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VOLUME XXI, NUMBER 1
- disclaimer -
January / February 2005


FEATURES
State Legislation Summary—2004
2004 art contest

Our Judges

Winners of the three categories
PHC beats Oxford in debate
GenJ: Into the land

What are Generation Joshua & HSLDA PAC?

Sodrel: One very tight race . . .

Davis: In a dead heat

DEPARTMENTS
From the heart

2004 in review

From the director

Impact of the fund

Mission statement of HSF
Across the states
Active cases
Members only
About campus
President's page

ET AL.

On the other hand: a Contrario Sensu

HSLDA social services contact policy/A plethora of forms

HSLDA legal inquiries

Prayer & Praise


 «
  LITIGATION SUMMARIES  

» 


ACTIVE CASES

Arizona

Widow's SSA benefits reinstated

Case: Grove v. Social Security Administration
Filed: 06/02/2003
On October 24, 2004, Home School Legal Defense Association received a favorable decision ending the federal government's discrimination against a widow for homeschooling her son.

Mrs. Grove has educated her son Andrew* under Arizona's homeschool law for many years. After her husband passed away, she began receiving Social Security benefits for herself and Andrew so that she could stay home and teach him.

But on June 2, 2003, the Social Security Administration (SSA) cut off Andrew's benefits, claiming that he did not qualify because he was not "attending an elementary or secondary level school which has been approved by a State or local government." Because this decision was a clear misapplication of federal law and SSA policy, which allow homeschoolers to receive benefits if their programs are in compliance with state law, HSLDA assisted Mrs. Grove in filing an appeal.

Over a year later, the SSA finally agreed that Andrew's benefits should not have been cut off, since he was legally homeschooling. It has agreed to continue the Social Security benefits as required under federal law.

Missouri

Family challenges "Child Find" provision

Case: Fitzgerald v. Camdenton R-III School District
Filed: 12/10/2002
After years of disagreement with their school district over the provision of special education services, the Fitzgeralds chose to exercise their constitutional and statutory right to homeschool their 11-year-old son, Sean.* On November 13, 2002, the Fitzgeralds notified the Camdenton R-III School District in writing of their decision to homeschool Sean and waived his right to a Free and Appropriate Education (FAPE).

Mr. and Mrs. Fitzgerald had their son's special needs privately evaluated upon his withdrawal from the public school and they were providing special education services for him accordingly. Still, Camdenton R-III was not satisfied. The district insisted that, even though Sean was being homeschooled, it would not relinquish its responsibility under the federal Individuals with Disabilities Education Act (IDEA) to evaluate him for special needs.

Under its "Child Find" provision, IDEA requires that states have policies and procedures in effect to ensure that all children who are in need of special education and related services are "identified, located, and evaluated" in order to make a FAPE available to them. The FAPE, another provision of IDEA, is designed to ensure that special needs children have access to an education that suits their needs. This provision includes children with disabilities who are attending private schools as well as those attending public schools. However, IDEA does not eliminate the right of parents to refuse to allow their child to participate in such special education activities.

On December 10, 2002, Camdenton R-III requested a due process hearing when the Fitzgeralds refused to allow them to evaluate Sean.

HSLDA defended the family's rights before a three-member hearing panel, but the panel ruled against the Fitzgeralds, forcing them to allow the school district to evaluate their son. The panel refused to consider the federal statute governing IDEA, which does not require school districts to evaluate homeschool students for special education needs.

In response, HSLDA filed a complaint in the U.S. District Court against the Camdenton R-III School District and the Missouri Department of Education. In a very similar decision to that of the three-member panel, the court ruled in favor of the district without even addressing the constitutional questions.

On October 12, 2004, HSLDA filed an appeal to the Eighth Circuit Court of Appeals to reverse the trial court's decision. We argued that the trial court had misinterpreted the federal special education law and in so doing had violated the Fitzgeralds' parental rights, and that if the federal law allows school districts to force evaluations on parents, then the law is unconstitutional.

This case is ongoing.

