Home School Court Report
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MAY / JUNE 1992
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Cover Stories
Pittsburgh School District Caves in to HSLDA

Michigan Authorities Attempt to Arrest Six-Year-Old Child


South Carolina Home Schoolers Celebrate Legislative Victory

Personal Reflections
Great Pains on the Great Plains of North Dakota

Opposition to PAT Programs Startles U.S. Congress

Across the States: Legislatures Consider Lengthening Compulsory Attendance Period

Across the States

National Center Reports

Meet the Staff: Christopher J. Klicka

Kids' Success Stories

President’s Corner

Great Pains on the Great Plains

The frigid attitudes in North Dakota toward home schooling have created a curious situation: Home School Legal Defense Association in mid-April defended in court the same onerous private school law that we have repeatedly challenged as unconstitutional. To add yet another oddity, HSLDA is representing Clinton Birst in the lawsuit—the man who led the fight to reform the rigid restrictions the private school law used to impose on home schoolers. On April 20, HSLDA lawyer Jordan Lorence argued before a state trial court that North Dakota law allows home schoolers a choice: they can choose to comply with the private school exemption or the home school exemption. Clinton and Judy Birst of Mandan want to comply with the private school law, which allows parents who are state-certified teachers to home school their children (Mrs. Birst has a state teaching certificate).

The problem began when the North Dakota Legislature changed the law to permit home schooling specifically in the statutes. Until 1989 North Dakota ranked as one of the worst states in the union in which to home school, because the state law required all home school teachers to be state certified. This state law regulated private schools, and until 1989 the North Dakota government classified home schools as private schools.

The new home school law removed the certified teacher requirement and placed standardized testing requirements on home schoolers. This legislative effort was hailed by home school leaders and Clinton Birst as a great move in the right direction.

When the legislature changed the law in 1989, it also left the private school exemption on the books. Obviously, there are private schools in North Dakota that are not home schools. But then the question arose, can home schoolers still qualify as private schools, or must they all now adhere to the requirements of the new home school law? HSLDA argues in the lawsuit that home schoolers have a choice and can still qualify as private schools.

The North Dakota Supreme Court has said repeatedly that the Legislature cannot amend its statutes by implication. Home schoolers had to abide by the private school law for years. The new home school law does not say that it is the only law for home schoolers in the state. Therefore, HSLDA argues, home schoolers have a choice. North Dakota school officials strongly disagree.

The Birsts decided that they wanted to continue using the private school law rather than the new home school law. Local school officials said that the Birsts could no longer do so. Earlier this year HSLDA filed a declaratory judgment action in state court in Bismarck, asking that the court clearly state that home school families had a choice under North Dakota law of qualifying under the private school law or the home school law.

“It is odd to me that the North Dakota officials adamantly refuse to allow home school families to use the private school law, after requiring them to use it for years,” said Lorence. “Nothing in state law forbids the option—use the private school law or the home school law. Why is the old law no longer any good?”

Some may wonder why any home school family would desire to submit to a certified teacher requirement. Interestingly, in North Dakota there are some home school families who can meet the certified teacher requirement of the private school law and do not like the standardized testing requirement under the home school law (the private school law does not have a standardized testing requirement).

The goal of HSLDA is to maximize options for home-schooling families, even in harsh educational environments like North Dakota. Until the springtime of significant home school reform blows across the snowy plains of North Dakota, winning this case will help home schoolers there—if you catch our drift!

A Victory of Sorts in North Dakota

On April 24, 1992, the state district court in Bismarck, North Dakota, ruled in favor of HSLDA and the Clinton Birst family by saying that families can qualify to home school under either the private school exemption or the home-based education exemption.

However, the court also required all home schools applying to be private schools to comply with all fire, health, and safety regulations pertaining to private schools.

The building code requirements are so detailed and onerous that most homes simply will not be able to comply. HSLDA is, therefore, filing a motion with the trial court to clarify this opinion and to attempt to reverse this harmful and inaccurate reading of the private school law. In preparation for this motion, HSLDA has discovered that current fire and safety code regulations exempt homes. Please pray for Judge Gerald Glaser in Bismarck as he evaluates our claims. A favorable decision on the fire and safety code issue in North Dakota could help families that are home schooling under private school laws in other states.