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The Price of our Precious Idaho Liberty

By Barry Peters (01.08.09)

Author's Note: The laws described in this article were substantially changed in 2009 to make Idaho the state with the greatest home schooling freedoms in the country. Please read the new information at the 'Idaho Law' tab to the left.

      It all started with a passing question at church: Are we required to let the Boise School District into our homes to evaluate our home education programs and curricula?

      The Welker and Patterson families both had been told the same thing. Either they had to cooperate with the school district's investigation or there would be juvenile proceedings instigated to declare their children "habitual truants."

      The year was 1990. The compulsory education statute then in effect was different than the one which we currently enjoy. Today, Idaho Code section 33-202 provides that, "Unless the child is otherwise comparably instructed, the parent or guardian shall cause the child to attend a public, private or parochial school. . ." As home educators, our children nicely fall into the "otherwise comparably instructed" category.

      But in 1990, the statute included an additional phrase. It stated "Unless the child is otherwise comparably instructed, as may be determined by the board of trustees of the school district in which the child resides, the parent or guardian shall cause the child to attend a public, private or parochial school. . ."

      The Boise School District believed that this additional phrase gave it not only the authority, but the obligation, to investigate any family that claimed to be home schooling within the district boundaries. So they sent over an investigator to evaluate the Welker's and the Patterson's program and curriculum. The Welkers and the Pattersons, who were close personal friends, were initially uncertain how to respond.

      Hence, the passing question at church. It was one of those questions a lawyer would rather not have to consider. Attorneys prefer black and white issues. And this one appeared to have no clear answer. It was what lawyers and judges describe as "a case of first impression." The question had simply never been addressed by an Idaho court.

      We quickly approached Mike Smith and Chris Klicka at the Home School Legal Defense Association in Virginia and sought their wisdom on the issue. After reviewing the case with them, they encouraged us to oppose the district. They provided us with an initial set of U.S. Supreme Court case decisions that could be construed to support the families' rights in this case. But none of those cases had been rendered in connection with a home schooling situation. Each offered support by analogy only - a tenuous reed on which to hang the future of these young families.

      It would have been very easy for the Welkers and the Pattersons to cave in to the district's demands. There was little real risk that the district would find either their programs or their children academically wanting. And if they had simply given the information demanded, they would in all likelihood have been permitted to continue without further restriction.

      The father in the Welker family was a surgeon and the mother a registered nurse, both highly educated. The Pattersons were also well educated. Yet despite these eminent qualifications, the school district was adamant that these families also had to provide the information which had been demanded.

      The financial and emotional cost of opposing the district's and the county prosecutor's limitless budget made the thought of a legal battle daunting. And what if the court sided with the district? Their children would have been branded juvenile delinquents.

      Nevertheless, after a discussion of the pros and cons of fighting the district, these brave families elected to draw a line in the sand. They politely, but firmly, declined to provide the district with any information regarding their home education programs.

      True to their word, the district referred the case to the Ada County Prosecutor's office. The prosecutor reiterated the demand for information. The Welkers and the Pattersons again declined to provide any.

      The predominant legal principle framed by these families turned on the issue of self-incrimination.

      In any normal proceeding against a person accused of a crime, the defendant is entitled to his constitutional rights. Although Miranda warnings were relatively new in those days, they had quickly been implemented after the U.S. Supreme Court's decision in which they were required.

      Under the ruling in the Miranda case, each criminal defendant must be advised that he has the right to remain silent. Anything he says can and will be used against him in a court of law. He has the right to an attorney. If he cannot afford an attorney, one will be appointed for him free of charge.

      But according to the district and the county prosecutor, none of those rules applied in a juvenile proceeding of this sort. Worse yet, at the insistence of the school district, the prosecutor contended that the refusal of these families to provide the demanded information was, in itself, sufficient proof of a violation to conclude that the children were habitually truant. Effectively, the county prosecutor argued that these families should be presumed guilty until they provided proof of their innocence.

      The case was heard initially by Judge Dutcher, the Ada County Juvenile Court Judge. After receiving written and oral legal arguments, Judge Dutcher rendered his initial ruling.

      Neither party was fully satisfied by Judge Dutcher's decision. Both sides then appealed to the Ada County District Court where the case was assigned to Judge McKee.

      The prosecutor appealed based on his contention that the families' refusal to answer questions should have been accepted as proof of guilt.

      The Welkers and Pattersons appealed arguing that they had a constitutional right to be free from the intrusive questioning or investigation of the school district.

      Again after substantial written and legal arguments by both sides, Judge McKee rendered his decision. He ruled against both sides.

      As to the district's appeal arguing that a presumption of guilt could be created based solely upon the family's refusal to answer questions, Judge McKee ruled against the district. He declared that from the beginning, every juvenile or criminal proceeding must have at least some shred of credible and admissible evidence of a violation. If there is no evidence, the burden of proving innocence never shifts to the accused. In this case, the judge ruled against the district and the prosecutor because they had essentially admitted that they had absolutely no evidence other than the families' silence.

      But the families had asked the judge to declare that they had a constitutional right to be free from the probing questions of the school district and that it was a violation of the families' rights for the district to even ask the questions without some evidence of wrongdoing having first been uncovered.

      Judge McKee also denied the families' appeal. But in the process, he offered several statements that have since proven to provide crucial shields to the right of home schoolers to be free from intrusive governmental inquiries.

      In his decision, Judge McKee said three important things. First, he said that families did not have a constitutional right to be free from government inquiries. But then he followed up by stating that, even though districts may ask whatever questions they like, families likewise have a legal right to decline to answer any questions asked by the district. They had a "right to remain silent." Finally, he stated that, in the absence of some credible and admissible evidence of a failure to actually educate ones children at home, the county had no basis for pursing juvenile or criminal charges against the family.

      While this case failed to provide an absolute shield for all home schoolers in the state, it was a critical step toward gaining the right for home educators to be able to proudly stand in the public square on an equal footing with parents who choose other modes of education. In hindsight, it was a small, but crucial, step in the journey which has brought Idaho to the place of being one of the states with the greatest home schooling freedoms in the entire country.

      Let us never forget the brave souls who were willing to risk so much to create and defend the rights that we often take for granted. For the truth is that we stand on their shoulders and owe them a far greater debt than can ever be repaid.

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