The Home School Court Report
VOLUME XV, NUMBER 6
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NOVEMBER / DECEMBER 1999
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Cover Story
Teach Them to Dream Big Dreams: A Look at HSLDA's Conference at the Capitol

National Center Reports
In Defense of Liberty: State Rise to Protect Religious Freedom

Across the States
State by State

Regular Features
Press Clippings

Around the Globe

Active Cases

Prayer and Praise

President’s Page

L  I  T  I  G  A  T  I  O  N     R  E  P  O  R  T
Active Cases

Taylor v. O'Keefe
Filed May 2, 1997

California
Unfavorable Ruling Up for Review

Several months ago, the district court judge in Los Angeles dismissed the Taylors’ claim that their Fourth Amendment rights were violated when a social worker and two deputies coerced entry to interview the children regarding an anonymous report. The judge decided the case on the ground that the law regarding child abuse investigations was not clearly established, which entitled the officials to immunity from suit. However, in light of a new Ninth Circuit Court of Appeals ruling that the law is clearly established, the Taylors are asking the judge to reconsider her dismissal. This recent decision, Calabretta, held that it was clearly established law that child abuse investigators may not enter a private home in the absence of an emergency without consent or a warrant.

In re Heather B
Filed Oct. 7, 1999

Kansas
County Attorney Insists on Form
A county attorney corresponded numerous times with this member family and with our office in an effort to gain the member’s completion of a form detailing the home instruction program. It was his method for measuring the validity of the program. On HSLDA’s advice, our member refused to provide anything without a court order, so the county attorney filed a “child in need of care” petition. Our first line of defense is a motion to dismiss since the petition admits that the family’s private, nonaccredited school is registered with the state board of education. The only neglect alleged is the failure to cooperate with the prosecutor’s effort to verify, which is not a violation of Kansas law. In the meantime, a local municipal judge and home school mother will vouch for the legitimacy of the home school program in an effort to persuade the prosecutor to drop the petition.

Forstrom v. Byrne
Filed Feb. 5, 1998

New Jersey
Judge Orders Special Education Benefits for Home Schools

In her October 1999 decision, a superior court judge in Bergen County declared that New Jersey home school children are entitled to benefit from both state and federal funding of special education.

On February 5, 1998, HSLDA filed a lawsuit against Fair Lawn Public Schools, asking the court to declare the right of Howard and Ellen Forstrom to receive speech therapy at public expense for their seven-year-old son. New Jersey law provides speech therapy for students in nonpublic schools, but the state department of education excluded home schoolers from that classification.

The court concluded:

Since it is private and a place where mandatory elementary school requirements can be fulfilled, it is irrational and unreasonable for the defendant Department of Education to exclude home school children on the conclusory pronouncement that they do not fall within the ambit of a nonpublic school.

The Forstroms were awarded reimbursement for the three years of speech therapy they have been required to obtain privately.

In the Matter of Stumbo
Filed Sept. 15, 1999

North Carolina
Unfavorable Ruling in the Case of the Streaking Child

The Stumbo family lives on a 10-acre lot on a dead-end road in rural North Carolina. At about 7 a.m., September 9, 1999, their two-year-old daughter saw her pet kitten on the porch and went out to play with it. Unfortunately, it was time to get dressed, and like most two-year-olds, she was only skilled at the first half of that job: taking off her pajamas. Her big brother heard her as soon as she got outside, and brought her in about three minutes later. Someone called the Department of Social Services (DSS) to report a “naked white female child” in the driveway, and a social worker appeared at the home within two hours.

The social worker demanded entry into the home and individual interviews with each child without the presence of their mother. The family refused and DSS filed a petition alleging “interference with a child abuse investigation.”

HSLDA represented this family in the Cleveland County Juvenile Court on September 28, 1999. The judge ruled from the bench that social workers are not “state actors,” that a child neglect investigation is not a “search,” and that the Fourth Amendment did not provide the parents with a “lawful excuse” to refuse entry. The judge ordered DSS’s attorney to write up an order for her signature, and HSLDA made it clear that we intend to appeal as soon as the order is signed. Because of this, DSS has not yet drafted an order for the judge’s signature.

