Record: Charles J. Russo, “Is Home Schooling ‘in the Best Interests of the Child?’ The Supreme Court of New Hampshire Answers – Not When Divorced Parents Disagree!” in Private School Monitor 33, no. 2 (Fall 2011).
Summary: Russo, a prolific scholar on legal issues in education who has had several occasions in the past to turn his attention to homeschooling, here examines the legal status of homeschooling in light of the recent In re Kurowski (2011) case in New Hampshire that pitted a divorced homeschooling mother against her ex-husband who disapproved of the practice.
Russo begins with a legal orientation to homeschooling. He incorrectly claims that in 1980 homeschooling was legal in only two states. In fact at that time well over thirty states had either explicit or implied provisions for home-based instruction in their compulsory education statutes. The problem with most of the statutes, however, was that they were very vague.
He moves quickly to the present, saying that homeschooling is now legal nationwide for parents even without teaching certifications. He then moves to a summary of In Re Kurowski (which he unfortunately misspells throughout Kurkowski)
In this case, the Kurowskis divorced in 1999. In 2005 the mother began homeschooling their daughter. The father, who had joint custody, didn’t approve, citing socialization concerns. Lower courts rejected his complaints. In 2007 the father requested the court to appoint a “GAL,” or guardian ad litam, who could safeguard the child’s best interest. He believed that the homeschooling was weakening his relationship with his daughter because it was creating exclusive mother/child bonds grounded in the mother’s fundamentalist religion. The court appointed a GAL, who recommended that the father be granted expanded visitation rights and that he have a say in the child’s educational and religious training. The child began attending three classes in a public school in 2010. The mother tried to get this changed, but the lower court rejected her efforts. She appealed to the State Supreme Court.
New Hampshire’s highest court unanimously agreed with the lower court’s decision. The State Supreme Court held that this was not a case about homeschooling or about religion, but only about what is to be done when two parents with equal constitutional rights and interests in their child’s education disagree. And the Court basically said that in such cases homeschooling does not automatically win. The lower court decided that public school was in the child’s best interest, and the higher court saw no reason to challenge this conclusion.
Russo next explains that such instances are likely to increase as both homeschooling and divorce rates continue to rise. School personnel should therefore craft policy to be ready to deal with such issues before they arise. He lays out six principles:
1. School business officials should proactively appoint someone to be a liaison with homeschooling families so that when situations come up, there is somebody ready to deal with them.
2. These liaisons should develop effective channels of communication with homeschooling families so that all are clear about state requirements and so on.
3. One requirement that especially needs to be made clear is the degree to which children can attend public school classes part-time (as they can in New Hampshire).
4. Special attention should be paid to orientation and other services schools should provide for children coming into public education after having been homeschooled. For some children this can be a difficult transition, and school officials should work hard to provide extra support.
5. Liaisons should also work with parents to make it clear what the rules are about homeschooler participation in extracurriculars like school sports.
6. Finally, school business officials should stay current on the laws and court cases regarding homeschooling and public education so that they are not caught off guard and so that they do not act “in the heat of the moment.”
Appraisal: If you look at Russo’s Curriculum Vitae you see that he publishes many, many articles every year on a wide range of topics related to education and law. Such a prodigious output perhaps explains why this text seemed pretty thin. At one point Russo cites a 2007 Alabama case (Morgan v. Morgan) and calls it “apparently the only other case involving divorced parents and homeschooling.” (p.2) This is mistaken. See, for example Gertler v. Gertler for another.
Russo also could have given us much more authoritative treatment of topics he mentions off-handedly like homeschooler acess to extracurriculars and state regulation of homeschooling. All in all what we have here it seems is a very hastily composed brief on the Kurowski decision by a scholar who I know could do better if he had just taken a bit more time. Even so, his advice to school personnel is surely useful and if taken would further the trend in recent years toward a more collaborative rather than combative climate between homeschoolers and public school officials.
Milton Gaither, Messiah College, author of Homeschool: An American History
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