The Washington Times
October 10, 2000

Legal Challenges Still Threaten Parental Rights

By Michael Farris
The Washington Times
October 10, 2000

Two recent court cases sadly demonstrate that the rights of home-schoolers still come under attack despite greater acceptance of the right of parents to educate their own children.

On Sept. 21, the U.S. Court of Appeals for the Ninth Circuit in San Francisco issued a decision sanctioning what amounts to open discrimination against home-school families with special-needs children.

The court ruled that if home-schools are treated as private schools under state law, then the children qualify for special-needs services. But if home-schooling is treated as a separate category in the state compulsory attendance law, then these students cannot receive special-needs services.

This interpretation means that, according to the ninth circuit, home-schools are eligible to receive services in states that regard home-schools as private schools. But home-schools in states that do not regard them as private schools cannot get special-needs services because of a definitional quirk in state law.

This state-by-state discrimination was sanctioned by a ruling from the U.S. Department of Education. However, the department utterly failed to give any notice to Congress that special-needs programs were to be made available to all children with disabilities.

It is conceivable that Congress would vote to disallow special-needs benefits in all states. But does any rational person believe that members of Congress would deliberately enact a rule that says home-schools that are considered private schools get services, but all others cannot get benefits? No congressman or senator in a state that doesn’t regard them as private schools would sanction such a plan even if they might vote for a general ban on help for all home-school students. Such state-by-state discrimination would never get out of committee, much less get signed into law.

Home School Legal Defense Association is filing a motion for reconsideration to ask the full Ninth Circuit to overturn this inconceivable decision by a three-judge panel. The Supreme Court comes after that. But we will also ask Congress to clarify the federal law so that when it says that all children with disabilities should be served, home-schoolers are included.

We will work hard to end this blatant discrimination against children with disabilities whose only crime is that they happen to live in the wrong state while being taught at home by loving parents.

On a happier note, three home-school families in West Virginia won an important low-level victory in a case that was potentially the most dangerous attack on home-schooling freedom in the past 17 years.

In the 1999-2000 school year, the Calhoun County School District began a policy of demanding that home-schooling families submit to additional requirements not sanctioned by state law—the right of the superintendent to reject narrative reviews from certified teachers, the right to require an oral defense of the plan of instruction before the school board, and the right to criminally prosecute parents whose notice to home-school is rejected.

On behalf of these three member families, HSLDA filed a lawsuit and obtained a preliminary injunction preventing the district from following up with threatened criminal prosecution until the legality of the district’s extra-legal demands could be determined.

In the midst of the litigation, however, the school district shifted its position. It dropped all but one of its original list of local demands, and it added another that turned a relatively routine case into what I believe to be the most important case in the history of the HSLDA.

Like most other states under the pressure of Goals 2000, West Virginia has adopted a massive set of learning standards that coerces local school districts to follow a highly detailed set of curricular standards controlling every grade and every subject. The book that contains the Instructional Goals and Objectives for West Virginia Schools is a massive 232 pages.

Calhoun County demanded that home-schooling families go through their textbooks and lessons and ascertain whether their curriculum was just the same as the public schools detail-by-detail. This task would take hundreds of hours to complete for just one home-school student. My family, with six actively home-educated children, would require six months of full-time work by both my wife and me just to make this initial review of the materials.

After the review, if the school district determined there was not enough detail-by-detail sameness, the right to home-school would be denied.

The only practical way to comply with this policy would be to buy and use the same textbooks that are in the Calhoun County public schools. This kind of control of home-schooling curriculum had never been previously attempted in any state in the history of HSLDA. It was an attempt to impose the National Education Association’s long-standing policy position that home-schoolers should be forced to use the public school curriculum.

One of the main advantages of home-schooling is it offers an alternative to public schools. When their textbooks teach look-say, we want the option to teach phonics. When their books disparage our Founding Fathers, we want to be able to teach that they started the greatest experiment in liberty in human history. When their books teach that frogs turn into princes if you give them enough time, we want the freedom to teach that we are created in the image of God.

When Calhoun County tried to effectively squelch these parents’ educational options, HSLDA shifted into high gear. We issued subpoenas for both the state and local superintendents to document the case history, showing that this was a misuse of the state standards never envisioned by the state department of education nor ever sanctioned by state law.

After our subpoenas were issued, the school district blinked. The district revised its policy yet again. All illegal demands, including the demand for detailed control of home-schooling curriculum, were dropped. Both the families and our legal team were relieved. This fight will be resurrected somewhere else at some other time. We’ll be there to counterattack when it happens.

Michael Farris is the father of 10 home-schooled children and chairman of the
Home School Legal Defense Association

Copyright 2000 News World Communications, Inc. Reprinted with permission of The Washington Times. Visit our web site at http://www.washtimes.com.