The Washington Times
October 25, 2004

Washington Times Op-ed – Prosecutions Threaten Parents' Rights

by J. Michael Smith
HSLDA President

A frequent question asked by those who know the purpose of the Home School Legal Defense Association (established in 1983 to advance and defend the God-given right of parents to teach their children at home), is what type of cases we handle in light of the fact that home-schooling in some form is now legal in every state.

Two basic types of cases that we handle on behalf of home-school families are cases defending the right to home-school and situations in which home-schoolers receive unequal treatment.

Despite the fact that, from a legal perspective, it is easier to home-school than it was in 1983, home-schooling families still face prosecution and/or educational-neglect accusations, which could result in their freedom to home-school being terminated.

These types of cases are more frequent in states where the home-school law is relatively burdensome. Two of those states are New York and Pennsylvania.

One family in New York was recently taken to court on accusations of neglecting the education of their children because they failed to submit the initial papers required by law in a timely manner.

Social services attempted to show that the children would receive better instruction in a public school. After the court heard the evidence from both sides, the case was dismissed.

In Pennsylvania, several families who are home-schooling for religious reasons have had truancy charges filed for failing to comply with the Pennsylvania home-school law. These families are claiming that the law in Pennsylvania burdens their practice of religion.

The Religious Freedom Protection Act (RFPA), which was passed into law in the state in 2002, provides that if a law interferes with an individual's exercise of religion, the burden shifts to the state of Pennsylvania to demonstrate that the law is of the highest importance to advance a legitimate government interest and is the least restrictive means of achieving that government interest.

The HSLDA has filed a lawsuit on behalf of several families being prosecuted for truancy or facing truancy charges. The school districts threatening prosecution or that have initiated prosecution are the defendants. It is our hope that these cases can be tried quickly and that there will be a speedy decision establishing the freedom to home-school pursuant to the RFPA.

A second type of litigation the HSLDA handles typically involves the denial of benefits by a governmental agency because a child is being home-schooled rather than being enrolled in a conventional school. The typical areas where this occurs are Social Security, veteran and state welfare benefits.

The central issue is how to define what an "educational institution" is, or how one defines a "school."

For example, the Veterans Appeals Board in Wisconsin denied monetary benefits to a family whose child was older than 18. The federal regulations provided for continued benefits as long as the child was a member of the veteran's household and pursuing a course of instruction at an approved educational institution.

The child continued to be home-schooled past his 18th birthday so he could complete high school at home. The family was in compliance with the Wisconsin home-education requirements. Therefore, we argued that the home-school program met the educational-institution definition.

When the appeals board ruled against the family, the family appealed to the U.S. Court of Appeals for Veterans Claims. The court concluded that the definition of an educational institution is an organization that offers a course of instruction to students who meet its enrollment criteria.

The court found that the Board of Veterans Appeals was wrong in its decision and remanded the case to the board to reassess its position. There are veteran's-benefits cases pending in Indiana and Iowa as we await the final decision in Wisconsin.

On the local level, three county departments of human services in California have denied benefits to home-schooling families. They concluded that the families did not comply with the compulsory-attendance law.

To receive benefits for the child, the child must be enrolled and in regular attendance in a school. The families appealed the decisions to a hearing officer.

In the two cases that have been decided, both hearing officers determined that the human services department had failed to provide in writing a policy establishing what constituted a "legal school."

Benefits were reinstated, and neither county has sought further action to terminate benefits.

California is one of the states that does not have a specific home-school law. However, like several other states, home educators comply with the private-school law. Not all departments of human services or school districts are willing to recognize the legality of this type of home-school program.

Despite the fact that home-schooling is now legal in some form in every state, there are still significant legal issues. Although home-schoolers are making great progress, there are still those yet to see merit in home education and who have the power to discriminate against home-schoolers.

Until that ends, there will always be conflicts in the interpretation of the law as it applies to home-schooling.

Michael Smith is the president of the Home School Legal Defense Association. He may be contacted at 540/338-5600; or send e-mail to media@hslda.org.