The Home School Court Report
VOLUME VI, NUMBER IIII
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FALL 1990
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Cover Stories

First Lady Admits “Prejudice” Against Home Schooling

Major Courtroom Victory in Massachusetts

Notes from the Editor

EDUCATION WEEK Volume X, Number 3 • September 19, 1990, Reprinted by Permission

Features

President's Corner

Across the States

National Center Reports

National Center Reports

Notes of Gratefulness

Dear HSLDA,

We just wanted to write and thank you for all you do to ease our minds concerning the legalities of our choice to teach our children at home. This is our first year and so far it has been a real answer to prayer….

This morning we noticed that our local public school teachers are on strike and picketing….This brought on much discussion among us and the children. The children are both disturbed by the fact that these teachers care so little about the kids that money is more important to them than teaching….It just stands to reason that the education our children get from parents who love them and are concerned about their future will be superior to the education they would get from teachers who are concerned only about their future and their financial gain even at the expense of the children.

Thanks again for your devotion to The Cause. We uphold you in our prayers in our little classroom and will always be pleased to send our membership fees in so that you can continue your good work on behalf of all of us who are unable to do it for ourselves.

A Ypsilanti, MI, Member Family

Dear HSLDA Staff,

After being involved in the EEE case here in S.C. and seeing all of the work that was involved in preparing for it, our family is once again so thankful for the Home School Legal Defense Association. Just graciously handling our numerous phone calls blessed us—but to see a part of your work in action really confirmed to us just how blessed home schoolers (especially us!) are to have your expertise working for us!

So, to say a small thank you for all that you do seems like the very least we can do. God bless you—each one of you!

A South Carolina, Member Family

“We appreciate your organization. It provides a peace when we're confronted with neighbors who insist the children will be hindered in later life and the possible threat of them calling us in for their own reasons. We are thankful the Lord moved on you all to found such an association of protection for home schoolers.”

“Thank you again for your services. Keep up the good work. We will continue to pray for you.”

From San Antonio, TX

Member Family

“We would greatly like to thank Christopher Klicka, Michael Farris, and all those at HSLDA who have been without ceasing help and intervention with all our home-schooling matters. Through the wise counsel given us, we have gained a friendly relationship with our Bensalem Township's Pupil Personnel Director, Rita T. Schmidt. The Lord had definitely taught us through your ministry how to be obedient servants in Him. We will continue to pray for its fruitfulness and victory in the matters being dealt with other home-schooling families in the USA.”

From Bensalem, PA
Member Family

Meet Chuck Hurst

Membership services…Have you ever stopped to consider what this department does? These incredibly busy people answer your telephone calls, open the daily flood of mail, review applications, enter new families into the data base, make new files, process re-enrollments, and plow through reams and reams of filing.

Ordering this process and meeting the day-to-day operational needs of HSLDA, is Charles L. Hurst, our Membership Services Director.

Charles, known locally as Chuck, dispatches his responsibilities with diligence and creativity. His diverse background uniquely qualifies him for the position he holds with HSLDA.

Trained in the field of education, Chuck taught on the junior high and high school levels for over nine years. Sensing God was leading him in a different direction, he left the teaching profession in the spring of 1988. Chuck's training in the social sciences had created a strong interest in the field of law, and he began exploring various options for entering that profession. It was during this time that he first came into contact with HSLDA.

Chuck followed up this prompting by completing the lawyers assistant program at Roosevelt University in Chicago. Between the time he left teaching and his employment at HSLDA he did construction jobs with several men from his church.

After graduating, Chuck began looking for employment in the field of law. He sent HSLDA a resume and in September 1989 received a call regarding an opening. Before flying to Virginia for the interview, Chuck and his wife, Dianne, sensed that this was the position for which God had been preparing him. After a year of working here, Chuck attests that this was indeed the case.

A background in teaching provides Chuck with insight into many of the educational problems families face, while his paralegal training gives him a working understanding of the legal complexities involved in home schooling. Additionally, God has used Chuck’s experience in construction (along with his gift of servanthood) for assembling a variety of office equipment and overseeing our remodeling projects.

