The Home School Court Report
VOLUME III, NUMBER II
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Cover
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Cover Stories

The Front Lines

Homeschoolers and the Legislature

Contact Countdown

Conventional Schools Better than Homeschools? Statistics Prove Otherwise

California Report

North Dakota Jury Convicts Homeschoolers Upon “Mystery Evidence”

Ohio’s High Court Denies Appeal

Certification Challenged

Texas Triumphs

Arrival of New Attorney

South Carolina Improves

Across the states

Approval States Cause Trouble

A Personal Note to Fathers
C O V E R   S T O R Y

Ohio’s High Court Denies Appeal

It appears that Ohio will continue to be a difficult state for homeschoolers due to the vagueness of the laws in spite of the recent decision of the Schmidt case by the Ohio Supreme Court.

The Ohio compulsory attendance law states that a local or county superintendent may excuse a child if he is being “instructed at home by a person qualified to teach the branches on which instruction is required.”

This process which gives each superintendent the discretion to define “qualified” has caused countless conflicts in the state because Ohio’s compulsory attendance law provides no guidelines for the local superintendents to follow. As a result, each of Ohio’s 615 superintendents develops his own personal requirements with which homeschoolers in his district must comply. This discretionary power of the superintendent is often exercised arbitrarily by the superintendent to the detriment of homeschoolers’ constitutional rights.

For the last two years, HSLDA has been challenging this statute in the Schmidt case. The Schmidts, while homeschooling their children under the auspices of a Christian satellite program, were charged with violating the compulsory attendance law in October 1984. The family did not seek approval because it would violate their religious convictions and they thought they were already in compliance with the law. The state board of education had earlier given the Christian satellite school permission to “approve” homeschool programs and that Christian school had “approved” the Schmidts’ program. The family even had several conferences with the local superintendent, but he decided to bring charges anyway.

The Schmidts’ trial was before the Court of Common Pleas, Juvenile Division of Columbiana County. The court ignored the constitutional arguments raised by attorney Steve Leiby (retained by HSLDA) of Cuyahoga Falls and found the Schmidts guilty. However, the record of the trial (testimony, evidence, cross examination, etc.) was destroyed by the court’s defective recording equipment. Attorney Farris appealed the decision raising several constitutional arguments, including violation of due process since the record of the trial was destroyed. Without a record, it was HSLDA’s word against the prosecutor’s word as to what facts actually brought this situation to court.

The court of appeals, relying on the prosecutor’s version of the facts, affirmed the lower court’s decision finding the Schmidts guilty. HSLDA then appealed to the Ohio Supreme Court for discretionary review. The Ohio Supreme Court decided to hear the case and Michael Farris, HSLDA president, argued before the court.

On March 25, 1987, the Ohio Supreme Court decided the Ohio v. Schmidt case (No. 86-263, Ohio Supreme Court, March 25, 1987), upholding the conviction of the Schmidt family. The court held that because the Schmidt family did not exhaust their administrative remedies (i.e., they did not request approval, be denied by the superintendent, and appeal to the juvenile court), the court would not rule on all of HSLDA’s constitutional arguments. Unfortunately, the court relied on the prosecutor's version of the facts which asserted that the family did not meet with the superintendent and follow the administrative procedure but blatantly ignored the law. The facts presented at trial, on the contrary, showed that the Schmidts had, in fact, met with the superintendent several times and the superintendent made clear to them that they must be certified. Instead of denying them and following the administrative procedure, he merely brought charges. Of course, since the record of the trial was destroyed, the court could not compare the prosecutor’s version with the actual record.

Since the court thought the Schmidts refused to follow the administrative process and exhaust the administrative process, the court refused to address many of HSLDA’s arguments. For instance, the court would not rule on HSLDA’s challenge that Ohio’s compulsory attendance law is void for vagueness because it allows each superintendent to create and enforce arbitrary requirements for homeschoolers with no statutory guidelines or limitations. For the same reason, the court refused to consider HSLDA’s argument that the Schmidts’ due process rights were violated. HSLDA argued that due process guarantees them the right to have a neutral decision maker decide whether they can exercise their fundamental right to homeschool. HSLDA argued that each superintendent has a vested interest in the outcome of the approval process. The court also ignored the loss of the trial record which HSLDA argued denied the Schmidts’ due process rights.

