The Home School Court Report
VOLUME IV, NUMBER I
- disclaimer -
Early Spring 1988
Cover
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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

Features

President’s Corner

Across the States

C O V E R   S T O R Y

Superintendent declares homeschooling illegal in Illinois

Recently, the public school district of Cook County, Illinois, denounced homeschooling as illegal. This past November, Superintendent Richard Martwick sent letters to homeschoolers in the county claiming that “the School Code of Illinois does not authorize what is commonly called home school,” and threatened to prosecute all homeschooling families. Mr. Martwick subsequently initiated truancy proceedings against several homeschool families.

HSLDA Executive Director Chris Klicka contends that the Illinois legislature, state supreme court, state board of education, and the U.S. Constitution all stand in direct opposition to Mr. Martwick's interpretation of the Illinois compulsory attendance law concerning homeschooling. In an eight-page legal memorandum, available through HSLDA, Chris Klicka refutes Mr. Martwick's interpretation citing the authorities above to dispute Martwick’s claims.

Klicka first argues that the Illinois Compulsory Attendance Law, Chapter 122, 2601, does not prohibit the operation of private schools in the home. The language in this section clearly states that as long as a private school provides instruction “in the branches of education taught children of corresponding age and grade in the public schools,” and as long as that instruction is in the English language, a private school is in compliance with the compulsory attendance law. According to 23 Illinois Administrative Code Chapter 1, 1.440, the required subjects are language arts, science, math, social studies, music, art, health, physical education, career education, safety, and conservation of natural resources. If these subjects are being taught, and the instruction is being given in the English language, a school can classify as a private school. Nowhere in the law does it specify what type of building a private school must use, or how many students must be in attendance.

Furthermore, Klicka argues that the Illinois Constitution, Article X, sections 1 and 2, only gives the state authority to establish, maintain, and control public schools, not private schools. In Illinois Statutes Annotated, Chapter 122, 1A(C), the state board of education is given the authority to “recommend” policies and guidelines for private schools to the general assembly, but has never been conferred regulatory authority over private schools.

Turning to the courts in his refutation of Martwick’s position, Klicka appeals to an important Illinois Supreme Court decision to support his position. In People v. Levisen, 401 Ill. 574, 90 N.E. 2d 213, 1950, the Illinois Supreme Court reversed the conviction of homeschool parents for violation of the compulsory attendance law. In short, the court held that a homeschool is a legal private school. The court defined a private school as

a place where instruction is imparted to the young . . . the number of persons being taught does not determine whether a place is a school. Id, at 215. (emphasis added)

The court in Levisen further clarified the intent of the compulsory attendance law when it stated:

. . . the law is not made to punish those who provide their children with instruction equal or superior to that obtainable in the public schools. It is made for the parent who fails or refuses to properly educate his child. Levisen, at 215.

But, as Klicka argues, Mr. Martwick is completely ignoring the intent of the law in his conclusion that homeschooling is illegal in Illinois. Mr. Martwick is applying the compulsory attendance law exactly the way the Illinois Supreme Court warned it should not be applied in the Levisen decision.

Mr. Martwick’s interpretation is not even supported by the Illinois State Board of Education, which has consistently recognized the right of homeschools to legally operate ever since Levisen. The state board has never advocated the position that homeschooling is illegal.

In 1984, Leo Hennessy, Assistant Illinois School Superintendent for Supervision and Recognition of Schools, stated: “it is not illegal for parents to keep their children at home to teach them” (The Sunday Herald, “Their Learning Starts, and Stays, at Home,” January 29, 1984). This and many other public statements by state board of education officials clearly contradicts Mr. Martwick’s interpretation that homeschooling is illegal in Illinois.

In addition to the parents’ right to homeschool guaranteed by the Illinois Supreme Court, the Illinois compulsory attendance law, and the state board of education, parents also have a constitutional right to homeschool. Klicka’s final arguments against Martwick’s position are the first and fourteenth amendments to the U.S. Constitution.

The parents’ right to homeschool is guaranteed by the first and fourteenth amendments. First, the 14th Amendment guarantees that all citizens have the right to liberty which cannot be taken away without due process. The U.S. Supreme Court and many lower courts have applied this guarantee of liberty to the area of parental liberty. Based on this interpretation of the 14th Amendment, the courts have held that “parents have the fundamental right to direct the education and upbringing of their children” (State v. Whisner, 47 Ohio St. 2d 181 [1976], Mazanec v. North Judson-San Pierre School Corporation, 763 F.2d 845 [7th Cir. 1985], 614 F.Supp. 1152 [1985, N.D. Ind.], Meyer v. Nebraska, 262 U.S. 390 [1923], Pierce v. Society of Sisters, 268 U.S. 510 [1925]).

Secondly, the First Amendment protects all those families who believe that in order to freely exercise their religious belief, they must teach their children themselves. The First Amendment guarantees them the right to freely exercise their religious beliefs concerning homeschooling (New Life Baptist Academy v. East Longmeadow School District, 666 F.Supp. 293 [D.Mass. 1987], and Wisconsin v. Yoder, 406 U.S. 205 [1972]).

With the current law and court decisions on the side of homeschoolers, HSLDA believes that Mr. Martwick’s new policy of prohibiting homeschooling, thereby denying the civil and constitutional rights of parents who teach their children at home, must be immediately amended to comport with the interpretation of the compulsory attendance law handed down in Levisen. Illinois homeschoolers are attempting to prevail upon Mr. Martwick to change his policy using HSLDA’s legal arguments for support.

Meanwhile, HSLDA has received reports from several other counties where superintendents are beginning to place additional restrictions on homeschoolers. HSLDA attorneys are in the process of negotiating with several districts to convince them to abandon unconstitutional requirements.

HSLDA was notified at press time that Mr. Martwick has officially retracted his opinion that homeschooling is illegal in Illinois.