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Appeals Court Upholds PA Home Education Law
Howard Richman, 5/18/2010

[Reprinted from Issue 104, Fall 2008, issue of PA Homeschoolers]

In the Spring of 2004, Home School Legal Defense Association (HSLDA) began filing suits in Pennsylvania state courts on the behalf of homeschooling families under Pennsylvania’s Religious Freedom Protection Act (RFPA) of 2002. The idea of the initial suits was to open up an alternative to the compulsory education law that would apply just to religious homeschoolers.

However, when writing up the court case, HSLDA decided to try to get the entire home education law declared to be unconstitutional, holding that the PA Home Education Law (Act 169 of 1988) violated people’s Civil Rights, especially their right to Freedom of Religion.

All of HSLDA’s court cases in state court eventually got consolidated into a single Civil Rights Suit in the Pittsburgh Federal court where a victory would get the law declared to be unconstitutional. The Civil Rights case was filed by HSLDA in behalf of six homeschooling couples: (1) Darrell and Kathleen Combs, (2) Thomas and Timari Prevish, (3) Mark and Maryalice Newborn, (4) Thomas and Bebette Hankin, (5) Douglas and Shari Nelson, and (6) Steven and Meg Weber.

This change in the case’s goals concerned those of us who appreciate the PA Home Education Law for its protection and perks. For example, the Board of Directors of our own organization, Pennsylvania Homeschoolers Accreditation Agency, discussed the fact that a victory by HSLDA would wipe out the PA Home Education Law and thus the recognition for our diplomas.

Fortunately, HSLDA has been losing consistently in the Federal courts. In the summer of 2006, it lost in Pittsburgh and in August (2008), it lost its appeal to the Third Circuit Court of Appeals. HSLDA only has one more possible Federal Court appeal, an appeal to the United States Supreme Court. However, the Supreme Court picks and chooses which court cases it will hear, so it is unlikely that they will even hear the case.

The Third Circuit Court of Appeals closely examined the PA Home Education Law and could find no evidence whatsoever for HSLDA’s claim that the PA Home Education Law violated religious freedom. Here are some excerpts from their ruling in which they discuss what they had learned from the testimony of the various parties involved:

In practice, the school districts engage in a limited level of oversight. The school districts require a minimum of two contacts with the State during the calendar year – the submission of an affidavit at the beginning of the year and the submission of the portfolio and evaluation at the end of the year. Deposition testimony reveals that school officials do not check in on the progress of home education programs during the school year. Furthermore, all school officials deposed acknowledged that they never disagreed with or rejected an independent evaluator’s assessment of the home education program. School officials reviewed the disclosures for compliance with the statute and, if all the required disclosures were presented, the home education program would be approved….

(N)othing in the record suggests Commonwealth school officials discriminate against religiously motivated home education programs (e.g., denying approval of home education programs because they include faith-based curriculum materials)…

Parents are unable to point to a single instance in which the school districts have limited or interfered with their religious teachings or materials.

In her deposition, Shari Nelson acknowledged that her local school district never questioned or rejected her affidavits and did not interfere with her religious content choices. Mrs. Nelson noted she was never concerned that the local school district would reject her children’s portfolio if it contained work product with a religious subject matter. Similarly, Maryalice Newborn acknowledged that her local school district never questioned the appropriateness of her home education program or its content.

Parents nevertheless contend that the Commonwealth’s "subjective" and "discretionary" review over the Act 169 disclosures violates their right to control their children’s education. They insist any review of the home education programs must be purely "objective." In other words, they contend the Commonwealth usurps the religious and parental rights of parents when an official makes a limited determination of whether a child has "sustained progress in the overall program." Parents have not articulated their definition of "objective" in their brief. When questioned during oral argument, Parents’ counsel was unable or unwilling to provide a concrete explanation or example of an "objective" review. Furthermore, it is difficult to accept Parents’ assertion that review of a child’s educational progress can truly be objective. The grading of an essay, even on a pass/fail scale, will always be imbued with some element of subjectivity…

In fact, Parents are unable to point to even one occasion in which the school districts have questioned their religious beliefs, texts, or teachings.

Shortly after the decision was announced, HSLDA’s Michael Farris told the Pittsburgh Tribune Review that the six families involved in the case would appeal the decision to the U.S. Supreme Court.

So far this court case has followed the same trajectory as an earlier Civil Rights suit which claimed that the PA Home Education Law was unconstitutional. Lawvere v. East Lycoming School District wound its way through the Federal court system from 1995-1998. First the homeschooling family lost in the Middle District Federal Court. Then they lost an appeal to Third Circuit Court. Finally, the case died when the United States Supreme Court refused to hear it.

So far, all Federal courts have consistently agreed that the PA Home Education Law does not violate the U.S. Constitution because it does not violate religious freedom or any other constitutional rights. These decisions have left the PA Home Education Law intact for those homeschoolers who want to take advantage of its benefits, including recognized high school diplomas and access to school sports.

On the other hand, this decision does open one door to HSLDA. It specifically did not reject HSLDA´s claim for a possible exemption under the Religious Freedom Protection Act for those families who believe in the libertarian theology enunciated in this case: "Subjecting [parents] to the authority, oversight and discretionary review of the State violates Biblically-ordained jurisdictional lines between the family and the State."

This new theology contrasts strongly with the traditional Judeo-Christian view which protects children and ensures that they receive an education. For example, the Puritans of Massachusetts introduced a compulsory education law because of, as stated in the Massachusetts Education Law of 1642, "the great neglect of many parents and masters in training up their children in learning."

This new theology perhaps has a growing number of adherents, and the RFPA, unlike the U.S. Constitution, makes it possible to challenge any law that "Compels conduct or expression which violates a specific tenet of a person's religious faith."

If HSLDA moves their suit back to Pennsylvania courts and wins, the court case would open up a new homeschooling option for the new theology’s adherents without taking away any options from other homeschoolers.

I am very pleased with the Third Circuit Court decision. I hope that HSLDA eventually decides to move their case back to the state courts where a victory under the RFPA would open up a new option for the new theology’s adherents without taking away any of the present options from other homeschoolers.

Since this article was written, the U.S. Supreme Court has decided not to hear this case. Thus the Federal case is dead. For the latest news, should HSLDA take the case back to the PA state court under the Religious Freedom Protection Act, you can check out the HSLDA's webpage for this case.


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