Judges try to snatch homeschoolers Families escape homeland to keep from losing children to state

The case name was Ellis, et. al v. O'Hara, et. al. I don't know the precise date it was filed.

The following (cached, unfortunately) site has a good summary of what happened in MO. I still think it could serve as a model for people in other states with restrictive laws.

... For over 150 years the Revised Statutes of Missouri (RSMo) have made provisions for homeschooling in one form or another. However, few people made use of those provisions until the early 1980's when dissatisfaction with the public school system's lack of academic performance and the deterioration of students' moral standards drove increasing numbers of Missouri parents to choose homeschooling.

As this grass-roots movement for homeschooling accelerated, concern grew in the minds of the public school authorities and the Division of Family Services (DFS) agents. In 1982, legislator Sandra Reeves introduced a bill that would have effectively eliminated the alternative of homeschooling. Beginning in 1983, the DFS began issuing threats to parents for educating their own children at home. These attacks continued with increasing frenzy through 1984 and into early 1985, with the conflict centering around the term "substantially equivalent."

As a result, parents were faced with the frightening prospect of losing custody of their children to the state for homeschooling, and a small number of such children were actually placed in state custody for short periods of time until legal action forced their return. The majority of these cases were handled in juvenile court with a hearing before an Administrative Judge. Because it was a hearing rather than an official court action, the parents were unable to take refuge under the provisions of the United States Constitution. They could not present evidence in their defense, call witnesses, nor claim their constitutional rights had been violated. In fact, they did not even have to be present to be convicted. Homeschooling leaders in the state encouraged homeschoolers to document all contacts with DFS agents and public school officials, and in certain instances to prepare notarized affidavits of harassing statements, actions, and threats made by such people.

These leaders began searching for an attorney who was familiar with the homeschool provisions of the RSMo and eventually selected Arnold T. Phillips of St. Louis who suggested that a search be made for other homeschooling families in the state so that a class action suit could be filed. Twenty-five dossiers documenting harassment of homeschooling parents were accumulated, complete with diaries and notarized affidavits by witnesses. These dossiers were pared down to two cases which best exemplified the situation of Missouri's home educators.

The suit was filed in late 1984 in U.S. District Court on behalf of the families of David Ellis of Augusta and Charles Bowles of Warrenton against three school superintendents, the head of the Division of Family Services, the Commissioner of Education for the State of Missouri, and twenty members of the DFS and Juvenile Court.

The suit, which became known as Ellis, et. al., Plaintiffs, vs. O'Hara, et. al., Defendants, had as its purpose to declare the Missouri compulsory education statute void for vagueness because of its use of the term "substantially equivalent" to describe the level of instruction required for children to be educated at home, and for over breadth because its applications directly restricted first amendment activity.

... On July 5, 1985, Judge F. Nangle ruled in a Federal Court Order that the portion of RSMo (1978) statute 167.031, which related to instruction at home, be void, although the Court limited its ruling only to the vagueness question. The statute had read, "...During the usual school hours which shall, in the judgment of a court of competent jurisdiction, be at least substantially equivalent to the instruction given to children of like age in the day schools in locality in which the child resides." Because there was no alternative statutory provision for homeschooling in Missouri, the Court placed the responsibility of enacting a new statute by May 15, 1986, the last date of the 1986 Missouri Legislative Session.

Missouri state homeschooling leaders held meetings between July and December of 1985 for the purpose of preparing some legislative guidelines. During the 1985-1986 session, the Missouri legislature took up several bills related to education. One of them was numbered SB 666, the content of which was quite heinous. It died a quick and merciful death, shunned even by its sponsor. Missouri State Senator John Schneider of Florissant sponsored a bill which would protect the constitutional rights of homeschoolers. Homeschoolers wanted a bill that would not only eliminate the words "substantially equivalent" but the entire phrase phrase which contained these words.

However, the proposed bill did not prevail. Four homeschooling leaders were responsible for negotiating a last minute compromise which allowed for minimal state requirements and eliminated the DFS and public school officials as investigative authorities, much to the relief of all homeschooling families. A much more contorted bill, SB 795, was passed by the legislature in the last three minutes of the last day of the 1985-1986 session. In spite of its problems, it does give complete freedom for parents to homeschool their children within certain guidelines which can be easily met by any conscientious homeschooling family.

