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HSLDA successfully defends family's right to home school
Filed: October 27, 2000, Logan County.
Nature of Case: One week after Mrs. D submitted a notice of intent to home school, her 14-year-old daughter, Sarah D, was summoned to district court on truancy charges. At the November 16, 2000, arraignment, District Court Judge Sue Carol Browning ordered Sarah to return to public school. Upon learning two weeks later that the girl was not re-enrolled in public school, Judge Browning promptly cited Mrs. D for contempt of court without conducting a hearing to first examine the evidence and to give the mother a chance to explain the daughter's absence. The judge then issued a bench warrant for Mrs. D's arrest without bond and a pick-up order for the child.
Immediately, HSLDA petitioned a higher court to quash this illegal order. By state law, Judge Browning should have provided notice to Mrs. D, and given her an opportunity to tell her side of the story before issuing a warrant. Ruling that Judge Browning did not follow due process as required by Kentucky state law, Circuit Court Judge Tyler Gill nullified the pickup order and arrest warrant.
Logan County public school officials continued to allege that Sarah was truant, even though Mrs. D provided the school district with a proper notice of intent to home school. Five of the eight unexcused absences alleged occurred after she began home schooling Sarah in October. Local school officials, however, remained intent on pursuing the truancy charges.
When the State's Attorney learned that state law requires proving nine unexcused absences for the charge of habitual truancy, instead of the eight alleged, he filed an amended petition alleging ten unexcused absences. The charges on the first petition were dismissed and the child was arraigned on the new charges on January 8, 2001. At the arraignment the state's attorney amended his petition a second time to include six unexcused absences from the 1999-2000 school year. Officials were desperate for a victory.
At the trial on the truancy charges, home education expert Dr. Brian Ray, testified on behalf of the family. He opined that the program of home instruction was suitable for Sarah, that she was making good progress in it, and that home education was better for Sarah's academic achievement than public education. Nevertheless, at the conclusion of the trial, the judge entered a finding of habitual truancy and ordered Sarah to attend public school until she is 18 years old. If the child violates the order she will serve seven days in juvenile detention. HSLDA immediately filed a notice of appeal and motion for stay. The judge, in open court, denied the motion for stay. HSLDA also filed a petition for a writ to prohibit the order to enroll in public school from taking effect and requested an emergency hearing. Judge Lewis, in Bowling Green, Kentucky, heard arguments via telephone conference on 2-14-01, but denied the emergency motion.
The circuit court denied the petition for writ of prohibition, because the appeal of the adjudication and disposition on the habitual truancy charges was pending on a separate track and presented some identical issues.
The circuit court heard oral argument on the appeal of the habitual truancy finding and subsequent disposition to public school. HSLDA argued that five of the unexcused absences charged against Sarah were days on which she was being home schooled. Six other days of alleged absence occurred in the previous school year, 1999-2000, for which no other child in Logan County was prosecuted this year. Prosecution for last year's absences evidences selective enforcement and vindictive prosecution that violates Sarah's civil rights. With respect to the order to attend public school, HSLDA showed the court that this ruling was an abuse of discretion because there is no support for it in the trial court record and because it is contrary to law!
Circuit Court Judge Tyler Gill of Logan County, Kentucky, reversed the habitual truancy finding against 14-year-old Sarah D. Judge Gill ruled that Sarah could not be found truant for absences before her withdrawal from public school. His decision was based upon the fact that the school district had not "reported" those absences to Sarah's parents as required by state law. It is Judge Gill's opinion that state law requires three reports of truancy (three days unexcused absence) before a child may be prosecuted. Sarah had only been reported once. Judge Gill also noted that the school district was prosecuting Sarah for the prior year's absences, something it did not do against any other child in Logan County.
With respect to the district court's view that it had the authority to determine the best place for Sarah's education to occur, Judge Gill again reversed. Judge Gill explained that unless there is evidence of misconduct or of the failure of a parent to provide for the child's education, the state does not have the right to "confiscate" the parent's fundamental right to direct the education of his child. Even where a child is found to be truant, Judge Gill held that the parent, nevertheless, retains the fundamental right to decide where that child shall be educated.
Finally, Judge Gill expressed concern that there are families using home education as a pretext for withdrawing their children from the public school. It is apparent from his decision that he believes local school officials should be doing more to monitor the progress of home educated students.
Last Updated: June 5, 2001.
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