Additionally, the court refused to rule on whether the present law burdens the Schmidts’ religious convictions. However, the court did recognize that the three-part test from Wisconsin v. Yoder and Ohio v. Whisner must be applied to religious homeschool conflicts.

The dissent, on the other hand, was excellent. The dissenting judges found the compulsory education statute clearly void for vagueness and found that the Schmidts’ First Amendment rights were violated by the requirements.

The impact of the decision is limited to only Ohio’s unique administrative appeal process. That appeal process must be utilized by homeschoolers in order to raise all the constitutional issues of vagueness, due process, First Amendment, and Fourteenth Amendment later on in court. The Schmidt decision left open the door for HSLDA to raise all its same issues again in another case, as long as the administrative process is followed.

President of HSLDA Michael Farris is in the process of filing a writ for discretionary review by the U.S. Supreme Court asking them to hear the case because of the numerous errors involved. All homeschoolers need to be praying that God will move them to hear the case and reverse the decision.

Overall, HSLDA has had mixed results with its legal contacts and court cases in Ohio. For example, in 1985, the superintendent of Berea City Schools refused to allow the Svoboda family to teach their children at home because they were not certified by the state. The superintendent, in addition, would not allow the family an opportunity for a hearing nor would he consider the fact that both parents had college degrees. HSLDA president Michael Farris argued the Svobodas’ case before the Eighth District Court of Appeals this October. (Svoboda v. Andrisek, Nos. 51234 and 51385, Eighth District Court of Appeals, Ohio.)

On December 4, 1986, the court of appeals ordered the case to be “reversed and remanded” in favor of HSLDA’s position. The court stated that the lower court had improperly denied the Svobodas their due process right to be heard. The lower court then subsequently remanded the case back to the superintendent for a full hearing with the opportunity for direct and cross examination by the respective attorneys, and a full transcript of the proceedings to be recorded by a stenographer. Chris Klicka of HSLDA flew to Berea and argued the case before the superintendent. Klicka had the superintendent admit on the record that he did not know what standards he was supposed to enforce against homeschoolers. In fact, he admitted the statute was vague as far as he was concerned because he received no guidance from the law whatsoever. The superintendent also admitted that the family’s religious beliefs were sincere concerning their commitment to homeschool and that their academic program was extremely thorough. As a result of the two-hour hearing and testimony, the superintendent reversed his earlier decision on February 27, 1987, finding the Svobodas in compliance with the law.

In other developments, Klicka convinced the superintendent in Avon, Ohio, to cancel a court hearing of the Reip family, an HSLDA member. As a result of HSLDA’s and the family’s efforts, the family was exempted from the bachelor’s degree requirement and allowed to homeschool. In April, another HSLDA family in Lima was threatened and visited several times by local school officials and the police. Klicka was able to postpone all court action and further harassment pending an administrative hearing before the superintendent.

In Cleveland, the HSLDA legal staff in October 1986 appealed the Tuscano case to the Cuyahoga Count Court of Common Pleas because the superintendent denied the Tuscanos the right to teach their own children. The superintendent of Cleveland public schools refused to recognize the family’s right to a religious exemption and the fact that the mother is certified to teach. It is interesting to note that this superintendent has denied approval to all homeschoolers of whom he knew about, regardless of their qualifications. Recently, the court of common pleas sent the case back to the superintendent for a full hearing and record of all proceedings. Attorney Bob Lynch of Cleveland is serving as HSLDA’s local counsel to handle the hearing.

Two other hearings for HSLDA members in Cleveland are scheduled for some time in May. Cleveland is presently the most difficult area for homeschoolers to operate in Ohio.

The HSLDA legal staff has successfully resolved approximately 44 conflicts between school districts and HSLDA members during the 198687 school year so far. HSLDA attorneys were able to solve conflicts in the families’ favor in school districts throughout Ohio, including Cincinnatti, Toledo, Celina, Zanesville, and Geneva.

Homeschoolers must band together in order to pray and work towards urging their legislators to amend their present laws to specifically limit the state school administrations’ arbitrary powers and clearly preserve the families’ constitutional and God-given right to homeschool.