The Home School Court Report
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November / December 2005

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Conflict over constitutional rights

When the Nebraska Senate in 2004 enacted Legislative Bill 686, which changed the compulsory attendance age, the state department of education made some small changes to the homeschool regulations. Families who obtained copies of these amended regulations read through them carefully, and many were surprised to find that Nebraska law refers to "school visits." This requirement has actually been part of the existing homeschool regulations for many years.

The school visit requirement, as applied to private homes, is unconstitutional. It cannot be enforced against parents who object to unreasonable searches by the government unless there is probable cause to issue a warrant. The department of education has not tried to demand any home visits for years.

A number of families took steps to assert their constitutionally protected privacy in their own homes. Some crossed off the paragraph on Form B (the Parent Representative Form) that commits them to "[m]aking arrangements with the exempt school operators in the event that a school visit and/or testing is required by the Commissioner." Others left that language intact, but attached an addendum clarifying that their responsibility for making such arrangements in no way waived their constitutionally protected right to the privacy of their home.

To our surprise, each family that tried to assert their constitutional rights received a rejection letter from the Nebraska Department of Education. Home School Legal Defense Association promptly contacted the department to explain that families have every right to assert their constitutionally protected privacy when they file their annual paperwork. Parents do not have to waive their right to privacy in order to exercise their right to direct the education of their own children.

However, the department wrote back on August 12, 2005, to say it would not accept an altered Form B. The letter went on to state, "As to any written attachment to the forms, we would decide when received if they would be acceptable."

It is HSLDA's opinion that the department lacks the authority to reject a homeschool notice of intent simply because a parent clearly articulates an assertion of constitutional right. We stand behind the freedom-loving families who have stood up for their constitutional rights, and will defend them to the Supreme Court if needed.

— by Scott W. Somerville