The Home School Court Report
VOLUME IX, NUMBER 1
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JANUARY / FEBRUARY 1993
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H. R. 6
SPECIAL REPORT


Cover Stories
HSLDA Argues Before Two State Supreme Courts

Home Schoolers Celebrate Victory in the North Dakota Supreme Court

Leeper Case Argued Before Texas Supreme Court As Home Schoolers Rally to Support Parental Rights

Financially Strapped School Districts Try to “Enroll” Home Schoolers

Features

National Center Reports

Congressional Action Program

President’s Corner

Across the States

COVER STORY

Home Schoolers Celebrate Victory in the North Dakota Supreme Court

Home School Legal Defense Association won a major victory before the North Dakota Supreme Court on December 14, 1992, in a case which will favorably affect families in states where home schools operate under the private school laws.

The North Dakota Supreme Court ruled that under state law home schoolers may choose whether they wish to operate under the home school law or the private school law. State authorities had argued that home schoolers had to use the home school law exclusively and could no longer use the private school law.

Also significant to home schoolers across the nation is the North Dakota Supreme Court’s ruling that homes where schooling takes place need only meet the building, fire, and safety code requirements for homes, not school buildings. State authorities and the trial court had said that if home schools operate as private schools, the homes must meet all the building code requirements for private schools (wide hallways, lighted exit signs above doors, panic bars on exit doors, etc.). That requirement made it virtually impossible for home schools to operate as private schools.

HSLDA’s president Michael Farris, praised the ruling. He commented that HSLDA has argued about six other cases before the North Dakota Supreme Court, but this was the first victory on the merits of the case for home schoolers in that state.

The North Dakota decision will also help home schoolers in other states that have both home school laws and private school laws, according to HSLDA attorney Chris Klicka. He explained that officials in the other states have argued, as North Dakota did, that home schoolers cannot choose to comply with either the home school law or the private school, but can only use the home school law. This is the first state supreme court that has ruled that home schoolers do have a choice of laws if the legislature does not expressly limit home schoolers and deny them that choice.

Klicka also said that the decision will help families in the dozen or so other states that allow home schools to operate as private schools. Klicka said that in those states, some officials have attempted to force the homes to comply with the building code requirements for school buildings. This is the first time that a state supreme court has addressed the building code issue and ruled firmly in favor of home schooling.

Michael Farris argued the case before the North Dakota Supreme Court last October on behalf of Clinton and Judith Birst of Mandan, who are prominent home school leaders in their state. The main issue in the case was whether home schoolers may choose to use either the home school law or the private school law, if they may use the home school law only.

Until 1989, all home schoolers had to qualify under the restrictive private school law which requires that students be taught by state certified teachers. In 1989, the North Dakota Legislature passed a home school law which loosened some restrictions on home schools, but imposed a rigid testing requirement.

Judith Birst is a certified teacher and qualified her home school as a private school before the new law was passed. The Birsts objected to the rigid testing requirement under the home school law and attempted to qualify again under the private school law as they had done for many years previously. School authorities refused to grant Mrs. Birst recognition as a legal private school, even though she qualified under all provisions of the private school law. HSLDA filed a lawsuit on behalf of the Birsts in late 1991.

Last April, the trial judge in Bismarck ruled partially in favor of the Birsts, by ruling that home schools can qualify as private schools. Additionally, the trial court imposed the onerous requirement that homes qualifying as private schools must pass all health, safety and fire code provisions for private schools buildings.

The trial court refused to change its ruling, and HSLDA appealed to the North Dakota Supreme Court.

The North Dakota Supreme Court agreed on all points with HSLDA. The high court ruled that the North Dakota Legislature did not repeal or amend by implication the private school law when it passed the home school law. In other words, the Court ruled that the legislature expanded the options for home schoolers. They could qualify under the home school law or the private school law. If home schoolers could use the private school law in the past, they could still use it now, because the Legislature had done nothing that would demand any other conclusion.

The North Dakota Supreme Court also rejected the requirement that home schools qualifying as private schools must meet all of the safety code requirements for school buildings. The Court pointed out that the building code used in North Dakota specifically states that if the primary use of a building is not for education, then the building code provisions for its primary use prevail. In other words, if a building is primarily a home with a secondary use as a school, the structure must meet the building code requirements for a home.

The building code also states that if a school has six students or fewer, the school building code provisions do not apply. The opinion said that most private schools in homes would be exempt under one provision or another.

Jordan Lorence, the HSLDA attorney who handled the case at the trial level, said that the building code used in North Dakota is a standard building code used in many other states. Therefore, the North Dakota ruling could directly apply to other states using that particular building code.