The Home School Court Report
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July / August 2005

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HSLDA fights intrusive special education evaluation

Case: D Family v. Livonia Area School District
Filed: 3/24/05
When Home School Legal Defense Association members Mark and Kathy Durham* decided to homeschool their children, they knew that neither set of grandparents approved, but they didn't expect the grandparents to complain to the local superintendent of public schools. The superintendent then made a report of alleged educational neglect to the local child protective services department, which investigated and determined the charge to be unfounded.

That should have ended the matter. But because the grandparents' letter alleged that one of the children had special needs, the Livonia Area School District initiated a due process hearing to compel the parents to submit their son to public school officials for a special needs evaluation.

Under the Individuals with Disabilities Education Act (IDEA), Congress provides federal money to school districts that agree to provide a "free appropriate public education" to all students who desire one. This means that to be eligible for the federal funds, a school district must make special education services available to any special needs child who attends a public school within the district.

IDEA also requires school districts to provide some special education services to students who attend private school (this includes homeschooled students in states where homeschools operate or are considered private schools). What some school districts do not understand is that, according to federal law, parents who choose to privately educate their child cannot be forced to accept public special education services under IDEA.

It was based on this misunderstanding that the Livonia Area School District tried to compel the Durhams to submit their son for a special needs evaluation. The district claimed that under IDEA, parents are required to submit their child for such an evaluation anytime the district receives information suggesting that the child might have special needs—even if the parents have no desire whatsoever to accept special education services from the public school.

HSLDA immediately filed a motion to dismiss on behalf of the family, arguing both that the Durhams' religious convictions prevented them from accepting any public school services for their son, and that IDEA does not require school districts to evaluate a child whose parents choose to decline such services. Evaluating the Durhams' son would be useless.

During the April 25 oral argument on the motion to dismiss, the attorney for the school district was forced to recognize that the Durhams could not be required to accept any public special education services. However, he argued that forcing the Durhams to submit their child to a comprehensive special education evaluation was no burden on them at all, but would actually benefit them by providing them with useful information.

Pointing out that the Durhams had already obtained an evaluation from a private source, and thus had all the information they needed to address their child's educational needs, HSLDA Litigation Counsel James R. Mason III responded, "The Durhams know as a matter of religious principle that they would never willingly accept public special education services under any circumstances. No amount of information will change their religious conviction."

The issue in this administrative hearing is nearly identical to that of Fitzgerald v. Camdenton R-III School District et al., an HSLDA case in Missouri currently on appeal to the United States Court of Appeals for the Eighth Circuit.

On May 12, 2005, the independent hearing officer ruled against the Durhams, refusing to even address the constitutional issues that HSLDA raised in our motion to dismiss. After the final decision is issued, HSLDA plans to appeal on the Durhams' behalf.

* Name changed to protect family's privacy.

Owens case has silver lining

Case: Owens v. State Board of Regents
Filed: 10/1/03
In October 2003, HSLDA went to court on behalf of college student Paul Owens, who had been dematriculated from Monroe Community College because of a New York Board of Regents directive stating that homeschoolers had to have a GED to be admitted to New York public colleges. The suit was filed in conjunction with a cooperative effort by HSLDA and NYS Loving Education at Home to persuade the board of regents to change its rule.

Oral arguments were held in Rochester on January 27, 2005, and the judge handed down his decision on April 18, 2005, denying Owens the requested damages.

Despite the fact that the request for damages was denied, the lawsuit placed significant pressure on the board of regents to end its discrimination against homeschoolers. In conjunction with the passage of SB 6094 in the New York Senate, the lawsuit convinced the board of regents to change the rule in its September 2004 meeting, nullifying the lawsuit's discriminatory issues and leaving only the request for damages to be decided upon.

The changes that came as a result of the Owens case will have a positive, far-reaching effect for all New York homeschoolers, enabling them to be treated the same as any other applicants seeking admission to community colleges or state universities in New York.


Case: In Re Petition to Compel Cooperation with Child Abuse Investigation
Filed: 3/4/04
On May 20, 2005, a three-judge panel of the Pennsylvania Superior Court unanimously ruled that a court-ordered "home visit" by investigative social workers violated the constitutional rights of HSLDA members Rob and Susan Gauthier of Thompson, Pennsylvania. (For background, see the July/August 2004 Court Report at And look for a feature story update in our next issue.)