There is a widespread feeling among homeschoolers that some local superintendents prosecute homeschooling families in order to get the financial reward of additional per-pupil funding the state would give their school district if the homeschooled child was forced back into the public school (it is estimated that a school district receives approximately $2,000 in tax funding for each individual child enrolled in its public school system). One of the very first cases Michael Farris handled for an HSLDA member in 1983 was started for this very reason. The truant officer, who was somewhat sympathetic to the parents, told Farris the superintendent instructed him to get every homeschooler back into the public schools because they needed the money from the state for their district.
Seventeen states have specific statutes which require a homeschooling family to get permission from the local superintendent or school board in order to teach their children at home. A number of other states require local school permission in some situations or their practice is to require permission even though the law does not specifically mandate such permission.
The average American citizen has little trouble understanding the inherent unfairness of giving the government competitor, who has a financial stake in the outcome, the power to decide if you will use his services or whether you may choose a competing form of education. The current situation would be analogous to a situation where the government owned IBM. In order to build computers, you would have to get IBM’s permission to do so, and IBM would not allow you to build a computer unless you used programmers who were certified by IBM and you built your internal workings according to IBM specifications. Computers would still fill large rooms, rather than be small enough to fit into briefcases, if the government owned IBM and had control over the right of competitors to produce an alternative product.
This situation is not merely unfair. It is clear that it is inherently unconstitutional. To allow a local school official, who has a financial stake in the outcome, to decide whether or not a family will be allowed to homeschool is a violation of the Fourteenth Amendment’s guarantee of due process of law.
There can be no argument that a local school official who makes a decision with regard to the right of the family to teach their child at home must make his decision in a way which would satisfy the standards of due process of law. Due process standards require that, at a minimum, the procedure used is fair, that there is notice, an opportunity to be heard, and a neutral decision maker.
It is the requirement of a neutral decision maker which is violated by the compulsory attendance laws which give local school officials the power to decide whether or not a family may homeschool.
In 1927, the United States Supreme Court decided a case setting forth the requirements of a financially neutral decision maker for a due process decision. In this case, Turney v. Ohio, 273 U.S. 510 (1927), the Supreme Court held that a mayor who was given power to judge certain cases and who had a financial stake in the outcome of decisions, both personally, and on behalf of his municipality, was not a neutral decision maker as required by the Constitution.
The Supreme Court said: “With his interest as mayor in the financial condition of the village and his responsibility therefore, might not a defendant, with reason, say that he feared he could not get a fair trial or a fair sentence from one who would have so strong a motive to help his village by conviction and a heavy fine?” 273 U.S. at 533.
When the principle of this case is properly applied, no superintendent should ever be allowed to decide whether an alternative form of education, like homeschooling, will be permitted to be practiced in his community. It does not even matter that the financial gain is for the superintendent’s school rather than his personal pocketbook. The superintendent cannot satisfy the requirement of a neutral decision maker as long as he has a financial stake in the outcome of the decision.
We are presenting this argument in all of our homeschooling cases where the issue of local school official approval is required. The case which presents this argument at the highest level at the current time is the Schmidt case, which is pending before the Ohio Supreme Court.
If we win the Schmidt case on this point, we will establish a powerful precedent which will help us ultimately establish constitutional decision making for homeschoolers. The first step will be to take approval power away from those who have a financial stake in the outcome to decide in favor of public schools.