Pennsylvania

HSLDA continues to battle search order

Case: In Re Petition to Compel Cooperation with Child Abuse Investigation
Filed: 03/04/2004
When a Susquehanna County Services (SCS) social worker insisted that SCS protocol required her to visit Rob and Susan Gauthier's home to complete a child abuse investigation, this HSLDA member family refused because the allegations had no connection to the home and had already been proven false. Nonetheless, the social worker filed a petition in the Susquehanna County Court on March 4, 2004, stating only that the family had refused to allow her to visit their home. Even though this did not establish "probable cause" to allow an invasion of the family's privacy, the court compelled the family to allow the home visit by actually rubber-stamping the proposed order.

HSLDA filed both an appeal of the order and a petition for a stay for the duration of that appeal, but the stay was denied at the trial level, the appeal level, and in the state supreme court. On March 19, 2004, the Gauthiers were compelled to submit to the unwanted home visit, which violated their 4th Amendment rights.

Although the home visit did take place, HSLDA continued the appeal of the original order because the case raised an important issue that could affect any other family in Pennsylvania. The issue (also raised in a previous HSLDA case, In the Matter of Stumbo in North Carolina) was that it is unconstitutional for courts to simply rubber-stamp a search order based upon a petition that does not allege probable cause for an intrusion into a home.

The appellate court faced the merits of this 4th Amendment claim on October 12, 2004, when HSLDA Litigation Attorney Jim Mason traveled to Pennsylvania to argue on the Gauthiers' behalf.

"The statutes governing child abuse investigations do not allow the courts to issue an investigative order without a petition containing evidence of probable cause," argued Mason.

The 4th Amendment and the Pennsylvania Constitution permit the issuance of a search warrant only if the petition alleges facts establishing that a search is needed to determine whether a child is at risk of harm.

"The order in the Gauthiers' case was an invalid judicial search warrant," Mason explained. "The petition against the Gauthiers did not provide these facts."

Indeed, the most obvious inference to be derived from the petition was that SCS knew that the child was not at any risk and merely sought the order to close its investigation.

Even though the social worker's petition had alleged no facts at all in support of the search warrant, the trial court ruled that no facts were necessary and relied instead on a flawed interpretation of Pennsylvania law.

"The trial court's order clearly violated the Gauthiers' 4th Amendment right to privacy," Mason stated. "A favorable outcome in this appeal is vital for a provision of accountability to Pennsylvania's courts. Families don't want this to happen again."

The Gauthiers are hopeful that a decision in their favor will help other families in Pennsylvania and around the country. HSLDA continues to fight for the 4th Amendment rights of our member families all across America as we await a decision in this appeal.

Wisconsin

Court of appeals backs HSLDA

Case: In the Appeal of George R. Theiss
Filed: Fall 1999
On November 18, 2004, the United States Court of Appeals for Veterans Claims agreed with HSLDA that homeschooling is an educational institution, making homeschooled dependents eligible for benefits even after they turn 18.

Under his military pension, decorated Vietnam veteran George Theiss receives benefits for each child that is a member of his household and is pursuing a course of instruction at an approved educational institution. But in 1999, the Department of Veterans Affairs (VA) informed Mr. Theiss that when his son turned 18, the additional benefits would be cut off even though Mr. Theiss was conducting a homeschool program in full compliance with Wisconsin law. The department's action was based on an official opinion issued in March 1998 by the VA's general counsel, which claimed that homeschooling did not count as an "approved educational institution."

HSLDA filed an administrative appeal on Theiss' behalf, but the general counsel refused to budge.

At the next level of the appeal process, a three-judge panel of the United States Court of Appeals for Veterans Claims overturned the VA's decision.

After this July 27, 2004, ruling, the VA asked the full court of seven judges to reconsider the panel's decision.

The November 18 order of the full court was unanimous in denying the VA's petition. One judge even wrote that the review should be granted—not because he wanted to rule in favor of the VA, but because he wanted to address the issue more completely so there could be no doubt that homeschooling is an educational institution!

"This is a big win for homeschoolers across the board, not just for military veterans," HSLDA Litigation Counsel Jim Mason explained. "The precedent will positively affect policy making and litigation for homeschoolers within other governmental agencies like the Social Security Administration, social services, and state or county adoption agencies."

* Name changed to protect family's privacy.