Chuck and Dianne are thrilled that God has led them to Virginia, and that He has allowed them to serve you through their ministry at HSLDA. Dianne also taught at the high school and university levels for eight years and has been involved in developing home education curriculum for ATIA. Chuck and Dianne have three adorable children, Jennifer (6), Jackye (4), and Jacob (7 mos).

Staff Changes

Ruth Ritchie, who has worked part-time for HSLDA in membership services for the past year, has become a full-time employee and taken Susan Dawson's place as Chris Klicka's legal assistant. Ruth is a native of the Washington, D.C. area.

Lisa Minko recently joined our staff to work in membership services. Lisa’s responsibilities include taking turns at the receptionist desk, entering new members into the data base and helping with the ever mountainous stacks of filing. A northern Virginian, born and bred, Lisa heard about HSLDA and a possible employment opportunity through friends in her church. She is a delightful addition to our staff, and we are pleased to welcome her.

HSLDA Introduces New Board Member

At the July 1990 meeting of the Home School Legal Defense Association's board of directors, Jeff Ethell was voted in as a new board member. Jeff and his wife, Bettie, have three children: Jennie (18), David (16), and Julie (12). They have been home schooling for the past nine years and have been active participants and leaders in their state home school organization.

The Ethells' path to home schooling is rather atypical, even for individualistic, hard-to-categorize home schoolers. It all started when, after graduating from college and taking several seminary courses, Jeff and Bettie opened the Richmond Youth Challenge, a home for troubled teens. Supported entirely by faith, their ministry took in young people struggling with the problems of drug addiction, alcoholism, and the turmoil of broken homes.

After six years and two babies, Jeff and Bettie realized their ministry was taking all of Jeff’s time and that his family was being short-changed. Jeff believed that he had a choice to make—his family or the ministry of Richmond Youth Challenge. From his experience working with troubled teens, he knew that young people were often in trouble because they came from broken homes or because their parents had not put the family first. He had even worked with children from ministers’ homes who had been neglected while their fathers ministered to the needs of everyone else. Jeff purposed that his children would not suffer such a fate.

Determined to choose his family and honor the Lord, Jeff left Richmond Youth Challenge for his current occupation: writing books and articles about aviation. He is also a commercial pilot and a flight instructor.

Jeff’s change in occupation acted as the catalyst to home schooling for the Ethells. Research for his books and articles began taking him away from home for weeks at a time. Again the Ethells were faced with a decision. Not wanting to desert his family for his job, Jeff realized he would either have to find other work or find a way to take Bettie and the children with him.

Deciding to explore their options, Jeff and Bettie began taking the children out of school for a few weeks at a time so that the family could accompany Jeff on his trips. They obtained assignments from the teachers, and Bettie gave the children instruction while they traveled. Upon returning, they consistently discovered that the children had moved ahead of their classmates academically by a week or more of traditional instruction time.

The Ethells continued this practice, and the trips started stretching to a month or more. Each time the children reentered their classrooms, they were found to be even further ahead than before.

Finally, Bettie suggested that they just take the children out of school altogether. Reared in Brazil, the daughter of missionaries, Bettie was taught at home in the elementary grades with the Calvert curriculum. Therefore, she knew that what she was proposing could be done.

The school district did not oppose the Ethells’ plan to remove the children from school since all the paper work involved with their “leaves-of-absence” was becoming a hassle.

The Ethells knew that the schools were godless. But it wasn't until they began home educating that they realized their responsibility for their children’s education included training them to maintain the values of the Christian life and providing an environment to reinforce a godly life-style.

Originally, Jeff and Bettie had planned to re-enroll their children in traditional school for their high school years. But when the time for that decision came, they discovered that it had actually been settled long ago. First, the children were two to three grades ahead of their traditionally-schooled counterparts. Putting them back into the system would have sentenced them to boredom. Second, the Ethells were committed to providing an atmosphere for their children’s continued spiritual growth. On that basis alone, the public school environment was not an option.

