The Home School Court Report
VOLUME XV, NUMBER 1
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JANUARY / FEBRUARY 1999
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Cover Story
Home Visits Ruled Unconstitutional by Mass. Supreme Judicial Court

Special Features
A Scorecard for the 105th Congress

Another Home Schooling Statesman

National Center Reports
Vocational Education Bill Passes With Protection

Preparing for the 106th Congress

FDIC Drafts “Know Your Customer” Regulations

Children’s Scholarship Fund Moves Forward

Free Computers for Home Schoolers

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C O V E R   S T O R Y

Home Visits Ruled Unconstitutional
by Massachusetts Supreme Judicial Court

Sitting across the desk from Louis Perullo, the Assistant Superintendent of Schools for Lynn, Massachusetts, Stephen and Jeanne Pustell told him that they refused to sign the home instruction “agreement”—which included giving their advanced consent to home visits. That was 1991, and, at that moment, neither Stephen nor his wife Jeanne imagined that seven years later their right to parental liberty would be argued before the Supreme Judicial Court of Massachusetts.
The family who 'just said no' back in 1991 (L to R): Lois Jeanne, Virginia (3), Geneva (13), Stuart (6), Lydia (11), and Stephen Pustell.    In spite of the fact that both the Pustells were certified teachers, the Lynn Public Schools insisted that school officials “periodically . . . observe and evaluate the instructional process and . . . verify that the home instruction plan is being implemented as authorized by the Lynn Public School Committee.”
    Massachusetts is one of only a handful of states that still require every proposed home instruction program to be approved by the local superintendent. The particular conditions of the approval, such as number of days of instruction, subjects to be covered, and measurement of progress, are left to the discretion of the school district to ensure that all of its young citizens are being educated. The 1987 Massachusetts Supreme Judicial Court case of Care and Protection of Charles, however, held “that the approval of a home school proposal must not be conditioned on requirements that are not essential . . . in insuring that all children should be educated.”
    Home School Legal Defense Association and the Pustell family felt that the home visits mandated by the Lynn school district were not essential and, therefore, violated the parents’ constitutional right to direct the education of their child.
    “It is a chilling invasion of our constitutional freedoms to allow government agents unfettered access to our homes,” said HSLDA President Michael Farris. “The Fourth Amendment to the U.S. Constitution and Article XIV in the Massachusetts Constitution prohibit unreasonable searches of our homes without a warrant and probable cause. School officials cannot demand that parents routinely submit to warrantless intrusions into their homes in order to educate their children.”
    In 1992, HSLDA filed a lawsuit in federal court on behalf of the Pustells, asking the court to declare the home visit policy unconstitutional. But the district court refused, and held instead that the requirement was a reasonable one that did not offend the Constitution.
    Naturally, HSLDA appealed the decision to the First Circuit Court of Appeals. What happened next surprised both parties.
    The federal court of appeals abstained from ruling on the case, holding instead that the questions of the policy’s legality must first be resolved according to state laws in the state courts. It was then 1994—and the Pustells were no closer to justice than when they first refused to submit to home inspection.
In 1993, the Brunelle family joined the Pustells in their stand for freeedom against the Lynn School Committee (L to R): Jenny, Hannah (11), Becky (18), Sarah (17), Caleb (9), Mike (11), and Michael.    The Pustells were not the only family in Lynn who objected to the home visit requirement. Upon moving to Lynn in 1993, Michael and Jenny Brunelle were greeted with the superintendent’s policy of observation and evaluation. When they refused to sign the “agreement” whereby home visits would begin, the Brunelles were criminally prosecuted in Essex County for failing to cause their children to attend school. On the day of the trial, HSLDA negotiated a settlement whereby the criminal charges would be dropped provided a lawsuit was promptly filed in civil court asking a state court to declare whether the home visit policy was constitutional.
    So in November 1995, on behalf of the Pustells and the Brunelles, HSLDA filed a lawsuit alleging that the home visit policy was a violation of the state law’s protection of a parent’s fundamental right to direct the education of his child. The first judge to hear the case was the superior court judge in Salem. Despite an extensive brief on the issues, and oral argument by Michael Farris, the trial court judge upheld the school district policy. On December 17, 1997, in a 28-page opinion, the court held that requiring home visits was “a reasonable regulation to further the compelling interest of education.”
    Again, HSLDA took the case to the appellate courts. In light of the significance of the issues raised, and upon agreement of the parties, the Supreme Judicial Court accepted the case on what is called “direct appellate review.” This means that the court of appeals was bypassed in order to get the immediate attention of the Supreme Judicial Court.
    In an unanimous 7–0 decision, the Supreme Judicial Court reversed the trial judge’s ruling, holding that home education proposals “can be made subject only to essential and reasonable requirements.” Home inspections “are not essential,” the court explained, emphasizing the fact that non-institutional programs like home education cannot be measured in the same way as institutional programs.
    Mike Farris described the decision as a “death knell to home visits.”
    “It was worth waiting,” said Farris. “What we got from the court was the most insightful opinion ever written on home schooling in terms of understanding that home schools can be excellent without adhering to the rigid formalities associated with institutional schools.”
    He predicts that the ruling will have a trend-setting effect in other states as school districts and state departments of education convene to establish home school guidelines.
    The Pustells and Brunelles’ courage, determination, and long-suffering have borne fruits of freedom to be enjoyed by every home schooling family in Massachusetts, and perhaps throughout the nation.

R E L A T E D   I T E M S

The Legacy of Freedom