Ban on California's Publicly Funded Home School Program Covering Faith-Based Instruction Challenged

California's public charter school program includes schools that fund independent study home schooling. Parents may use state funds for secular educational materials, but not for religious materials.  A school staff member must approve materials purchased with state funds and must periodically review work samples to assure that state educational standards are met. California Constitution Art. IX, Sec. 8 prohibits the teaching of religious doctrine in public schools, and the California Education Code requires charter schools to be non-sectarian. Suit was filed this week in a California federal district court seeking an injunction that will allow parents to spend instructional funds for faith-based materials and will require schools to accept work samples that derive from a faith-based curriculum.  The complaint (full text) in Woolard v. Thurmond, (ED CA, filed 10/11/2023), alleges that applying state law to prevent disbursement of instructional funds for faith-based materials and refusal to accept faith-based work samples violates plaintiffs Free Exercise and Free Speech rights. First Liberty Institute issued a press release announcing the filling of the lawsuit.

Oklahoma Passes School Choice Tax Credit Law

Last Friday the Oklahoma legislature completed passage and sent to the governor for his signature HB1934, the Oklahoma Parental Choice Tax Credit Act (full text). The bill creates a tax credit against Oklahoma state income tax for tuition and fees paid for private school education. The credit varies from $5000 to $7500 depending on the household income.  It also provides a $1000 tax credit for home school expenses. The bill imposes annual caps on the amount of credits the state will recognize, which increases from $150 million to $250 million in 2026. Governor Kevin Stitt issued a press release celebrating the legislature's passage of the law.

Yeshivas Win Partial Victory In Challenge To New York's Substantial Equivalency Rules

In In re Parents for Educational and Religious Liberty in Schools v. Young, (Albany County Sup.  Ct., March 23, 2023), a New York state trial court gave a partial victory to Orthodox Jewish day schools (yeshivas) that are challenging the state's "substantial equivalency" regulations. The regulations require that students in non-public schools receive instruction in required subject areas that is substantially equivalent to instruction received by public school students in the same district. While the court rejected petitioners' constitutional challenges, it held that the Department of Education exceeded its authority in promulgating rules that require parents to withdraw their children from schools that do not meet the substantial equivalency standards and enroll them elsewhere, and which allow local school authorities to shut down schools that do not meet the required standards. The court said in part:

[T]the statutory scheme places the burden for ensuring a child's education squarely on the parent, not the school.... [T]he Compulsory Education Law does not authorize or contemplate the imposition of penalties or other consequences upon a nonpublic school that has been found not to provide substantially equivalent instruction.

... [T]the court finds that respondents lack authority to direct parents to completely unenroll their children from nonpublic schools that have been determined to fall short of meeting each and every substantial equivalency criteria, nor do respondents have authority to direct the closure of such schools. Rather, the parents should be given a reasonable opportunity to prove that the substantial equivalency requirements for their children's education are satisfied by instruction provided through a combination of sources. For example, parents should be permitted to supplement the education that their children receive at a nonpublic school with supplemental instruction that specifically addresses any identified deficiencies in that education, such as by providing supplemental home instruction in compliance with the home schooling regulations as set forth in 8 NYCRR 100.10. Therefore, if a student is found to be attending a school that is not deemed "substantially equivalent", the home schooling rules shall apply if the parent chooses to keep their child enrolled at that school. As such, the parent may submit a plan that utilizes said school along with supplemental education as needed to create a satisfactory Individualized Home Instruction Plan....

Hamodia reports on the decision. [Thank to Thomas Rutledge for the lead.]

Attack On Connecticut COVID-19 Orders Rejected

In Murphy v. Lamont, (D CT, Aug. 3, 2020), a Connecticut federal district court rejected a wide-ranging constitutional attack, including 1st Amendment challenges, on the COVID-19 orders of Connecticut Governor Ned Lamont. The court found that plaintiffs lack standing, saying in part:

... Barnes asserts that he is “impeded from attending church.”... However, because no Executive Order prohibits religious worship, Barnes cannot show that the conduct he wishes to engage is “proscribed by statute.” ... Furthermore, Barnes alleges no facts as to his intention to attend religious services or any specific occurrence where he was prevented from doing so.

Murphy also asserts an injury to his religious liberty, along with his freedom of association. He alleges that, “[b]efore the illegal lock down orders, my family participated in a homeschooling group, in which we met in a church. We have not met since this lock down.”... Like Barnes’ allegations, these allegations are too vague to establish an injury-in-fact.

