Judge seems prejudiced against home schooling
This case could threaten parents’  home schooling freedoms in Kentucky
From, The Kentucky Citizen Digest, May/June, 2001.

In an ongoing battle between the Logan county school district and a local home school family, Curcuit Court Judge Tyler Gill heard a case on April 20 presented by the Homeschool Legal Defense Association (HSLDA) that an earlier ruling by District Judge Susan Browning be overturned.

On Feb. 13, Browning had ruled in favor of the public school for the second time.  Browning found Sarah Dukes guilty of habitual truancy and ordered her to attend public school until she is 18—two years longer than Kentucky’s compulsory attendance law requires.  Browning again refused to consider expert testimony about Sarah’s home school program and whether her home school was in compliance with the law.

At that time Mr. and Mrs. Dukes told the judge they have homeschooled their 11-year-old son for two years.  Browning said homeschooling was OK for elementary school, but insisted that the practice was simply not appropriate at the high school level.  Browning said that Mr. and Mrs. Dukes were not capable of properly educating Sarah and ordered her back to public school.

HSLDA president Michael Smith disagreed with Browning’s ruling.  “The judge allowed her personal opinion to cloud her legal thinking,” he said.

The case began in October of last year when George and Deborah Dukes submitted a notice of intent to homeschool their daughter, Sarah, because of persistent headaches which led to a number of absences.  A week later Sarah was summoned to district court on truancy charges and then ordered back to public school.  When the family rejected the order and continued to home school, Judge Browning issued a bench warrant for the arrest of Deborah and a pick-up order to remove Sarah  from the home.

HSLDA stepped in on behalf of the Dukes  family and successfully “froze” the arrest warrant when a higher court found  Browning violated the Dukeses due process.  Browning violated their rights once again on Jan. 8 when she refused to hear evidence supporting their case.  Browning told the parents they were not qualified to teach their daughter on their own and promptly ordered her back to public school where she has been attending ever since.  The Dukes family has appeared before Browning five times in four months.  One scheduled hearing was canceled because Browning said she was too busy to hear them, sending out of state attorneys home without a hearing.

HSLDA attorneys have said this is an unusually difficult case.  “This case has nothing to do with the Dukes family,” said attorney A.C. Donahue. “This is about the judge’s hatred of home schooling.”

Lead HSLDA attorney David Gordon petitioned Gill to dismiss Browning’s ruling because of her abuse of discretion.  “This one of the greatest abuses of judicial power that we have ever seen,” said Gordon.

Logan County public school officials contend the issue is entirely about truancy, but critics argue that by raising the specter of “truancy,” school districts can prevent parents from homeschooling, especially those children struggling with academics or attendance problems.

Attorneys point out that if the judge had followed the law this case would have been dropped long ago.  Richard Nelson, policy analyst for The Family Foundation agrees.  “Without doubt, home schooling is legal in Kentucky.  Why should a family spend four months of their time in court trying to prove that to a judge?”

Originally, the school charged Sarah Dukes with eight unexcused absences.  However, state law requires proving nine unexcused absences for the charge of habitual truancy.   When Commonwealth attorney Tom Noe learned that, he filed an amended petition alleging 10 unexcused absences.   Five of the 10 absences included days Sarah was being home schooled. Moreover, Noe asked the director of pupil personnel, Dr. Jo Orange, to add unexcused absences from the previous school year as well.  Orange testified that they usually don’t do that, but did so anyway in this instance.

Orange said that after three absences a letter is sent home.  However, this was not done last spring in the Dukes case.  Three different official attendance records were provided by the school.  Each of the records show different attendance data for Sarah.  HSLDA attorneys contend there is evidence of fraud in this case.

According to the school’s official Nov. 30 attendance record, Sarah was absent only two days in September and then withdrew on Sep. 27.  But according to the Dec. 15 record, 10 absences are recorded with no indication of a Sep. 27 withdrawal.  Mr. and Mrs. Dukes say they didn’t withdraw Sarah until mid-October.

Orange responded to questions about the Nov. 30 report by saying, “They went back to the last day she had missed and withdrew her on that day, but that’s just so we didn’t have to show all of the absences.”  Orange said they didn’t want to show the absences, “because that would count against us.”

The case is being appealed to a higher court where the Dukes family will seek a writ of prohibition to nullify Browning’s ruling.  Ironically, while the school’s tenacious pursuit of the truancy charges deteriorate, it is possible that their over- zealousness in this case may eventually land them in court as defendants.

HSLDA attorneys don’t expect a decision by Judge Gill until after the school year has ended.
 
 

Key Family Foundation Contacts: Kent Ostrander, Executive Director Martin Cothran, Senior Associate Policy Analyst