Note from your Missouri: Some of this information was taken from "First Things First 2002: An Updated Guide for the Missouri Home Educator," published by Families for Home Education. We appreciate this resource.

Thank you very much. Here it is, from Lexis.com:

DAVID E. ELLIS, et al., Plaintiffs, v. JOSEPH O'HARA, et al., Defendants

No. 84-690C(1)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION

612 F. Supp. 379; 1985 U.S. Dist. LEXIS 18181

July 5, 1985

COUNSEL:

Arnold T. Phillips, Jr., St. Louis, Missouri, for Plaintiffs.

William D. Kimme, Washington, Missouri, William E. Cornwell, Nancie D. Algur and Margaret Keate, Jefferson City, Missouri, Denis C. Burns, St. Louis, Missouri, Brent W. Baldwin, St. Louis, Missouri, David A. Koester, St. Louis, Missouri, for Defendants.

JUDGES: Nangle

OPINION BY: NANGLE

OPINION: MEMORANDUM
This matter is now before the Court on the motion of plaintiffs for summary judgment. Plaintiffs asked the Court to declare the Missouri compulsory education statute, § 167.031 R.S.Mo. (1978) void for vagueness and overbreadth.
Plaintiffs include the parents and children of two families and an organization known as Families For Home Education (FHE). The parents are Christians who removed their children from public schools in order to pursue a course of home instruction. The parents' decision to educate their children at home stems from their belief that public education promotes teachings, ideas and values which are contrary to their religious convictions. They thus turned to home education as a means of instilling their own religious values and beliefs into their children. As a result of their actions, local school districts and various state and juvenile officials have investigated plaintiff families and have instigated proceedings against the parents for educational neglect. The ultimate sanction which the state may impose upon the parents for educational neglect is the removal of the children from their households. Plaintiffs object not only to the authority of state officials to remove children from homes, but to the investigations conducted into the instructions and curriculums offered by the parents, as well.
The plaintiffs have challenged the constitutionality of the Missouri compulsory education statute, which provides in part:
Every parent, guardian or other person in this state having charge, control or custody of a child between the ages of seven and sixteen years shall cause the child to attend regularly some day school, public, private, parochial or parish, not less than the entire school term of the school which the child attends or shall provide the child at home with regular daily instructions during the usual school hours which shall, in the judgment of a court of competent jurisdiction, be at least substantially equivalent to the instruction given children of like age in the day schools in the locality in which the child resides.
§ 167.031 R.S.Mo. (1978). Plaintiffs complain that the statute unnecessarily impinges upon their first amendment rights to direct the educational upbringing of their children and to enjoy the free exercise of their religious beliefs. They further contend that the statute leaves them vulnerable to prosecution without the benefit of adequate guidelines for their actions. Plaintiffs have attacked the statute on its face, and thus assert that their claims are ripe for summary judgment.
Vagueness
Plaintiffs maintain that § 167.031 is unconstitutionally vague because of its use of the terms "substantially equivalent" to describe the level of instruction required for children educated at home. Neither regulations nor guidelines have been promulgated to assist in the interpretation of this language. Plaintiff parents argue that they are subject to criminal prosecution with insufficient direction as to what is demanded of them. They further contend that the enforcement of the statute is left to the pure discretion of local school districts and other enforcement officials. Plaintiffs wrote to a number of local school districts charged with the task of investigating alleged cases of educational neglect under § 167.031. See § 210.167 R.S.Mo. (1984). The school districts uniformly indicated that the Missouri Department of Elementary and Secondary Education has not issued guidelines which clarify the meaning of substantially equivalent instruction. Nor have the Missouri courts shed light upon the meaning of these terms as employed in the statute.
A statute is unconstitutionally vague when it commands or proscribes conduct in terms so vague that persons "of common intelligence must necessarily guess at its meaning and differ as to its application." The vagueness doctrine also applies to statutes which lack minimal guidelines for their enforcement. The absence of sufficient guidelines allows law enforcement officials, prosecutors and judges to "pursue their personal predilections." In addition, federal courts are bound by clarifying interpretations given to statutes by state courts which remove constitutional infirmities. A more stringent vagueness test applies to statutes which affect the exercise of constitutionally protected rights and to statutes which carry criminal penalties.
In applying these principles, this challenge to the Missouri compulsory education statute on vagueness grounds commands a stringent scrutiny by this Court because the constitutional right of parents to direct the upbringing of their children and to inculcate religious and educational values in their offspring is implicated. Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925). In addition, although holding that the statute does not carry criminal penalties, a Missouri court conceded that the statute does affect the constitutional interests just described. In view of the fundamental interests implicated by the statute, this Court concludes that § 167.031 is unconstitutionally vague.