The court also found that plaintiffs were unlikely to succeed on the merits, saying in part:

Executive Order 7TT limits attendance of places of worship to 25% of building capacity or a maximum of 100 attendees, whichever is fewer.... In South Bay United Pentecostal Church, 140 S. Ct. at 1613, the Chief Justice, in his concurrence in the judgment denying a temporary injunction, found that those same restrictions (in California) did not violate the Free Exercise Clause. The court reaches the same conclusion here. The challenged Executive Orders are plainly neutral, and plaintiffs have not proffered any evidence to suggest that the Governor has any animus towards religious organizations. Indeed, more severe restrictions apply to secular gatherings.

European Court Upholds Removal of Children From Home Schooling

In Wunderlich v. Germany, (ECHR, Jan. 10, 2019), the European Court of Human Rights in a Chamber Judgment upheld Germany's three-week removal of four children from their parents' home after the parents insisted on home schooling them and refused to send them to state schools.  The court held that there was no violation of Art. 8 of the European Convention on Human Rights (Right to Respect for Private and Family Life). the Court said in part:

The Court finds that the enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was a relevant reason for justifying the partial withdrawal of parental authority. It further finds that the domestic authorities reasonably assumed – based on the information available to them – that children were endangered by the applicants by not sending them to school and keeping them in a “symbiotic” family system.

ADF issued a press release announcing the decision.

Texas Supreme Court: Challenge To Home-School Rules Does Not Require Exhaustion of Administrative Remedies

In McIntyre v. El Paso Independent School District, (TX Sup. Ct., June 24, 2016), the Texas Supreme Court in a 6-3 decision held that parents of home-schooled children were not required to exhaust administrative remedies before they challenged the constitutionality of state law provisions mandating curricular standards for home schools.  The parents alleged that their rights to due process, equal protection, and free exercise of religion under the Texas Constitution and U.S. Constitutions were infringed, along with their right to privacy under the Texas Constitution. According to the majority:

The McIntyres claim that the District and its attendance officer unconstitutionally investigated them and filed criminal complaints against them. They do not claim to be aggrieved by the school laws.

The dissent by Justice Green, joined by Justices Johnson and Brown argued:

[T]he Court today ignores our rules of statutory construction and holds that homeschool parents can avoid that exhaustion requirement simply by cloaking their school-law claims in constitutional language.

According to a Christian Science Monitor report on the decision, the parents stopped teaching their children a standard curriculum because they believed they would soon be "raptured."

Texas Court Says There Is No Absolute Right To Home School Free of State Regulation

In El Paso Independent School District v. McIntyre, (TX App., Aug. 6, 2014), home-school parents challenged the right of the state to investigate the curriculum which they utilized. It was claimed that the McIntyre children did little school work, and that one of the children said they did not need to because they were going to be raptured. When another of the children ran away at age 17 so she could attend school, the parents refused to provide the school district with any information.

Most of the appellate court's lengthy decision dismissed various claims by the parents on procedural and jurisdictional grounds, including failure to exhaust administrative remedies, election of remedies and qualified immunity. Reaching the parents' 1st Amendment free exerrcise claim, the court rejected the parents' argument that the U.S. Supreme Court's 1972 Yoder decision gave them the right to withhold their children from any type of institutional school beyond the eighth grade. The court noted tha the situation of the Amish in that case was unique and observed:

No parents have ever prevailed in any reported case on a theory that they have an absolute constitutional right to educate their children in the home, completely free of any state supervision, regulation, or requirements. 

Inter-School Athletic Eligibility Rules Do Not Violate Free Exercise Rights of Home-School Family

In Chapman v. Pennsylvania Interscholastic Athletic Association, (MD PA, June 18, 2014), a Pennsylvania federal district court rejected a claim by the parent of a home-schooled student that rules on eligibility to participate in inter-school athletics violate her free exercise rights, as well as her equal protection rights and the right to direct the education of her son.  At issue is a rule that allows home-schooled students to participate only on teams of their local public school, and not on a parochial school team.  Plaintiff claimed that the rule prevented "the home-schooler who is committed to play in a God-centered environment" from doing so. The court found that the rule is neutral and generally applicable so that it need only satisfy the "rational basis" test, and that any burden on religious exercise is minimal.

German Home School Family That Was Denied SCOTUS Review Gets Deferred Status From DHS

Fox News reports that in a surprising development yesterday, one day after the U.S. Supreme Court denied certiorari in the home schooling asylum case of Romeike v. Holder (see prior posting), the Department of Homeland Security granted "indefinite deferred status" to the Romeike family.  This means that the German family which home schools its children largely because of the family's Christian religious beliefs will not be deported back to Germany where laws prohibit home schooling.  The Romeike family who moved to Tennessee in 2008 were originally granted asylum in 2010, but government appeals of the immigration judge's ruling led to a reversal.

