Governor Signs North Dakota’s Home Schooling Law
Certification Requirement Repealed
Perhaps the biggest victory of the 1988–89 school year came in North Dakota, where, despite the small number of home schoolers in the state, the Home School Legal Defense Association had more cases in court for most of the 1988–89 school year than in the rest of the country combined. On April 7, 1989, Governor George A. Sinner signed into law H.B. 1421, North Dakota’s new home schooling law. The new law repeals the state’s former teacher certification requirement for all teachers, which had effectively prevented all but about a dozen North Dakota home schoolers from legally operating. (See Home School Court Report, Spring, 1989, p. 1)
The new law provides for parents who are not certified teachers either to be supervised by a certified teacher for one hour per week, or to pass the state teachers’ examination. Supervising teachers may be employed by either the public district, or a private school of the parents’ choice. Children must take annual standardized achievement tests, which "“must be given in the child’s learning environment” by a certified teacher. Children who score below the thirtieth (30th) percentile must be evaluated for learning disabilities. Children with learning disabilities may continue to home school, but parents must file a statement of “an appropriately licensed professional” stating that the child is making adequate progress given his learning disabilities.
The new law also changed the section on enforcement and violations. Instead of prosecuting for truancy if the compulsory attendance law is violated, the superintendent and state’s attorney must now refer violations to a juvenile court “for a determination as to whether a child is educationally deprived.” This was initially though to be a problematic change, since educational neglect charges can eventually result in children being removed from the home. But one North Dakota district court has already ruled in a home schooling educational deprivation case that it is not enough to prove that the parents have violated the compulsory attendance statute. If the evidence reveals that the child is actually being educated, the child cannot be found to be educationally deprived, even though that education may not fulfill the statutory requirements for compulsory attendance. (See Gilje v. Fischer, Mercer County Juvenile Court No. J-378, Judge Dennis A. Schneider, Feb. 27, 1989, reported in the Spring 1989 issue of The Home School Court Report) This court decision could prove to be very valuable if all truancy violations must follow a similar process of examining evidence as to whether the child is actually receiving an education.
Truancy Charges Dismissed
The new law has already made possible the dismissal of several families’ outstanding truancy charges. Four families who had truancy charges filed against them during this school year had those charges dropped when the new law passed. The Uchtman, Wolf, Karges, Larsen, and Dagley families all had their charges dismissed as a result of the new law. The Dagleys had already been to the North Dakota Supreme Court on an unsuccessful appeal of their truancy convictions from last year, and when the U.S. Supreme Court refused to review their case, new truancy charges were filed for this year. The passage of the new law and the resulting dismissal of this new set of charges is a tremendous relief to the Dagley family.
Van Inwagen Case Lost on Procedural Issues
The Van Inwagen family, also in court for much of the past year, lost their appeal to the North Dakota Supreme Court on the issue of the right to appeal a decision of the State Superintendent of Public Instruction. After appealing their local school district’s decision to the State Superintendent, who upheld the denial of their exemption from compulsory attendance, the Van Inwagens appealed his decision into the court system.
The Mercer County District Court dismissed his appeal for lack of jurisdiction, stating the North Dakota law does not provide for appeals from decisions of the State Superintendent. The North Dakota Supreme Court affirmed this decision.
This loss, however, will not have much precedential value now that the new home schooling law is in place.
Nelson Case Won
During the second half of the 1988–89 school year, no attempt was made to recharge the Nelson family of Sargent County after attorneys Chris Klicka and Greg Lange were able to win their case on November 17, 1988. Attorneys Klicka and Lange won the case on a technicality because the prosecution could not prove a very important element of the crime: that the Nelson child was actually of school age. Several attempts by the prosecution to introduce evidence to prove the age of the child were objected to by the HSLDA lawyers on procedural grounds. The Court sustained the objections and granted Klicka’s motion to dismiss the case.
Only two other HSLDA cases are still pending in North Dakota. The Meline and Brewer cases. The Meline case never went to trial and Greg Lange is presently negotiating to have the charges dropped.
The Brewer case was appealed to the North Dakota Supreme Court and it was argued by HSLDA executive director Chris Klicka on June 9, 1989. The main argument Klicka raised is that the due process rights of the Brewers were violated since they were not given a neutral decision maker before any of their three administrative appeals prior to criminal charges.
NOTE: Already HSLDA has a report that 31 out of 32 parents passed the state teachers’ examination, thereby completely exempting them from using, or being monitored by certified teachers.