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by Perry A. Zirkel For all but a brief period when she was in elementary school, Dennis and Lucy Swanson have home schooled their daughter Annie, as permitted under Oklahoma law.(1) During the second semester of the 199394 school year, Guthrie School District permitted Annie to enroll in two seventh-grade classes - vocal music and study skills lab - at Guthrie Junior High School. The superintendent at that time also allowed her to pre-enroll in three eighth-grade classes, including vocal music and computer math, for 1994-95. He did not consult or inform the school board. Before the 1994 school year began, a new superintendent, Don Bowman, informed the Swansons that they would have to take their request for Annie to attend part-time to the board. On 23 August 1994, they presented their request to the board at a special meeting. The board members voted that Annie must enroll as a full-time student if she wished to attend the junior high before a policy was in place and that action on such a policy would be tabled until their regular meeting on 12 September 1994. On 12 September, the board adopted a policy that required all students enrolled in the Guthrie Public Schools to attend on a full-time basis. On 17 October, at the request of the Swansons for reconsideration, the board held a special meeting to allow the Swansons' attorneys to submit additional arguments and materials in support of their position. After the hearing and executive-session deliberations, the board again voted to adopt the same policy, with the following additional proviso: "In the event that the State Department of Education advises us that part-time students can be counted for state aid purposes, the Board will reconsider this policy." The Oklahoma education department calculates the state aid available to each school district on the basis of the number of full-time student enrollees; its regulations provide that part-time students may not be counted for this purpose. On 17 April 1995, the Swansons filed suit against the district in federal court, claiming that the board's denial of their request violated several state and federal constitutional rights, including Annie's right to a free public education, their parental right to direct her education, and the family's right to free exercise of religion. They also claimed a violation of the federal Religious Freedom Restoration Act and of the state governmental tort claims act. In June 1995, after a heating, the court rejected the Swansons' request for a preliminary injunction and reserved the matter for further deliberations. On 30 September 1996, the court granted a summary judgment for the school district as to all the Swansons' claims.(2) First, as to the Swansons' claim that the district had denied Annie "the fundamental right to a free public education and all of the profound interactive experiences refused to "judicially abrogate the equivalency requirement for home schooling and replace it with an absolute right to use the public school to supplement the home education program." In effect redirecting them to the legislature or the state education department, the court explained that the Swansons had not provided express legal authority to support their purported substantive right to "'pick and choose' what courses Annie will take in the public schools." Alternatively analyzing their first claim as one for procedural due process, the court concluded that, to whatever extent they had showed a property right to a free part-time education, the district had afforded them all the due process that was required at the first and second September hearings of the board. Second, the court similarly rejected the Swansons' overlapping claim of a "fundamental right to direct Annie's education, to provide her with a well-balanced education consisting, in part, of part-time attendance at the public school." Although acknowledging that the Swansons have a constitutional right to direct their child's education, the court explained that this right is neither absolute nor does it specifically provide free part-time education. The board's policy of full-time attendance had not, in the court's view, infringed in any way their "right to direct Annie's education by home schooling her." Third, the court rejected the Swansons' First Amendment free-exercise-of-religion claim on several grounds. The threshold requirement for such a claim is the showing of a basic religious tenet or belief. The Swansons' professed "religious convictions . . . to educate their child at home by using Christian educational tools" were just the opposite of a cardinal religious belief requiring Annie to attend public school on a part-time basis. Another essential element for a free-exercise claim is governmental compulsion to do an act or affirm a belief forbidden by one's religion or, conversely, compulsion to refrain from doing an act or avowing a belief required by one's religion; yet the Swansons had not shown any such compulsion. Similarly, the court rejected the Swan-sons' claim under the Religious Freedom Restoration Act, which Congress passed in 1993 to restore the prior judicial interpretation of the free-exercise clause.