For years the South Dakota Department of Education and Cultural Affairs, or its designee, has had the authority to visit home schools. Although some school districts opted not to enforce this policy, many other school districts continued conduct home visits. Home School Legal Defense Association has received reports from families that the public school official who performed the home visit belittled them and treated them unfairly. Some families have even been declared to be in noncompliance with the law based on an arbitrary decision of the home visitor.
HSLDA Launches a Federal Civil Rights Suit
In order to protect our member families who objected to state officials visiting their homes, HSLDA filed a federal civil rights suit in February 1993. The suit, Davis v. Newell School District, challenged South Dakota’s home visit provision as being unconstitutional. HSLDA argued that mandatory home visits violate all home schoolers’ right to privacy and their right to be free form unreasonable searches and seizures as guaranteed by the Fourth Amendment of the U.S. Constitution. In short, no state official can come into the home of any home schooler at any time unless they have a warrant signed by a judge. The South Dakota legislature exceeded their authority by giving state officials this unconstitutional right to come into the homes of home schoolers.
Shortly after the civil rights suit was filed, HSLDA learned that several other member families were being threatened with prosecution for refusing home visits. HSLDA contacted the school districts and offered to include them in the civil rights suit, whereupon they agreed not to conduct any home visits or proceed with prosecution while the suit was pending.
Legislation Introduced to Repeal the Home Visit Requirement
HSLDA’s Christopher Klicka contacted Barbara West of the Western Dakota Home Educators and Mary Sayler, a home school leader in Pierre, South Dakota, and suggested introducing legislation to repeal the home visit requirement. Attorney Klicka worked with the South Dakota leaders on drafting the legislation and Mary Sayler was able to find a sponsor for the bill; the sponsor was also the chairman of the House Education Committee.
In early February, Attorney Klicka traveled to Pierre in order to testify before the House Education Committee along with Barbara West and Bernie Schock of Sioux Falls. Their testimony was well-received and the committee voted 9-4 to pass H.B. 1260. Thanks to the efforts of many home schoolers, the bill subsequently passed by a large margin in the House.
Two weeks later, the bill was considered before the Senate Education Committee. Once again, Attorney Chris Klicka, Barbara West and Bernie Schock traveled to Pierre to testify. The response by the Senate Education Committee to this legislation was very different from the friendly atmosphere they had experienced in the House.
Attorney Klicka was grilled on the legislation and the issue of home visits for nearly an hour. The committee deferred voting on the bill until later that day. But only 6 of the 7 senators were present at the appointed time. The vote was cast and ended in a 3-3 tie. The committee again deferred the vote, this time until Saturday.
Word reached the home schoolers that the seventh senator had promised to vote against the bill. In light of this seemingly sure defeat, Attorney Klicka suggested to the South Dakota leaders that they might be able to amend the language of the legislation and thus enable H.B. 1260 to pass. The amendment states:
The secretary of the department of education and cultural affairs may inspect the records of an alternative education program with 14 days written notice if the secretary has probable cause to believe that the program is not in compliance with this section. The records to be inspected shall be limited to attendance and evidence showing academic progress.
This language appears to give the school officials the authority to inspect a home schooler’s records, but in actuality it contains “little teeth.” The term “probable cause” prohibits a school official from inspecting records based on mere suspicion or an anonymous tip. In other words, “probable cause” is a high constitutional standard which puts a heavy burden on the school officials to acquire reliable evidence before they can demand to inspect a home schooler’s records.
Similar language was introduced in Colorado a few years earlier. To our knowledge, no Colorado home schoolers have ever had their records inspected since that time because the superintendents have not been able to obtain “probable cause.” As a result, HSLDA believes that 99% of home schoolers in South Dakota will never have their records inspected by officials.
The introduction of this new language convinced two of the senators to change their position and vote for H.B. 1260.
In addition, advocates of Christian schools in South Dakota attended the Saturday hearing. They were able to convince the committee to further amend the law by deleting the requirement that instruction be provided by a “competent person.” This was another aspect of South Dakota law that was very vague; instruction had to be given by a competent teacher, but the definition of the term was left to the arbitrary discretion of local school districts.
Barbara West, Mary Sayler, and Bernie Schock had alerted the South Dakota home schoolers. Many families placed calls to their senators, and several families were able to attend the hearing.
By God’s grace, the bill passed out of the Senate Education Committee by a 5-2 vote. God had protected the home schoolers through the earlier 3-3 tie vote. The delay enabled them to offer the amendment and do more lobbying; both activities aided the passage of the bill. Within a few days the entire Senate passed H.B. 1260 and the Governor of South Dakota signed the bill into law.
We praise God that through His protection and the faithful efforts of many home schoolers, home visits in South Dakota are a thing of the past. No longer does the state have the authority to invade the privacy of home schoolers’ homes. HSLDA believes that this bill is a major step forward.
HSLDA will soon be withdrawing the Davis case since the new legislation resolves the conflict which was at issue. All the glory goes to God for His blessings on the entire legislative process.
Reasonable Testing Standard Set for Virginia
In Virginia, home schoolers who are operating under the home school law are required to have their children tested or evaluated. If a child is tested, that child had to score above the fortieth percentile. Although a great majority of home schoolers score well above the fortieth percentile, occasionally a child would not do very well on the test and would score below the fortieth percentile. In such a situation, superintendents would terminate the right of the parents to continue home educating the child.
Senate Bill 1011 was introduced by Senator Mark Early at the request of the Home Education Association of Virginia. Jim Moon, the HEAV lobbyist, and Yvonne Bunn of HEAV worked hard to get the bill up and running. Attorney Chris Klicka of HSLDA counseled HEAV and sent out an alert to all Virginia members of HSLDA to call their legislators in support of S.B. 1011.
After many hours of hard work by the HEAV legislative team and the calls of many home schoolers at the grass roots level, S.B. 1011 was passed by both houses and sent to the governor for his signature. This bill replaces the fortieth percentile with “at or above the fourth stanine.” This simply means that a child only has to score at or above the 23rd percentile. According to the testing curve as established by the Psychological Corporation and other test manufacturers, a child who scores from the 23rd percentile to the 78th percentile is considered average and is not in need of any remedial help. Lowering the standard to the 23rd percentile will discontinue the discrimination that home schoolers have been facing in the state of Virginia. HSLDA hopes this legislation will catch on in West Virginia and other states where the cut-off score has been set above the 23rd percentile.
S.B. 1011 also exempts home school children who are not 6 by September 30 from any testing requirements. In addition, S.B. 1011 provides a one-year probationary period with a remediation plan. This simply allows parents to continue home schooling their children for an additional year if their child scored below the 23rd percentile. This is similar to other states and would allow parents to get their children's scores up and not have their rights to teach their children terminated.