Having stumbled onto home schooling as if by accident, the Ethells were not aware that anyone else was doing it. Soon they began hearing of other home schoolers, however, and then, in the early 1980s, they came into contact with HEAV (Home Educators Association of Virginia). Their involvement led to a term as president for Jeff in 1987, a role which he fulfilled until this summer when he resigned to become an HSLDA board member.

We are excited to welcome Jeff to his new responsibilities and look forward to watching how God will use his life in furthering the cause of home schooling during the years that lie ahead.

Another Good Reason to Home School?

Responding to a rash of random gunshot killings of children in New York City this summer, a company has begun marketing bullet-resistant vests and other protective items for pupils.

Stephen L. D’Andrilli, a former New York City police officer who is now president of Guardian Group International Corporation, says the New York-based company has already taken more than three dozen orders from parents of schoolchildren.

The company markets protective clothing and other items ranging in price from $250 to $600. A jacket made with Kevlar 129 protective pads sells for $450.

“Six months ago, the idea of bullet-resistant clothing for one’s child would have been considered irrational,” Mr. D’Andrilli says. “The fact that New Yorkers and people throughout the world need protective clothing, especially for children, is a terrible reflection of the collapse of law and order in our society.”—M.W.

Reprinted with permission from EDUCATION WEEK, Volume X, Number 3, September 19, 1990.

Religious Freedom Hearings Begin

Religious Freedom Week, September 23–29, 1990, was set aside by the U.S. Senate and House and recognized by a special Proclamation by the President of the United States to remind us that we need to be vigilant in protecting this important foundation of our country’s heritage. Thus, it was particularly appropriate that the initial hearings on the Religious Freedom Restoration Act of 1990 (H.R.5377) before the House Judiciary Subcommittee were held on Thursday morning, September 27.

Congressman Stephen J. Solarz [D-NY], chief sponsor of the bill, began the proceedings with a history of what had motivated the unusually diverse coalition to call for this important piece of legislation and a brief summary of what the legislation would actually do.

“On April 17, the Supreme Court dealt a devastating blow to religious freedom in the United States. In the case of Oregon Employment Division v. Smith, a majority of the Justices discarded the longstanding application of strict scrutiny to free exercise cases involving neutral, generally applicable laws. The strict scrutiny standard prevented governmental authorities from imposing burdens on the free exercise of religion unless they could demonstrate that they were furthering a compelling governmental interest and had used the least restrictive means to further that interest”.

“The Religious Freedom Restoration Act would correct the Court’s unwise and unwarranted action by simply reinstating the compelling interest test that has served our country so well…”.

“The diverse coalition that has formed in support of H.R.5377 demonstrates just how fundamental this approach to religious tolerance is to the American way of life. Our list of more than 75 cosponsors in the House includes members from both sides of the aisle, liberals and conservative, and members from all parts of the country, including several distinguished members of this Committee… In fact, to date, I am aware of no opposition to this legislation in or out of government.”

Representative Lamar Smith [R-TX] joined his colleague with a passionate plea for recognizing the true value of our religious liberty as Americans: “The free exercise of religion is one right that separates a free nation from a totalitarian, suppressive regime. For over 40 years we have condemned communist countries for their official atheism and persecution of religious minorities and during World War II we fought to end the Jewish Holocaust. We have to practice what we preach.”

“How can we tolerate, even for a second, a ruling that allows the political majority to turn individual expression of religion into criminal behavior?...”

“The new ruling limits one’s religious ‘freedom’ to private thought, not expression. To treat religion as if it should not be seen or heard, is to deny its essential power. For one’s faith means little unless it is put into practice.”

A special panel of three witnesses then addressed the subcommittee, each representing the concerns of the constituency he represented: Dean M. Kelley for the National Council of Churches, Robert P. Dugan for the National Association of Evangelicals, and John H. Buchanan of People for the American Way.

