The Home School Court Report
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Early Spring 1988
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Cover Stories

Is Certification Compelling?

Victory in Ohio

Contact Countdown

Negotiations in New Hampshire

Legislative Update

Farris Before President’s Commission

States in brief . . .

HR 5 update: School Improvement Act of 1987

Superintendent Declares Homeschooling Illegal in Illinois

Iowa on Hold

Pennsylvania: Worst State of the Year

School Boards Prosecute, Not Protect, Religious Freedoms

Superintendent Smokescreen

Climate in California


President’s Corner

Across the States


Victory in Ohio

In the last issue of the Home School Court Report, HSLDA had filed a Writ of Certiorari with the U.S. Supreme Court, asking for review of State v. Schmidt, 505 N.E.2d 627, 29 Ohio St. 3d 32 (1987). Readers might expect that, based upon the title of this article, the victory relates to the Schmidt case. However, the supreme court did not grant Certiorari and Schmidt is the law in Ohio for the time being. Nevertheless, HSLDA attorneys have successfully resolved several cases in Ohio this school year in spite of the Schmidt decision. Before discussing the recent victories in Ohio, it is important to provide an update on the Schmidt case and the effects of the decision.

Through the assistance of Youngstown attorney Robert Melnick, the Schmidts and other parents are teaching their children at home by establishing private schools pursuant to § 3301-35-08 of the Ohio Administrative Code. It is believed that this arrangement will satisfy the prosecutors so as to avoid further litigation. Regarding the effect of this case in Ohio, the case requires the providing of information to the school district (upon request) pursuant to the administrative process outlined in the Ohio Code for those seeking excuse from full-time attendance at the public school. The effect of failing to provide information could result in a filing of truancy charges in court. Should that happen, Schmidt gives the trial judge authority to prevent the presentation of constitutional arguments in the parents’ defense.

Therefore, HSLDA continues to recommend that if a member is contacted by the school officials, he or she should contact Michael Smith of our office immediately. He will advise members on how to handle the situation and, if necessary, contact the officials directly. Most contacts can be resolved by providing information (not designed to seek approval) and, where necessary, providing legal memorandums explaining the present law in Ohio as it relates to homeschooling. After all of the above, should a superintendent deny a family an excuse, HSLDA will immediately file an appeal and raise all of the appropriate defenses, both constitutionally and statutorily. Since the family did follow the administrative process by providing information, the judge is mandated by Schmidt to consider all of the defenses in making his decision to uphold or reverse the superintendent’s denial.

Following the procedure outlined above, HSLDA has had several victories in Ohio. HSLDA attorney Michael Smith has filed five appeals this school year for families who have gone through the above procedure and have been denied. There is presently one case still active. With the help of local counsel (Douglas Dougherty of Columbus, and Bob Lynch of Cleveland) hired by HSLDA to represent the families, HSLDA has convinced superintendents in Allen and Summit counties that the plausibility of success in the courts is insufficient to continue the denial of the homeschool program in question. Upon the granting of an excuse to each family, HSLDA dismissed the cases against the superintendents.

In only one case, where there was a denial and HSLDA appealed, was it necessary to appear in court. With the assistance of attorney James Condit from Cincinnati (local counsel hired by HSLDA), the judge was convinced of the validity of HSLDA’s arguments. The judge had read HSLDA’s brief and informed the superintendent (of Lawrence County) that there appeared to be valid legal issues raised on the part of the family. After a pre- trial conference with the judge, the superintendent changed his mind and excused the family.

In the Court of Common Pleas, Juvenile Division, Marion County, the Doss family appealed the denial of their request to homeschool their five minor children. Neither parent had a college degree and Superintendent Stuart took the position that the parents, therefore, were not qualified to instruct their children at home. Mrs. Dodds had assisted in the public school classroom for many years and had taught Sunday school classes.

Michael Smith filed a pretrial brief which contained five basic arguments in an attempt to persuade Judge Jenkins that the denial of the superintendent should be reversed. In case number 27285, the judge granted the appeal on February 4, 1988. In his opinion, the judge indicated that the basis of his opinion rested squarely on the Whisner case. The judge found that the family’s religious beliefs were sincere and “truly held.” He also found that the state's compulsory attendance law infringed upon the family’s right to free exercise of religion, and that the state’s interest is not of such magnitude as to override the families’ free-exercise rights.