(3) The missing essential elements were not only a threshold religious belief but also a substantial governmental burden. The Swansons failed to establish, by a preponderance of the evidence, that the district's denial of their request had substantially burdened the mandates of their religion. As with their free-exercise claim, in the absence of these threshold requirements, the court did not find it necessary to pursue the subsequent elements of whether the defendant district had a compelling interest and, if so, whether it had adopted least-restrictive means. Finally, the court found that the Swansons had effectively abandoned their state claim under the governmental tort claims act by failing to respond to the defendants' pertinent arguments. The parents have filed an appeal with the 10th Circuit. The odds are against them, for the trial court's decision is in line with the general constitutional trend(4) - which is not without occasional exceptions(5) - that disfavors home-schoolers' claims based on First Amendment free exercise and 14th Amendment parental liberty. Their best chances have been at the political level, in terms of obtaining more favorable state legislation and local policies. This case is of particular interest because it focuses not on obtaining or expanding the exemption for home instruction but rather on having access to selected parts of the public school program. The next step, debated at the school district or state legislative level in various jurisdictions but not yet subject to published court decisions, is the home-schoolers' attempt to have access to extracurricular activities.(6) At a time when home education is waxing(7) and school budgets are not, these cases and controversies are bound to increase. The specific issue and its attendant arguments appear to fit more appropriately and fare better in state and local forums of legislative policy making than in federal courts for constitutional decision making. Attorney Todd McKinnis, who was the primary legal counsel for the Swansons, points out that the parents pay ad valorem property taxes that go in part to the school district. He argues, "What most disturbs the parents is that Oklahoma's constitutional provision for free public education, with an agrarian tradition of and no express exclusion for part-time attendance, is being contravened by a state funding formula based on full-time attendance." Attorney Jerry Richardson, who is the lead counsel for the district in this case, counters that, although the funding statute was a consideration for the board, its primary concern was the "slippery slope" of surrendering its authority to individual parents. "The board recognizes the right of parents to home school their children," he explains, "but that right does not extend to eating their cake and having it too." 1. The Oklahoma courts have interpreted the state constitutional provision for "other means of [compulsory] education" to include home instruction so long as it is equivalent to public or other school attendance. Wright v. State, 209 P.2d 179 (Okla. App. 1922). 2. Swanson v. Guthrie Indep. Sch. Dist. No. I-1, 942 F. Supp. 511 (W.D. Okla. 1996). I obtained supplementary information via telephone interviews on 24 January 1997 with Todd McKinnis and Jerry Richardson, the primary attorneys for the plaintiff family and the district defendants respectively. 3. This legislation was a response to a Supreme Court decision that had lowered the governmental burdens under the free-exercise clause. Employment Div. v. Smith, 494 U.S. 872 (1990). 4. See, for example, Perry A. Zirkel and David Rubin, "Home Schooling," in Religion, Education, and the U.S. Constitution (Washington, D.C.: National School Boards Association Council of School Attorneys, 1994), pp. 29-48. For a more recent example, see Battles v. Anne Arundel Sch. Dist., 907 F. Supp. 471 (D. Md. 1995). 5. See, for example, Perry A. Zirkel, "Home Sweet . . . School," Phi Delta Kappan, December 1994, pp. 332-33. The two-family case described in this column in the January 1991 Kappan ended, on appeal to the Michigan supreme court, with a First Amendment free-exercise ruling in favor of one family and a 14th Amendment parental-liberty ruling against the other family. People v. DeJonge, 501 N.W.2d 127 (Mich. 1993); and People v. Bennett, 501 N.W.2d 106 (Mich. 1993). 6. Seven states - Arizona, Colorado, Florida, Idaho, Iowa, Oregon, and Washington - have reportedly enacted legislation requiring access for home-schoolers to public school extracurricular activities (telephone conversation with Christopher Klicka, senior counsel for the Home School Legal Defense Association, 27 January 1997). In the absence of such a statute or at least an interscholastic athletic association policy, home-schoolers are without a legal entitlement. See, for example, Bradstreet v. Sobol, 650 N.Y.S.2d 402 (App. Div. 1996). 7. The National Home Education Research Institute estimates an increase from 92,000 children being schooled at home in 1983 to 900,000 in 1996. See Jeff Archer, "Today, Private Schools Span Diverse Range," Education Week, 9 October 1996, p. 15. Meanwhile, the membership of the Home School Legal Defense Association has grown from 2,000 (staff of 2.5) in 1985 to 52,000 (staff of 50) in 1996 (telephone conversation with Christopher Klicka, 27 January 1997). PERRY A. ZIRKEL is Iacocca Professor of Education, Lehigh University, Bethlehem, Pa.
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