In re T.M.
Filed Oct. 25, 1999

Vermont
Truancy Case on Appeal

Karen Maple told school officials that she did not want their supervision or services in connection with the special needs of her son. Unwilling to lose control, a petition was filed in family court, at the school’s urging, alleging that her son was a child in need of care due to his truancy. Tragically, the Commissioner of Education joined this illegal band by refusing to authorize Mrs. Maple to begin home study until the special education dispute with the school district was resolved. There is no statutory authority for the commissioner’s conduct. The trial judge, however, unfamiliar with both home school law and special education law, focused at the hearing on only one point—whether Mrs. Maple’s home study program had been approved by the commissioner. Because she did not have “approval,” though illegally withheld, the trial court found the child truant and in need of care. The case is now on appeal before the Vermont Supreme Court, where HSLDA submitted an amicus curiae brief in support of Mrs. Maple.

State v. Mr. & Mrs. S
Filed Sept. 22, 1999

Virginia
Case Resolved Out of Court

These parents withdrew their children from the public school prior to the beginning of the 1999-2000 school year, but failed to provide notice of their intent to home school or to make application for religious exemption. When the parents were tardy with their paperwork, the Grayson County attendance officer filed a complaint. Home School Legal Defense Association intervened on behalf of the family and the charges were dismissed prior to the first court appearance.

State v. Mrs. S
Filed Sept. 22, 1997

West Virginia
School Board Disagrees on Certified Teacher

This Calhoun County mother is being prosecuted for violation of the state’s compulsory attendance law. The school board contends that the assessment of educational progress submitted last year is from an unacceptable certified teacher. The language statute is ambiguous as to whether the superintendent must agree upon the certified teacher. Nevertheless, the school board is insisting upon a standardized achievement test or a portfolio review from a Calhoun County certified teacher. Arraignment is set for November 3, 1999. N

P E N D I N G   C A S E S

California

Harrahill v. City of Monrovia
Filed: April 28, 1997, Los Angeles County.

Nature of Case: Five families challenged the constitutionality of the city’s daytime curfew ordinance.

Ruling: January 27, 1999, by Los Angeles County Superior Court Judge Carolyn Kuhl. The city’s daytime curfew ordinance contradicts state law and is, therefore, unconstitutional.

Status: On appeal. The city of Monrovia contends that the trial judge should have reconsidered her ruling in light of the amended, and in their opinion, constitutional ordinance. HSLDA will demonstrate on appeal that even the amended ordinance exceeds the authority of the city council and is preempted by state law.

District of Columbia

New v. Perry
Filed: January 16, 1996 (writ of habeas corpus), District of Columbia.

Nature of Case: A United States soldier who was ordered to put on United Nations uniform and to become part of UN force refused to do so, citing the unconstitutionality of U.S. soldiers donning the uniform of and fighting for a foreign government. The soldier was court-martialed.

Ruling: On November 25, 1997, the DC Circuit Court of Appeals refused to hear the case in federal court, requiring New to first exhaust his military appeals. U.S. Supreme Court denied certiorari.

Status: The case is still being appealed in the military court system.

Nevada

Hooks v. Clark County School District
Filed: January 9, 1998, District of Nevada.

Nature of Case: Home schooled child denied special education services despite federal law requiring provision of such services to “all students.” The family sued to obtain services.

Ruling: On October 23, 1998, a federal district court judge ruled that home school students in Nevada are not entitled to such services.

Status: The case is on appeal to the Ninth Circuit Court of Appeals. Our brief was filed on March 11, 1999. Oral argument has not yet been scheduled.

Note: The Nevada legislature recently changed its law to specifically allow home school students to receive special education services.

South Dakota

State v. Cutchin & State v. Nabholz
Filed: May 20, 1999, and September 8, 1999, Fall River County

Nature of Case: Parents are being prosecuted for failure to file their children's birth certificate with the school district. The statute states that the birth certificate should be filed with “the school.” Parents keep birth certificate on file at school the child attends (home school) rather than school the child has no affiliation with (public school). Parents contend school district's interpretation of statute is incorrect and that the birth certificate statute is unconstitutionally vague.

Status: Neither case has been heard.