He said that in light of the family’s beliefs, there was not enough evidence to allow the court to rule that Mrs. Dodd was not qualified to teach her children at home. Therefore, the family must be given the opportunity to start the homeschool program. The judge did indicate that the program was entitled to continue only so long as “successful.” He did not define what “successful” meant; however, if in the future a finding was made that the program was not successful, Mrs. Dodds could be found not to be qualified.

We rejoice with the family over the decision although we do not agree with the decision in its entirety. Under the Whisner decision, we believe that the court should simply decide whether the school district is using the least restrictive means in their guidelines for determining whether one is qualified or not. A school district requiring a specific educational requirement is, arguably, not using the least restrictive means available to insure that the state’s legitimate interest in education is being met. Also, if a school is conditioning its approval on testing, reporting, home visits, etc., the court should make the same determination, i.e., does it satisfy the least restrictive means test as defined by higher courts.

The judge did volunteer in his opinion that the courtroom is not the place to debate educational policy and measurement of quality and that the problem needs to be solved by the legislature.

In addition to these four successful cases, the Tuscano v. Tutela case (No. 8612347, Common Pleas Court, Cuyahoga County) which HSLDA attorneys argued last year was recently decided favorably. The court reversed the Cleveland superintendent’s denial of the Tuscanos’ homeschool finding the family “qualified.” This is an important victory in Cleveland because Superintendent Tutela’s policy prohibited homeschooling altogether, even if the mother was certified. He also refused to consider religious exemptions. Bob Lynch of Cleveland served as local counsel for HSLDA.

HSLDA continues to find that superintendents are taking the position that the minimum teacher qualifications acceptable to ensure that a person is “qualified to teach the branches on which instruction is required” under the Ohio Code, is a college degree. It is believed that this notion originates from a memorandum issued by Superintendent Walters of the Ohio Department of Education. In that memorandum, Dr. Walters states the following: “The superintendent should make a sensitive inquiry as to:—the qualification of the teacher (advise approval with a baccalaureate degree).” This is certainly far from advocating a college degree as a minimum requirement. This statement should be interpreted to say that the superintendent should excuse any program where the teacher has a college degree and make a sensitive inquiry into any situation where the parents has less than a college degree. The law does not require parents to have a college degree to teach their child at home.

What is the future of homeschool legislation in Ohio? In HSLDA’s last newsletter, it was suggested that perhaps legislation or regulations promulgated by the state board of education, might remove the unbridled discretion of the local superintendents. By way of update, the state board has passed a resolution to form a committee commissioned to make recommendations to the board for the purpose of promulgating homeschool regulations to be followed by the superintendents in the state. At the present time, it appears that there will be five homeschool advocates on the 19-member board. There is some concern regarding the makeup of the committee, and that issue has not been finally resolved.

Regarding legislation, legislator Larry Manahan has introduced his homeschool bill and has obtained signatures of 28 cosponsors. At this date, the bill has not been assigned to committee for discussion. These two issues are of utmost importance to homeschoolers in Ohio and bear careful watching.

It came to the attention of HSLDA that a homeschool mother and father (the Woods) were charged and convicted of contributing to the delinquency of a minor and were sentenced to six months in jail to be served concurrently (both must serve the sentence at the same time) in Lucas County. The judge gave the parents the alternative of enrolling their child in an approved school or serving the time in custody, and HSLDA was informed that the trial judge would not let the family put on any constitutional or legal defenses to the charge. This family was not a member; however, HSLDA has been in contact recently with the family’s lawyer, and agreed to help with the appeal if necessary.

Most recent developments in the Woods case reveal that the judge was willing to modify the sentence if the parents would sign the application to the superintendent asking permission to homeschool. The Woods would not do so and their attorney, George Smith, filed a motion to the Ohio Supreme Court requesting a new trial with a new judge. The supreme court stayed the initial sentencing date until a decision could be reached on the motion. The motion was subsequently denied on January 29 and the Woods went before the court for sentencing.

In the meantime, the Ohio press had begun extensive coverage of the case, and at the sentencing, much to the family’s surprise, the judge ordered the prosecutor, the superintendent, the Woods, and their attorney to reach an agreement. The parties decided that the Woods would merely sign a statement of assurance that education would be provided for their children and sign a document relieving the school district of any responsibility for the education of their children. The judge accepted the agreement and motions to dismiss the convictions are set for February 19.