Legislative Perspective: The Birthday Lawsuit

A lawsuit over a birthday?

A south-central Pennsylvania school district recently demanded that homeschool families submit proof of the age of the homeschooled children. As I was helping the family respond, I checked on the background of this issue.

I discovered that HSLDA has been sending letters to this same school district for many years trying to convince them that they have no right to demand a child date of birth, or a birth certificate. So far, it’s a draw.

We tell the school district their demands are not lawful. They keep making the demands anyway. But they never try to take enforcement action against the family for refusing to provide it. What are we to do?

A somewhat similar scenario unfolded in Virginia not too long ago. A large urban school district began telling homeschool families that they must submit a birth certificate. We told the school district they had no authority to make that demand.

But in this case, they did not back down. In fact, they ratcheted up the tension by threatening to take a family to court for truancy. This was sufficient to give the family standing to file their own lawsuit against the school district.

HSLDA filed a lawsuit on behalf of the threatened family. We asked the court to issue an official declaration stating that Virginia law did not require the family to submit a birth certificate.

The school district fought back. They claimed that they needed the birth certificate. They asserted they needed it to fight human trafficking.

Human trafficking is doubtlessly a significant social problem. Although it seems like a stretch to me, perhaps getting birth certificates from every homeschool family in a school district would potentially be helpful.

In any event, the school district was demanding—and getting—birth certificates from all the public school students. So why not get them from homeschool students as well?

That’s a fair question and it deserves an answer. The answer is very simple. Only the state legislature (Virginia General Assembly, in this case) has the power to decide what hoops a homeschool family must jump through in order to homeschool lawfully. The Department of Education does not have the power. A local school board does not have the power. Neither a local superintendent nor homeschool liaison staffer has the power.

But back to my story. At the trial, the lawyers for the Virginia school district convinced the judge that the school district was right and HSLDA’s client was wrong. We lost.

We submitted a special request asking the Virginia Supreme Court to take the case. We were very pleased when the Court agreed to accept it.

We filed legal briefs explaining our reasons for believing the trial judge was wrong. The Court set a special time so that the attorneys on both sides could argue the issues orally to the Court.

Then we waited for a final decision. It was cause for celebration in our office when we learned that the Court decided to overturn the trial judge. In fact, all seven members of the Virginia Supreme Court agreed that the trial judge was wrong! Our client was very pleased.

Now back to Pennsylvania. I’m sure the south-central Pennsylvania staffers (and others elsewhere) who have been demanding birth certificates and proof of age think they “need” that information for one purpose or another. Another school district demanded birth dates and claimed it was necessary as part of a census, but it looked like a sham to me.

What the Pennsylvania legislature has put into the law trumps school official’s opinions about what they “need.” And the law does not require families to submit a birth certificate or proof of age in order to homeschool lawfully.

So far as I know, no homeschool family has been specifically threatened with law enforcement action for refusing to provide proof of age or a birth certificate. Because of this, there is no actual case or controversy or dispute (in the legal sense).

Therefore, a court would probably not want to get involved to help resolve the issue. There will probably be no birthday lawsuit in Pennsylvania. As I said, we have a draw.

This puts the responsibility squarely on the shoulders of the homeschool community. It is our job to educate new homeschool families. It is our responsibility to educate even veteran families who don’t know how to approach this issue.

One of the best ways to protect a right is to use it. Let’s encourage other families to protect their right to decline a request for proof of age or a birth certificate by exercising it.