Victory for New York Homeschooling Family!

HSLDA – March 20, 2007

On February 28, 2007, the federal court in New York vindicated Home School Legal Defense Association’s long-held position that public schools may not force homeschooling parents to submit their children to special education testing.

Case: D Family v. Livonia Central School District
Filed: October 8, 2004

Mr. and Mrs. D homeschooled their special needs son and had him privately evaluated at their own expense, choosing to waive any right for a FAPE (Free Appropriate Public Education) for their son. In September 2004, however, the school district insisted that it must evaluate the child, whether Mr. and Mrs. D consented to it or not, and it initiated a due process hearing under the Individuals with Disabilities in Education Act (IDEA).

HSLDA argued to the local hearing officer that the parents should not have to submit to an unwanted, unnecessary evaluation for services which everyone agreed that they would never accept, but in May 2005, the hearing officer ruled for the school district.  An appeal to the State Review Office followed, with the same result a year later.

On June 12, 2006, HSLDA filed an appeal in federal court.  Eight months later, the court issued its decision, fully agreeing that the parents could not be forced into an evaluation.

The judge’s decision stated, “I find that the IDEA does not permit a school district to compel the evaluation of a student … where the student’s parent has objected to such an evaluation and has refused to accept publicly-funded special-education services.’  The court reiterated the Eighth Circuit’s decision in Fitzgerald, the federal appellate court decision HSLDA won in 2006, which stated that such a compelled evaluation “would have no purpose” and be “pointless.”

“It is ludicrous under a plain understanding of the IDEA as it applies to homeschooled or privately-schooled students that any school district should have the ability to force parents to consent to an evaluation that is not even necessary under the IDEA.  This case drives the final nail in the coffin of the argument that public schools have the right to force this kind of evaluation over parents’ objections,” said HSLDA Deputy General Counsel James R. Mason, III.  “With these two federal cases and the new federal regulations, every school is on notice that these forced evaluations are illegal.”

School Districts May Not Evaluate without Parental Consent

HSLDA -- October 23, 2006

Federal Regulation: School Districts May Not Evaluate Homeschoolers without Parental Consent

On October 13, 2006, the United States Department of Education placed regulations into effect that explicitly deny school districts any ability under the Individuals with Disabilities in Education Act (IDEA) to override a parent’s refusal to have their homeschooled child evaluated for disabilities.

Over the last several years, Home School Legal Defense Association has seen an increase in such cases where the homeschooling parent denies consent for an evaluation and the school district files a due process procedure against the family.

The new regulations are in part a result of HSLDA’s victory in the case Fitzgerald v. Camdenton R-III School District (2006), in which the court ruled that a school district did not have the right to override a parent’s consent. “Where a home-schooled child’s parents refuse consent [for an evaluation], privately educate the child, and expressly waive all benefits under the IDEA, an evaluation would have no purpose. . . . [A] district may not force an evaluation in this case.”

After the Fitzgerald decision, HSLDA members all over the country attended meetings and sent in comments regarding the Department of Education’s proposed regulations while HSLDA lobbied the Department directly for change. The Fitzgerald case, in conjunction with the comments of HSLDA and our members, has resulted in an expansion of the language that was already in the comments on the proposed IDEA regulations. Now, a completely new section in the IDEA regulations provides protection for parents who homeschool. The new regulations state that if a homeschooling parent does not provide consent for any initial evaluation or reevaluation of their child, the school district cannot even initiate a due process procedure to override that consent.

“Our hard-won victory in Fitzgerald brought this matter to the attention of the Department of Education,” said HSLDA Litigation Attorney Jim Mason. “Even the DOE acknowledged that this has always been the intent of the law. Now they say it clearly.”