Posted by Howard Richman on August 26 2009 at 21:07:34:
Mary Alice Newborn, one of the plaintiffs in Home School Legal Defense Association´s failed Civil Rights Suit against the PA Home Education Law, has filed a new suit in state court according to an article by Chris Cholodofsky that appeared on Thursday in the Pittsburgh Tribune-Review. Here is a selection:
A Murrysville couple, long at odds with the Franklin Regional School District over the home-schooling of their now-grown children, filed a lawsuit in Westmoreland County Wednesday seeking a ruling to overturn laws that give public school districts the right to oversee home education....This suit continues a long legal battle which began in the spring of 2004 when 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.Dr. Mark Newborn and his wife, Maryalice, want a local judge to find that the state lacks jurisdiction to require parents who home-school their children to submit documentation about their curriculum and to place limits on religious education....
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 lost 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….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. I have not heard yet whether or not they filed that appeal.(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.
The Third Circuit Court of Appeals did 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."
Unlike the Federal case, this suit in state court is is a win-win situation for homeschoolers. The Federal Civil Rights Case could have resulted in the PA home education law being declared to be unconstitutional which would threaten the freedom of those homeschoolers who wanted to take advantage of the pluses of the Pennsylvania Home Education Law, including recognized diplomas from homeschool organizations and access to public school activities including sports.
But if the Newborns win here, there are no negative outcomes for homeschoolers. This court case would open up a new homeschooling option for the new libertarian theology’s adherents without taking away any options from other homeschoolers.
Howard