Mom Could Lose Child Over Homeschooling

Published April 1, 2001

Section 5 of the Constitution of the Commonwealth of Kentucky states, in part, “. . . nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed . . .”–except, apparently, in the courtroom of Judge Sue Carol Browning.

Although the U.S. Supreme Court also made clear in its 1925 Pierce decision that the state has no authority “to standardize its children by forcing them to accept instruction from public teachers only,” the Kentucky District Court judge last November ordered a homeschooled teenager to attend public school, or else. When Browning found that the 13-year-old girl had not complied with her order, she issued a warrant for the mother’s arrest without bond and an order for the child to be picked up and placed in state custody.

The breakup of the family was put on hold after the Home School Legal Defense Association promptly and successfully petitioned for nullification of the judge’s order. On January 8, 2001, however, the state’s attorney amended his petition to reflect additional unexcused absences and resubmitted truancy charges. Browning again ordered the girl to attend public school, despite the fact that the girl’s mother had informed the school district last year about the homeschooling plan.

HSLDA attorney David Gordon said “there is no allegation by the school district or the State’s Attorney that there is anything deficient in the notice [of intent to homeschool] paperwork that she filed.”

“At the arraignment, I offered to put on evidence of the home instruction program,” he said. “The judge refused to hear it and simply ordered the child to enroll in public school the next day.”

According to Gordon, the judge is biased against homeschooling. In fact, Browning told the court that her own advanced degree was not enough to qualify her to educate her own child, and therefore she determined the plaintiff’s parents would not be qualified for such a role either.

HSLDA President Michael Smith terms the case “very uncommon,” noting the association has “never had a judge order a client into school.” Smith emphasized that this family has a fine homeschool program in place with competent instruction.

The ongoing nature of this case has required no less than five court appearances to date. In the latest hearing, conducted on February 9, Browning rejected expert testimony presented by Dr. Brian Ray, head of the National Home Education Research Institute, on the girl’s behalf. The judge ruled, once again, that the now 14-year-old girl was guilty of “habitual truancy.” She ordered her to attend public school “every single day until she graduates.”

Smith points out that this homeschooling family is complying with Kentucky’s private school law. Additionally, he argues that “by ordering a child to attend a school against a parent’s choice . . . that’s violating a parent’s fundamental right to direct the education of a child.”

The case is currently on appeal, but briefing schedules and further legal actions had not been set as of late February. In addition to HSLDA attorneys, local counsel has been involved in the litigation on the plaintiff’s behalf.

Karen E. Loss is a research associate with the Education Policy Institute in Washington, DC. Her email address is [email protected].

For more information . . . The U.S. Supreme Court’s 1925 decision in Pierce v. Society of Sisters, in which a majority of the Court agreed “a child is not the mere creature of the State,” is available through PolicyBot, The Heartland Institute’s free online research service. Point your browser to and click on PolicyBot to access document #2184828 (6pp.) in Adobe Acrobat’s PDF format.