Supreme Court Denies Review In Home School Asylum Case

The U.S. Supreme Court today denied certiorari in Romeike v. Holder, (Docket No. 13-471, cert. den. 3/3/2014)). (Order List.) In the case, which has been widely followed by home school advocates, the 6th Circuit denied asylum to a German evangelical Christian family that sought to remain in the United States based on a fear of persecution in Germany because of Germany's ban on home schooling. (See prior posting.)

Home Schooler Sues To Play On Christian School's Atlhletic Teams

The Central Pennsylvania Patriot-News yesterday reported on a lawsuit by the mother of a home-schooled high school freshman who wants to play on a Christian school's soccer and basketball teams.  Under the rules of the Pennsylvania Intercollegiate Athletic Association, home schoolers are allowed to play on public school teams in district in which they live. Here the parents want the boy to be able to participate on the teams of Covenant Christian Academy, also located in the boy's home district. Plaintiff says that PIAA is misinterpreting its own rules, and is also denying her the constitutional right to direct the education of her son. The suit was originally filed in state court, but defendants are seeking to remove it to federal court.

Indiana Supreme Court Hears Arguments In Home Schooling Organization's Challenge To Retaliation Finding

Yesterday, the Indiana Supreme Court heard oral arguments (video of full arguments) in a case being closely followed by home school proponents-- Fishers Adolescent Catholic Enrichment Society, Inc. v. Bridgewater. In the case, a state appeals court held that the Indiana Civil Rights Commission has jurisdiction over a retaliation claim brought after the religious-based organization (FACES) expelled a family from membership when they complained that FACES refused to make health-related dietary accommodations for their daughter at a masquerade ball it sponsored. (See prior posting.) As reported by the Indianapolis Star, FACES argues that the action by the Civil Rights Commission infringes its religious freedom and its right to determine who will be a member. The student's family argues that the case is about disability discrimination.

Appeal In Ontario Court Seeks To Enforce Quebec Foster Care Order Against Alleged Jewish Religious Cult

As previously reported, last month the insular Orthodox Jewish sect Lev Tahor fled the Canadian province of Quebec and moved to Chatham-Kent, Ontario to avoid Quebec child welfare officials.  Some charge that Lev Tahor is a religious cult under control of its leader Rabbi Shlomo Helbrans. Now the Toronto Star reports that on Dec. 4, Chatham-Kent Children’s Services asked a Justice of the Peace for a warrant that would let them carry out a Quebec court order to place 14 Lev Tahor children in foster care under the guidance of Quebec child-welfare authorities. Quebec claims neglect, psychological abuse, poor nutrition, health problems and home schooling that fails to meet provincial standards.  The Ontario Justice of the Peace rejected the application for the warrant on Dec. 7, and Ontario authorities have filed an appeal.  A brief hearing on the appeal was held Wednesday, with a full hearing scheduled for Dec. 23. Meanwhile Lev Tahor will appeal the Quebec court ruling that first ordered the children into foster care even though they had been moved to Ontario.

Insular Jewish Sect Leaves Quebec For Ontario To Escape Child Welfare and Education Officials

In Canada last Monday, 40 Orthodox Jewish families who are members of the fundamentalist, anti-Zionist Lev Tahor ("Pure Heart") sect left their homes in Quebec province and moved to Ontario to escape education and child welfare officials in Quebec. The Toronto Star reported yesterday that the evacuees, which included some 130 children, say they object to requirements that they teach a secular curriculum to their home-schooled children.  Provincial officials say their concerns were more about child neglect, psychological abuse, poor nutrition and health problems than about education.  They have forwarded evidence they collected to Ontario officials. The insular Lev Tahor sect-- whose women dress in black robes that cover them from head to toe and show only their faces-- are led by Shlomo Helbrans who some claim has created a mind-controlled cult.  Before re-establishing his group 13 years ago in Canada, Helbrans served a prison term in New York for second degree kidnapping. [Thanks to Scott Mange for the lead.]

UPDATE: According to the Times of Israel, on Nov. 26 a Quebec juvenile court judge ruled that 14 children from the Lev Tahor community are to be placed in foster care for a month and examined by doctors and psychologists. Apparently this order can be used by Ontario authorities to get a court order to return the children to foster care in Quebec.