Mr. Kelley's remarks expressed “extreme outrage and distress that the Supreme Court of the United States has in effect nullified the Free Exercise Clause of the First Amendment by its ruling in Oregon v. Smith, April 17, 1990…even though the Court itself recognized that religious minorities will inevitably be ‘disadvantaged” in the political process—the exact consequence the Bill of Rights was designed to prevent….”

He went on to persuade, “Congress has heard much in recent days about the court's ‘whittling away’ at the law’s protections against racial discrimination, and the Civil Rights Act of 1990 is designed to restore some of what has thus been lost. But the Smith decision is not just ‘whittling”; it is a sudden, devastating act of near-total demolition far more sweeping than anything that has happened to civil rights. Yet so cleverly was that act disguised behind the stalking-horse of the peyote decision that most people are entirely unaware of what happened….”

“It is only the unconventional practices of minorities and nonconforming individuals that put the guarantees of the Bill of Rights to the test. And now the Court has abandoned the very test it had long enunciated to protect the free exercise of religion.”

Mr. Kelley concluded his testimony with an illustration entitled, “What Difference Does It Make?”: “Scarcely was the ink dry on the Smith decision than its effects began to be felt. A case reached the Supreme Court in which the Minnesota Supreme Court had held that the state law requiring slow-moving vehicles to display a vivid orange triangle could not be enforced against the Amish religious objection to affixing such a garish emblem to their black buggies. (Grey-silver reflector strips were an alternative acceptable to the Amish and the court.) The U.S. Supreme Court sent the case back to Minnesota with instructions to reconsider it in the light of the Smith decision, with the implication that the Free Exercise Clause provided no defense for the Amish against Minnesota's traffic laws….”

“Passage of the Religious Freedom Restoration Act does not guarantee how any of those cases would come out. That is not the point. The Act would guarantee only that the free exercise claimants would have their ‘day in court’ when the government would be obliged to demonstrate the ‘compelling state interest’ that has been its obligation for 27 years.”

Robert Dugan graphically described the freedom betrayed by the Smith decision as he countered the thrust of Justice Scalia's opinion: “In Employment Division v. Smith five Justices of the Supreme Court eviscerated the Free Exercise Clause of the First Amendment. In the post-Smith world, government no longer needs to demonstrate a compelling governmental interest to justify an erosion of religious freedom. Now all that is needed to restrict religious exercise is a neutral law of general applicability. Our ability to put our faith into action is now totally subject to majoritarian rule….”

Smith was thought to present a narrow question of constitutional law: Whether the State of Oregon had a compelling interest in regulating illegal drugs that overrode free exercise rights in the sacramental use of peyote. That was the issue briefed; that was the issue argued. This was thought to be a routine Free Exercise case which would no doubt be decided within the parameters of well-established precedent.”

“Thus we were stunned when the Court used this seemingly innocuous case to announce a complete overhaul of established First Amendment law….”

“We were ambushed. Justice O’Connor is right on target when she says the Court’s holding ‘not only misreads settled First Amendment precedents,’ but also ‘appears to be unnecessary to this case.’”

“Religious liberty remains a God-given right, as the Declaration of Independence indicates, but it is no longer secured by the Constitution as interpreted by the 5-4 majority. It is now to be bestowed by a beneficent majority as a matter of legislative grace, or denied by majoritarian rule unpersuaded by the claims of a religious minority….”

“According to Justice Scalia, applying the compelling interest test to all action thought to be religiously commanded would be ‘courting anarchy.’ We are told that in our religiously pluralistic society, we cannot afford the ‘luxury’ of the compelling governmental interest test. Justice Scalia is dead wrong….”

“Justice Scalia concedes that ‘leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in.’ But he shrugs this concession off with the callous comment that this result is the ‘unavoidable consequence of democratic government.’ It is ironic that Scalia’s professed fear of courting anarchy instead courts despotism….”

“Justice Scalia, we have to believe, does not realize the full import of his ruling. We are speaking today about religious practice. For high-demand religions, there are practices that are immutable.”