Under the Missouri scheme of legislation, cases of suspected educational neglect in the home school context are turned over to the appropriate local school district for investigation. Following the investigation, the school district has discretion to transfer responsibility of the case to the prosecutor. § 210.167 R.S.Mo. (1984). The local school district is thus initially charged with ensuring that parents comport with the requirements of § 167.031, and that children educated at home receive a substantially equivalent education to the day schools in the particular locality. Nowhere is substantially equivalent defined, however, or are regulations promulgated which clarify its meaning. Nor have the Missouri courts furnished edification regarding the meaning of the statute. In this respect, the statute subjects the exercise of a fundamental right to an unascertainable standard. The parents have not been equipped with an adequate definition of substantially equivalent to inform them of their obligations under the statute. Of even greater significance, however, is that the Legislature has not provided minimal guidelines for law enforcement. This statute represents a prime example of legislation which yields an unacceptable amount of discretion to officials charged with its enforcement. The statute, therefore, does not comply with due process requirements, and is unconstitutionally vague.
Defendants rely heavily upon Bangor Baptist Church v. State of Maine, Department of Education and Cultural Services, 549 F. Supp. 1208 (D.Me. 1982), where the court upheld a statute requiring students not attending public schools to receive "equivalent instruction" against a vagueness challenge. The court found that the term "equivalent" was not so vague that persons had to guess its meaning. The case is distinguishable from the facts of the instant case, however, because numerous guidelines and regulations were established describing the enforcement of the statute therein. In addition, the Maine education laws are more elaborate than those of Missouri, and describe public school requirements in greater detail than do the Missouri statutes. For these reasons, it is much easier to comprehend the meaning of the term substantially equivalent within the Maine statutory scheme than under the Missouri legislation. Thus, Bangor Baptist Church is not directly applicable to the instant claims.
The only other authority which specifically scrutinizes the use of the terms "equivalent instruction" in a compulsory education statute is State v. Moorhead, 308 N.W.2d 60 (Iowa 1981). In Moorhead, the state court interpreted the statute and held that equivalent instruction refers to public school instruction. There are detailed requirements for public school instruction which establish reasonable guidelines for deciphering the meaning and enforcing that statute. This Court concludes, however, that the Missouri statute is not so readily comprehensible. For these reasons, the authorities cited by defendants are not persuasive.
Overbreadth
Plaintiffs additionally argue that the statute is overbroad and should be stricken for this reason as well. Plaintiffs describe § 167.031 as being overbroad in that the statute "in all its applications directly restricts protected first amendment activity and does not employ means narrowly tailored to serve a compelling governmental interest." In considering plaintiffs' contention, this Court must essentially determine whether the statute unnecessarily impinges upon plaintiffs' first amendment right to direct the religious upbringing of their children. This Court recognizes that plaintiffs have a fundamental first amendment interest at stake in their claim, yet they concede the state has a compelling interest in insuring that children in the state receive an appropriate education. Because the statute is unconstitutionally vague, this Court need not determine whether it is as narrowly drawn as possible to avoid any unnecessary impingement upon plaintiffs' constitutional rights. Nor have plaintiffs suggested to the Court or presented evidence on how an education statute may be more closely tailored to accomplish its intended purpose. For these reasons, this Court limits its holding to the vagueness question.
In conclusion, this Court declares that portion of § 167.031 R.S.Mo. (1978), which relates to home education, void for vagueness. There is no alternative statutory provision for home education in Missouri. Plaintiffs have not briefed the issue of whether a state must necessarily provide for home education, however. Therefore, this Court transfers to the Legislature the responsibility of considering plaintiffs' continuing desire to educate their children at home.
Because the Legislature has expressed a desire to allow parents to educate their children at home, this Court shall stay the effective date of this order until May 15, 1986, which is the final date of the 1986 Missouri Legislative Session. In staying the effective date of this order, parents may continue to educate their children at home in the same manner as they are currently doing, until May 15, 1986, or until the Legislature enacts a new statute, whichever occurs first.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.