HSLDA
August 5, 2004

Court of Appeals for Veterans Strikes Down Discriminatory Policy

After more than five years of litigation over the availability of veteran's benefits for homeschoolers, Home School Legal Defense Association has won a very favorable decision on behalf of a Wisconsin member family. On July 27, 2004, the United States Court of Appeals for Veterans' Claims ruled that the Veterans Administration had incorrectly passed a regulation barring homeschooled students over 18 from the definition of "child."

HSLDA has represented veteran George Theiss in his claim for veterans' benefits for over five years now. Because Mr. Theiss is a decorated Vietnam veteran, he receives certain benefits under his military pension. To help care for his dependents, federal regulations provide for additional benefits as long as the child is a member of the veteran's household and pursuing a course of instruction at "an approved educational institution."

In March of 1998, the General Counsel for the Veterans Administration issued an official opinion that homeschooling did not count as an approved educational institution. The opinion was based heavily on the definition of "institution" from Webster's Dictionary, which narrowly defines institution as "an established organization or corporation, especially of a public character." Basing the opinion on this very restrictive definition, the General Counsel maintained that homeschooling, which is operated for only one student, was not an educational "institution."

In 1999, the Veterans Administration informed Mr. Theiss that when his son turned 18, the additional benefits would be cut off based on the General Counsel's opinion, even though Mr. Theiss was conducting a homeschool program in full compliance with Wisconsin law. HSLDA appealed the decision on Mr. Theiss's behalf, arguing that the decision went against the entire legislative scheme of veterans' benefits, which the federal courts have held is "strongly and uniquely pro-claimant." Laws that govern veterans' benefits should be interpreted to grant the benefits in favor of the claimant, not to restrict them.

The Board of Veterans' Appeals denied our petition, basing its decision on both the General Counsel's opinion and on the federal regulations that had been amended in accordance with that opinion without notice for public input or comment. HSLDA filed an appeal with the United States Court of Appeals for Veterans Claims to end this discriminatory practice. Litigation Counsel James R. Mason III argued in front of the Court on September 8, 2003.

On July 27, 2004, the Court of Appeals handed down a very favorable ruling. It strongly criticized the General Counsel for its "narrow choice" in defining an educational institution and its failure to present a "rational, comprehensive explanation" detailing why homeschooling was not an educational institution. In addition, the Court held that the Veterans Administration had wrongly passed the regulation denying homeschoolers the additional benefits, stating that the proposed regulation should have been publicized, allowing interested persons to comment on it.

The Court remanded the case back to the Board of Veterans' Appeals to reconsider the matter without taking into account the General Counsel's opinion or the wrongly-enacted, now-invalid regulation.

HSLDA is confident that when the Board rehears the issue, Mr. Theiss and many other homeschooling veterans will be vindicated.

 Other Resources

United States Court of Appeals for veterans claims   (requires Adobe Acrobat Reader)