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Vol. XXIII
No. 3
Cover
May/June
2007

In This Issue

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CALIFORNIA

Fighting Discrimination Against Homeschooling

Case: E.T. v. California Dept. of Social Services
Filed: 12-1-06

Home School Legal Defense Association member and single mother Essie Tabbott (name changed to protect family’s privacy) has been receiving welfare benefits from the County of Sacramento so that she can continue homeschooling her daughter, who is in high school. Although Mrs. Tabbott has homeschooled for many years and has already graduated one daughter, the county’s misunderstanding of California’s private education law has put her assistance in jeopardy.

Until 2007, Mrs. Tabbott never had any trouble with the Sacramento County Department of Health and Human Services. This year, however, the county has adopted a policy that appears to be based on former State Superintendent of Education Delaine Eastin’s view that homeschooling is illegal unless conducted by state-certified teachers. Consequently, Sacramento cut off certain benefits to Mrs. Tabbott because she is homeschooling her daughter.

...
THE COURT REITERATED
THE EIGHTH CIRCUIT’S
DECISION IN
FITZGERALD...WHICH
STATED THAT SUCH A
COMPELLED EVALUATION
‘WOULD HAVE NO
PURPOSE AND BE
POINTLESS’
...

Parents in California usually homeschool under the private school law, either joining an independent study program of a private school or starting their own private school. Mrs. Tabbott has always filed as her own private school. She is in full compliance with California’s private school law, which calls for a yearly affidavit and attendance records, among other minimal requirements.

The Sacramento County Department of Health and Human Services has taken the position that homeschooling through a private school in this manner is illegal. They are now trying to force Mrs. Tabbott to enroll her daughter in the public school’s independent study program, which would make her daughter a public school student. Having experienced numerous problems with the public school district in past years, Mrs. Tabbott considers enrolling her daughter in public school an unacceptable option.

HSLDA Deputy General Counsel James Mason defended Mrs. Tabbott’s right to private home education on March 5, 2007 before a state hearing officer. As this article goes to press, we are still awaiting a ruling from the hearing officer.

—James R. Mason III

NEW YORK

Long-awaited Victory in Special Needs Case

Case: D Family v. Livonia Central School District
Filed: 10-8-04

On February 28, 2007, the Western Federal District Court of New York vindicated HSLDA’s long-held position that public schools may not force homeschooling parents to submit their children to special education testing.

Mr. and Mrs. Durham (name changed to protect family’s privacy) homeschooled their special needs son and had him privately evaluated at their own expense, choosing to waive any right to a “free appropriate public education” for their son. In September 2004, however, the Durhams’ school district insisted that it must evaluate the child, whether Mr. and Mrs. Durham consented to it or not, and the district initiated a due process hearing under the Individuals with Disabilities Education Act (IDEA).

At the hearing, HSLDA argued to the local hearing officer that the parents should not have to submit to an unwanted, unnecessary evaluation for services which everyone agreed that the family would never accept, but in May 2005, the hearing officer ruled for the school district. An appeal to the State Review Office followed, with the same result a year later.

On June 12, 2006, HSLDA filed an appeal in federal court. Eight months later, the court issued its decision, fully agreeing that the parents could not be forced into an evaluation.

The judge’s decision stated, “I find that the IDEA does not permit a school district to compel the evaluation of a student . . . where the student’s parent has objected to such an evaluation and has refused to accept publicly-funded special-education services.” The court reiterated the Eighth Circuit’s decision in Fitzgerald, the federal appellate court case HSLDA won in 2006, which stated that such a compelled evaluation “would have no purpose” and be “pointless.”

“It is ludicrous under a plain understanding of the IDEA as it applies to homeschooled or privately schooled students,” says HSLDA Deputy General Counsel James Mason, “that any school district should have the ability to force parents to consent to an evaluation that is not even necessary under the IDEA.”

“This case drives the final nail in the coffin of the argument that public schools have the right to force this kind of evaluation over parents’ objections,” he continued. “With these two federal cases and the new federal regulations, every public school is on notice that these forced evaluations are illegal.”

—Darren A. Jones

RHODE ISLAND

Judge Dismisses Truancy Charges

Case: North Providence School District v. G Family
Filed: 2-8-07

A simple failure in communication between two Rhode Island school districts dragged a single mother into truancy court in Rhode Island in February 2007. Had it not been for HSLDA’s intervention, the error could have resulted in a truancy conviction.

HSLDA member Cassie Garrett (name changed to protect family’s privacy) began homeschooling her son for the 2006-2007 school year in North Providence School District. The school district was somewhat slow in approving her academic program, and during the middle of the school year, Mrs. Garrett moved into the Pawtucket School District. She then, once again, submitted all of her homeschool information to the superintendent’s office in Pawtucket School District.

North Providence School District, however, was unaware that the Garretts had moved out of its jurisdiction. North Providence filed truancy charges against our member family. Because the district delivered the notice to the Garretts’ old address, HSLDA only learned of the truancy hearing the afternoon before it was to take place!

HSLDA’s Litigation Department immediately secured local counsel Lisa Waggoner to appear with Mrs. Garrett before the truancy court in North Providence. At that initial hearing, Ms. Waggoner explained to the judge that Mrs. Garrett was in full compliance with the law in Pawtucket School District. The judge asked Ms. Waggoner to appear before him one week later with a letter from Pawtucket School District stating that Mrs. Garrett was indeed in compliance with the law.

During the following week, Mrs. Garrett tried several times to obtain such a letter from Pawtucket. While school officials were willing to acknowledge verbally that she had submitted all required information, Pawtucket School District maintained that it never issues such letters of confirmation for homeschoolers. HSLDA Staff Attorneys Scott Woodruff and Darren Jones contacted the school district several times on behalf of Mrs. Garrett, but district officials steadfastly refused to put anything on paper. However, during the same week, the truancy officer for Pawtucket called the truancy officer for North Providence and explained the situation. The North Providence truancy officer agreed at that point that they should not pursue the case further.

The next week, Mrs. Garrett and her attorney were both forced to reappear in court and explain to the judge the unwillingness of Pawtucket to help them comply with his order. The judge then asked his court clerk to call Pawtucket School District, which once again confirmed that Mrs. Garrett was in full compliance with the Rhode Island home education law. The judge promptly dismissed the case.

—Darren A. Jones

Pending Cases

AL B Family v. Social Security Administration

AZ L Family v. Administration for Children, Youth and Families

CA Miss H. v. Los Angeles Unified School District

IA Winkelman v. Dept. of Veterans Affairs

IL H Family v. Social Security Administration

IL In Re: F.H.

IL In Re: H Children

KS T Family v. Social Security Administration

MA Amherst Public Schools v. S Family

MS C Family v. Dept. of Veterans Affairs

PA C Family v. Social Security Administration

Pennsylvania RFPA Cases

Combs v. Homer-Center School District • Hankin v. Bristol Township School District • Nelson v. Titusville Area School District • Newborn v. Franklin Regional School District • Penn-Trafford School District v. B Family • Prevish v. Norwin School District • Weber v. Dubois Area School District