general counsel for the Veterans Administration issued an official opinion that homeschooling did not count as an "approved educational institution." The opinion was based on the definition of institution in Webster's dictionary: "an established organization or corporation, especially of a public character." The general counsel maintained that since homeschooling is operated for only one student, it is not an educational institution. Based on the general counsel's opinion, the Department informed Mr. Theiss in 1999 that the additional benefits would be cut off when his son turned 18, even though Mr. Theiss was conducting a homeschool program in full compliance with Wisconsin law.

HSLDA appealed the decision on behalf of Mr. Theiss, arguing that the decision went against the entire legislative scheme of veterans' benefits, which the federal courts have held is "strongly and uniquely pro-claimant." Laws that govern veterans' benefits should be interpreted to grant benefits in favor of the claimant, not restrict them. The Board of Veterans' Appeals denied our petition, basing its decision on both the general counsel's opinion and on the federal regulations that had been amended in accordance with that opinion.

On September 8, 2003, HSLDA Litigation Counsel James R. Mason III argued before the Court of Appeals for Veterans Claims in the appeal of the board's decision. The Court of Appeals' subsequent ruling criticized the general counsel for his "narrow" definition of educational institution and his failure to present a "rational, comprehensive explanation" for not considering homeschooling an educational institution. In addition, the court held that the Veterans Administration should have first publicized the regulation denying homeschoolers additional benefits, allowing interested persons the opportunity to comment on it before it was passed.

On July 27, 2004, the United States Court of Appeals for Veterans' Claims remanded the case to the Board of Veterans' Appeals, which will reconsider the matter without taking into account the general counsel's opinion or the wrongly enacted, now-invalid regulation.