“When it comes down to obeying God or Caesar, the devout have no choice…. While we concede that free exercise is not an absolute, and that it must yield to compelling governmental interest, we cannot but remonstrate against the present rule which requires no justification whatsoever for the abridgement of religious freedom, and will—I repeat—lead inevitably to civil disobedience.”

Mr. Buchanan began his testimony by explaining the reason for the tremendous diversity evident in the coalition: “The breadth of support for this legislation, from People For to Concerned Women for America, has raised many an eyebrow. How could it be possible that we, who so seldom agree on public policy matters involving church and state, could agree on the need for this legislation? The Religious Freedom Restoration Act unites us, however, because it seeks to protect the fundamental principle of religious freedom undermined by the Supreme Court in the Smith decision and does not grant government approval or disapproval to any religious practice or belief. Nor will this amazingly diverse coalition support or seek an amendment to that end. It’s our shared commitment to the Free Exercise Clause that enables us to ‘beat our swords into plowshares’ today.”

He then focused on the substance of the debate between Justice O’Connor and Justice Scalia to convince the subcommittee of the importance of the issue at stake. “Justice O’Connor succinctly summarized the Court’s line of precedent…:

…we have respected both the First Amendment's express textual mandate and the governmental interest in regulation of conduct by requiring the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.

“As Justice O’Connor further explained, however, the majority opinion in Smith ‘dramatically departs from well-settled First Amendment jurisprudence’ and is ‘incompatible with our nation’s fundamental commitment to individual religious liberty.’ As a result of Smith, the government today needs merely to articulate a rational basis to justify any burden it imposes on religious activity. Few burdens on religious liberty will be outlawed under this weak test. That is why the Religious Freedom Restoration Act is so important….”

“Incredibly, Justice Scalia used the word ‘luxury’ to describe the fundamental right to free exercise of religion. He wrote in Smith:

Precisely because ‘we are a cosmopolitan nation made up of people of almost every conceivable religious preference,’ and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.

However, Scalia went on to list several types of government rules—the payment of taxes, child labor laws, animal cruelty laws—where the Court has found a compelling state interest in uniform application of the law despite free exercise claims. In so doing, we believe that Justice Scalia unwittingly proved the very point at issue here today: the system works! The compelling state interest test balances two crucial concerns—the individual interest in religious liberty and the government interest in uniformly applying its rules—without prejudging either as being, as Scalia puts it, ‘presumptively invalid.’…

Mr. Buchanan finished with a clarification of the Congress’ obligation as well as right to bring balance to the Supreme Court’s work: “As a former Member of Congress, I am particularly sensitive to the separation of powers issue raised by the Religious Freedom Restoration Act. It is a very serious undertaking by Congress to effectively overturn a constitutional interpretation by the Supreme Court. Credible answers must be provided to two basic questions: Does the Congress have the authority to pass this legislation? Has the Smith decision substantially undermined the free exercise of religion and does it pose a substantial risk for the future of religious liberty?”

“Section 5 of the Fourteenth Amendment provides that ‘Congress shall have power to enforce, by appropriate legislation, the provisions of this article.’…Because the Fourteenth Amendment applies the Bill of Rights to the states, First Amendment rights are legitimate subjects of legislative protection. Since the Religious Freedom Restoration Act seeks to ‘secure the guarantees‘ of the Free Exercise Clause, Congress has the authority to adopt the legislation. Of course, the legislation does not literally overturn the Smith decision or conflict with the Court's authority as interpreter of the Constitution, but instead creates a new statutory right which secures the protection of the Free Exercise Clause.”

Mr. Buchanan‘s closing challenge is fitting for us as we follow through with letters to our Congressman and Senators, urging their support of H.R.5377: “In 1954, constitutional historian Henry Steele Commager wrote, ‘Freedoms vindicated anew are more precious than those achieved without effort, and only those who are required to justify freedom can fully understand it.’ Mr. Chairman, the expressed constitutional right to free exercise of religion is in jeopardy. The compelling state interest test must be restored.”

Michael Farris of Home School Legal Defense Association will be testifying at one of the future hearings for this bill as we move to passage, hopefully during the 102nd session of Congress beginning in January 1991.