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10/1/2009 - October 2009 SLI Educational Update - Home Schoolers are Under Attack for their Christian Faith - But Not By Educators

AN EDUCATIONAL UPDATE FROM

THE SOUTHEAST LAW INSTITUTE™, INC.

To: SLI Supporters

Date: October 2009

From: A. Eric Johnston

Re: Home Schoolers Are Under Attack For Their Christian Faith – But Not By Educators

The overwhelmingly predominant reason that parents choose home schooling as the type education for their children is because of their Christian faith. There are other reasons such as a lack of a good public school, church school or other private school in a community. The child may have special needs that cannot be addressed adequately in a public school setting. The child may have health issues that impair his ability to keep up with school work or be among others. The family may not have funds for nonpublic education. We have provided assistance in each and every one of those type of situations.

What we are seeing on a reoccurring basis is the issue of home school raised in a domestic related situation. That is, when the parents are divorced or separated and there is animosity between them. The bad facts of a domestic situation can create a bad legal precedent. Lawyers always say that bad facts make bad law. We must be particularly conscious of this in the home school environment in Alabama, as well as the rest of the nation.

The basic right to choose the method of education belongs to the parent. It is a constitutional right first explicitly stated in Meyer v. Nebraska, 262 U.S. 390 (1923) when the United States Supreme Court found a parent’s liberty interest guaranteed by the Fourteenth Amendment to be violated when a parochial school was denied the right to teach a foreign language to its students. The court said that “it is the natural duty of the parent to give his children education suitable to their station in life.”

Relying on Meyer, the United States Supreme Court again addressed the issue in Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925). An Oregon law required children to attend only public school. A religious school and a military academy challenged the law. The court said “under the doctrine of Meyer [the state’s action] unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of their children . . . . The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

Home schooling laws vary from state to state. In Alabama, the ability to home school has been centered mostly on the church model with oversight of satellite programs. That has worked very well and we have seen a multitude of conscientious parents who have educated their children beyond the norms of most public schools.

In Alabama, parents may choose from among public, private, church, boarding, home tutor, and home school situations. Most education authorities have recognized this right and they are not the problem. The cases we see typically involve a disgruntled noncustodial parent in a divorce situation claiming that the custodial parent’s choice of home schooling is somehow destructive of the child’s needs. The most egregious example of this is a recent case in New Hampshire. In a domestic case, the mother’s choice of home schooling because of her Christian religious beliefs was attacked by the judge. The judge felt that the child “appeared to reflect the mother’s rigidity on questions of faith . . .” and the child would be “best served by exposure to different points of view . . . .” The court appointed guardian for the child was not interested in hearing about the “Christian-based” education. It appears the system not only violates the constitutional rights of the parent to choose, but attacks Christianity as, at least, irrelevant. As one of the attorneys consulted in the case stated “what if this were Muslims who don’t want their children exposed to infidel thoughts?” I am sure we would see quite a different approach.

Domestic judges must weigh the equities of competing estranged parents, but they must not attack a parent’s choice of education for his or her child based on religious purposes. If we remind ourselves of what Meyer and Pierce said, it is the duty of the parent to choose education and to recognize and prepare their child for additional obligations in life. Divorce situations cannot change the constitutional rules of parental choice and upbringing. Normally, custodial parents are charged with the obligation of making those choices. That is either done by the agreement of the parties when they obtain the divorce, or on the basis of court order of which parent would be best for nurturing the child. When an estranged parent returns to court later, usually not aggrieved because of the home schooling choice, but motivated by vengeance, judges and social workers should not take his side by faulting Christian belief and concomitant action.

The cases of which we are aware in Alabama have not made egregious findings like the New Hampshire court. Some have come close. Often, there are extenuating circumstances like allegations of parental physical abuse, drug use, etcetera. Regardless of those facts and how they may influence the finder of fact, the religious basis for deciding on home schooling must not be attacked. Home schoolers need to be aware of this potential. They must avoid situations that create extraneous damaging events. They must be committed to protection of their child in acting in his or her best interests. If they do that, the choice of home schooling for religious reasons should not be the issue in the case. Judges should protect that constitutional right and decide the dispute on other relevant and valid issues. With the unparalleled growth and interference of government we are seeing today, we must remember to hold fast to basic rights and protect them, whether we are parents, lawyers, judges or social workers.

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