The Home School Court Report
No. 4

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Victory for Religious Freedom

Landmark legislation was enacted in Virginia on April 4, 2007, and went into effect on July 1, 2007, giving citizens “state of the art” protection of religious freedom.

The Religious Freedom Act (RFA) endured a long struggle on the road to becoming law. Home School Legal Defense Association worked for the RFA over the course of four legislative sessions in order to undo the harm of a 1997 U.S. Supreme Court decision which struck down the Federal Religious Freedom Act and left citizens very little protection from state interference with religious freedom.

Delegate Donald McEachin was the first legislator to introduce the Virginia RFA. This 1999 effort failed to bear fruit, however. Similar efforts in several subsequent legislatures likewise fell short.

At HSLDA’s request, Delegate Scott Lingamfelter introduced the RFA again in the 2007 legislature. HSLDA Senior Counsel Christopher Klicka provided the language for Lingamfelter’s RFA bill.

Delegate Lingamfelter obtained the crucial support of William Thro, state solicitor (state attorney general’s office). Thro and HSLDA Staff Attorney Scott Woodruff testified in support of the bill before the House Subcommittee on Civil Courts in January 2007. Despite opposition, the subcommittee voted in favor of the bill, and with phone calls and emails from homeschoolers pouring in, the full Courts of Justice Committee voted 15-4 in favor of the bill.

Homeschoolers continued to flood the capitol with phone calls as the full House of Delegates took up the bill. The House voted 67-30 in favor of the bill in time for it to cross over and be considered by the Senate.

Klicka and Thro testified before the Senate Committee for Courts of Justice in February. After an attempt by the ACLU to sabotage the bill was rebuffed, the RFA passed the committee on a 9-6 vote and it went to the full Senate. Homeschoolers again poured out phone calls and the bill passed the Senate 28-11.

Governor Tim Kaine modified the bill slightly concerning the treatment of prisoners and sent it back to the legislature. The modified bill then sailed through the House and Senate virtually unopposed, and was enacted on April 4.

Now Virginians of faith, confronted with a state law or city ordinance that conflicts with their religious beliefs, can invoke the RFA. The RFA requires that the state prove that the regulation or law in question is “essential to fulfill the state’s compelling interest” and that it is “the least restrictive means of fulfilling that compelling state interest.”

With the addition of Virginia, HSLDA has helped obtain the passage of RFAs in 15 states. We are using Pennsylvania’s Religious Freedom Protection Act to protect scores of Pennsylvania homeschoolers who are resisting that state’s restrictive homeschool law. We have also invoked the Florida RFA to avoid unnecessary portfolio reviews in that state.

George Mason had a vision for religious freedom when he penned the landmark Virginia Statute for Religious Freedom in 1786. (Read the statute at whatwedo/k12/bor/vsrftext.htm#trans.) With the passage of Virginia’s RFA 221 years later, a new landmark has been established-one that we hope will protect us for many generations.

We are thankful to God for His mercy in allowing the Religious Freedom Act to become law. The text of the Virginia RFA is available at

— by Christopher J. Klicka

Expanded assessment options

As a result of legislation drafted and backed by HSLDA, Home Educators Association of Virginia, and the Organization of Virginia Homeschoolers, year-end assessment options have increased for homeschoolers in the Old Dominion. These changes went into effect July 1, 2006.

Assessment Option 1 (AO1) now allows homeschooling parents to use any nationally normed standardized achievement test. Prior approval from the school district is no longer needed. The district has no power over the manner in which the test is administered, so long as it is done in compliance with the protocols of the test publisher. Under AO1, a composite score of 23rd percentile (4th stanine) or higher is automatically a passing score.

Assessment Option 2 (AO2) has been improved by removing the power of a superintendent to use unfettered “judgment.” Now he must be objective and consistent: he must make a “determination.” Many different types of assessments can be submitted under AO2. The key is whether the assessment objectively shows an “adequate level of educational growth and progress.” For example, any of the following might be used to demonstrate adequate progress under AO2 under appropriate circumstances:

  • A test score from a test that is not nationally normed or standardized.

  • A nationally normed standardized achievement test with a score below the 23rd percentile (but which shows adequate progress since the previous year).

  • A portfolio accompanied by an assessment of the portfolio that documents adequate progress.

  • Report cards from certain schools or organizations.

  • A written assessment prepared by someone with expertise in the field (certified teacher, person with a graduate degree in certain areas, etc.).

Virginia members should call HSLDA with any questions about whether such “appropriate circumstances” are present in their situation. Any type of assessment that the school system accepted previously should still be acceptable. The point of the change in the law is to increase liberty, not reduce it.

Although we are now approaching the first full year under the changes, some school districts are not up to speed. HSLDA has seen many examples of erroneous information being distributed by school districts to homeschoolers. Although we have attempted to correct this misinformation by letter, members should be aware that their school district may give incorrect advice. Families who filed a notice of intent must submit their assessment by August 1. As before, it is not necessary to submit a year-end assessment for children who were not 6 years old or older on September 30.

Fewer than half the states require year-end assessments. This is well justified: Dr. Lawrence M. Rudner has reported that 8th grade homeschooled students score, on average, higher than 12th grade public school students on standardized tests. Until Virginia joins the majority and eliminates year-end assessments, HSLDA will continue to work to reduce the burden on families and provide protection against officials who step out of bounds.

Please note: Religiously exempt families do not submit year-end assessments and are thus not affected by these changes.

District reverses “denial” of homeschooling Shortly after Tammy Ross filed her notice of intent, a Portsmouth school official sent back a terse letter saying that her application for homeschooling had been denied, and that she should file another notice of intent. No explanation for the abrupt denial was offered. When this came to the attention of HSLDA Staff Attorney Scott Woodruff, he called Tammy. He learned that her notice of intent satisfied all the requirements of state law. Tammy knew of no reason for Portsmouth to curtly deny her “application.” Woodruff immediately called the official, who explained that her only complaint was that Tammy had not listed her children's dates of birth and grade levels. When Woodruff explained that the law does not mandate that parents supply this information, she readily agreed and acknowledged that parents could treat it as optional. Woodruff followed up with a letter to the official confirming that Tammy had chosen to not release this information, and requesting that the official edit her letter, if she planned to use it again, to eliminate any reference to “approving” homeschooling. In Virginia, homeschooling families are not required to seek approval, nor are officials empowered to grant it.

— by Scott A. Woodruff