The Home School Court Report
Vol. XXV
No. 2
Cover
March/April
2009

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IOWA

Department of Veterans Affairs Case Finally Closed

Case: Winkelman v. Department of Veterans Affairs
Filed: May 2004

by Nicholas Bolzman

After years of going back and forth with the United States Department of Veterans Affairs (VA), we finally report a victory in both the Winkelman case and the broader issue of benefits for dependents.

Mr. Winkelman is a retired veteran who was receiving disability benefits for himself and each of his dependents. Dependents are defined by the VA as children who are either under 18 years of age, or are enrolled in an “educational institution.” However, at the time, the VA’s policy specifically excluded homeschoolers from receiving benefits. When Mr. Winkelman’s son turned 18, the VA refused to acknowledge him as a dependent, even though he was still being homeschooled and had not yet graduated from high school.

Home School Legal Defense Association appealed this decision on behalf of the Winkelmans, and in a review hearing, HSLDA Litigation Attorney James Mason argued that Mr. Winkelman’s homeschool program was an “educational institution.” Shortly after the Winkelmans’ hearing, the policy excluding homeschoolers was overruled in the Theiss decision (see the May/June 2006 and July/August 2007 issues of the Court Report).

The overruling of this policy did not convince the VA panel hearing the Winkelmans’ appeal, and, on September 9, 2005, it ruled that benefits could not be extended, since the Winkelmans’ homeschool program was not “accredited,” a requirement invented by the board with no basis in statute or policy. HSLDA appealed this decision in 2006, and the Board of Veterans’ Appeals again changed its terminology, concluding that the Winkelmans’ program needed to be “approved.” The only problem was, the VA had no process for determining approval of secondary schools, regardless of whether they were private schools, public schools, or homeschools.

Finally, after the VA implemented a new policy that included homeschoolers, the Board of Veterans’ Appeals reinstated the Winkelmans’ benefits on November 18, 2008. This, along with the successful resolution of the Theiss case, concludes almost a decade of arguing with the Department of Veterans Affairs about the inclusion of homeschoolers in its benefits policies. Because of these cases and the policy changes resulting from them, we are happy to report that homeschoolers should now be treated like any other students.

OHIO

State Bureaucrats Wrongfully Deny Benefits

Case: F Family v. Ashland County Department of Job and Family Services
Filed: Sept. 2008

by Darren A. Jones

In August 2008, the Ashland County Department of Job and Family Services notified an HSLDA member that it was reducing the state childcare benefits she was receiving from 40 hours per week to four hours per week because her homeschooled children were not “in school.”

Mrs. Frank (name changed to protect privacy) works during the day to support herself and homeschools her two children in the evenings. She had been receiving state childcare benefits to assist her in paying for the babysitter who watched her children while she worked. As a result of this reduction of benefits, Mrs. Frank has had to scramble to make other temporary arrangements for her children while she is at work.

The childcare benefits are designed to assist needy families in caring for their children outside of school hours. The Department of Job and Family Services had decided that “school hours” meant “public school hours,” even though there is no law or regulation that defines school hours in Ohio. Homeschoolers need only accomplish 900 hours of instruction to be in compliance with the compulsory attendance law.

In a telephone hearing on November 26, 2008, HSLDA Staff Attorney Darren Jones argued that Mrs. Frank was fully eligible to receive the 40 hours of benefits per week, since they did not include hours during which homeschooling was taking place. He pointed out that five years ago, Ashland County had tried implementing the same reduction for another family, and the hearing officer had determined that “school hours” were undefined and therefore should be counted as the hours the homeschool program was in session.

Unfortunately, the hearing officer in this case did not agree and issued a decision on January 7, 2009, upholding the agency’s decision to reduce childcare benefits. HSLDA is appealing on behalf of our member family.

PENNSYLVANIA

Religious Freedom Protection Act Returns to State Court

Case: Combs v. Homer-Center School District et al.
Filed: Feb. 2004–05

by Nicholas Bolzman

The Pennsylvania free exercise case is entering into round two of litigation, as we return to state court.

Since 2005, we have been representing six families in their challenge to the Pennsylvania homeschool statute on the grounds that it violates their religious convictions as protected by the First Amendment and the Pennsylvania Religious Freedom Protection Act. These cases have been much harder to win since the U.S. Supreme Court’s 1990 decision in Employment Division v. Smith, in which the Court ruled that infringements on free exercise of religion were permissible as long as they applied to everyone equally. As previously reported, both the U.S. District Court and the Third Circuit Court of Appeals ruled against us on the federal questions. The Third Circuit remanded the questions regarding the RFPA back to state court.

We subsequently filed a petition with the United States Supreme Court to review the federal issues in this case, but the court declined to accept it. Now we are heading back to state court to settle the questions surrounding the RFPA and the Pennsylvania Constitution that the Third Circuit remanded.

Pending Cases

AL B Family v. Social Security Administration

AL D Family v. Social Security Administration

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

CA M Family v. County of San Bernardino

FL R Family v. Dept. of Veteran Affairs

KS In re EG

KS T Family v. Social Security Administration

MS C Family v. Department of Veterans Affairs

NY In re: RH & MH

TN C Family v. Dept. of Children’s Services

WA H 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
Prevish v. Norwin School District
Weber v. Dubois Area School District


About the author

Nicholas Bolzman is a litigation assistant at HSLDA.