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New Hampshire

March 16, 2011

State Supreme Court Rules Homeschooled Girl to Stay in Public School

In a highly visible and contentious divorce case, In the Matter of Kurowski, the New Hampshire Supreme Court ruled in favor of a divorced father who wanted his previously homeschooled daughter enrolled in public school. In its ruling confined to facts and circumstances of the case, the New Hampshire Supreme Court held that a lower trial court did not exceed its “discretion” when it ordered the previously homeschooled girl to attend public school. The case turned on the court’s view that a final custody order had not been issued as to the child’s education and that because of the failure of the parents, who share joint legal custody, to agree on this matter, it was up to the lower court to determine what was in the best interests of this child.

In a unanimous opinion, the Supreme Court did not disturb the lower court’s ruling because it found that there was “an objective basis sufficient to sustain the trial court’s discretionary judgment ....” At the outset, the court noted that it was not giving an opinion as to which form of education among public, private, or homeschooling is “most suitable” for children, recognizing that “in recent years home schooling has become a widely used alternative to more traditional public or private schools ....”

While we disagree with the court’s ruling in this case, the court clearly recognized that fit parents have a fundamental right to direct the education and upbringing of their children. The court cited a string of United States Supreme Court cases from Pierce v. Society of Sisters through Troxel v. Granville noting, however, that between two divorced parents who share this identical right because of joint custody, the courts had the difficult role of making “difficult and sensitive decisions in a highly contentious atmosphere ....”

HSLDA submitted an amicus brief in this case in support of homeschooling and because of our concern that the lower court’s ruling could be perceived as creating a precedent in favor of public education over homeschooling. However, in its opinion, the New Hampshire Supreme Court flatly rejected the notion that the trial court’s ruling created any such precedent and seemed to go out of its way to confine the case to its facts and circumstances. HSLDA will oppose any efforts to wrongly use the case beyond its limited scope.

HSLDA’s attorney for member affairs in New Hampshire, Michael Donnelly, who as a New Hampshire licensed attorney submitted the amicus brief, noted that he was disappointed but not surprised by the court’s ruling.

“We are disappointed that this young girl is being forced to attend a public school over her mother’s, and reportedly her own, wishes,” Donnelly said. “However, the New Hampshire Supreme Court confined its ruling to this case and these facts, avoiding any collateral impact on the rights of other parents in New Hampshire who homeschool their children. While the lower court’s decision could have been read to create a presumption in favor of public education over homeschooling, the court emphatically rejected this notion.”

 Other Resources

Alliance Defense Fund: “NH Supreme Court Sidesteps Critical Religious Liberty Issue in Homeschooler Case”

Download a copy of HSLDA’s amicus brief (requires Adobe Acrobat Reader).