Idaho Triple Crown

By Barry Peters, Esq.
Spring 2015

    Since 2008, Idaho home schooling families have been on a winning streak. And now they've won the Triple Crown.

1st Crown
    The string of victories began in 2009, the year that the Idaho legislature recast the state's compulsory education statute in a way that expressly allowed home education for the first time. That change also gave home schoolers more autonomy in educational decisions than are found anywhere else in the country.

2nd Crown
    A year later, in 2010, in a collaborative effort among the Idaho Coalition of Home Educators (ICHE), Christian Homeschoolers of Idaho State (CHOIS), and the Idaho Department of Health and Welfare, the state adopted new guidelines for the investigation of educational neglect by home schoolers.
    Instead of over-reacting to wild accusations or unproven rumors, allegations are now pursued only if they appear to be substantiated. And any investigation is to be handled in a gentle manner which gives the family ample opportunity to disprove the claimed neglect. In a situation where actual neglect is discovered, there are now more nuanced options available for the Department of Health and Welfare to come alongside the family to deal with that shortcoming.

3rd Crown
    And now in 2015, the Idaho legislature has again blessed all families in the state by overwhelmingly passing a strong Parental Rights statute.

Pedigree of Parental Rights
    To understand the significance of this new law, a quick look at several U.S. Supreme Court decisions is needed.
    In the 1920's, the court considered two important cases. In one, Oregon required every school-aged child to attend a public school. In the other, Nebraska outlawed the teaching of any foreign language prior to the 9th grade.
    In quick succession, these cases arrived at the U.S. Supreme Court where novel arguments were made by the parents under the 14th Amendment of the U.S. Constitution. That amendment prohibits a person from being deprived of "life, liberty, or property without due process of law."
    In these two cases, the parents claimed that the "liberties" that cannot be deprived without due process of law include the freedom of parents to direct the education and upbringing of their minor children.
    The Supreme Court agreed. And the court went even further to declare that these rights were actually "fundamental" constitutional rights "implicit in the concept of ordered liberty" and "deeply rooted in our nation's history and tradition."
    The significance of these declarations was fleshed-out two decades later when the Court ruled that the government may only interfere with a fundamental right in very narrow circumstances. It imposed a two-part Strict Scrutiny Test. First, the interference with a fundamental right may only occur in the pursuit of a "compelling state interest." Second, the interference must be undertaken in the least intrusive manner possible.
    If the interference by the state is not prompted by a compelling state interest, or if the state's interest is being pursued in a heavy-handed fashion, the action fails the Strict Scrutiny Test and is deemed unconstitutional.

The Train Wreck
    But then, 75 years later, things changed.
    In 2000, the Supreme Court dialed back parental rights under a new decision. The case involved an appeal by grandparents who wanted to spend more time with their young granddaughters. When the mother of the girls refused, the grandparents took the mother to court under a Washington state statute that gave them the right to do so.
    At the U.S. Supreme Court, the mother reminded the court of her fundamental parental right to direct the upbringing and education of her daughters.
    In its decision, the court agreed with the mother and ruled against the grandparents. But it declined to apply the Strict Scrutiny Test. And in so doing, it took off the table the high standards that historically had to be met before parental rights could be trampled.
    That opened the gate to a steady line of court decisions across the country that allowed heavy-handed state actions that would have been deemed unconstitutional under the traditional test. To date, 23 state appellate court decisions and two federal circuit courts of appeal decisions have taken this path.
    Fortunately, none of these state cases have been in Idaho and neither of the federal cases was in the 9th Circuit Court of Appeals. Had they been, parental rights in Idaho would have been demoted with the stroke of a judge's pen.

Idaho Legislature to the Rescue
    Representative Janet Trujillo (R-Idaho Falls) has a passion for protecting parental rights.
    In 2014, she introduced a bill to fill the gap left by the Supreme Court's decision. But the bill struggled to make headway.
    In 2015, she returned with a short and simple bill that declared that parents have "a fundamental right to make decisions concerning the care, custody, education and control of their children." The bill passed the House State Affairs Committee by a substantial margin, but managed to pass the full house with only a 37-to-31 vote margin.
    In the Senate State Affairs Committee, Senate Majority Leader Bart Davis (R-Idaho Falls) asked to hold the bill in committee for four days so that he could work to make it an even better bill.
    With some trepidation, the bill's sponsors and supporters met with Senator Davis to discuss revisions to the bill. Our concerns quickly melted as it became evident that Senator Davis meant what he said. He really did want an even better bill. And after an extended meeting, the bill was redrafted in its entirety.
    A new section was added declaring that the legislature recognizes parental rights as being among the unalienable rights that all people retain under the 9th Amendment of the U.S. Constitution. That insulated Idaho parental rights from any additional demotion of those rights by the Supreme Court under the 14th amendment.
    That same section also rooted them in the "due process" liberties under the Idaho Constitution. Again, this declared that the foundation of these rights was the Idaho Constitution, not the U.S. Constitution which the Supreme Court has the annoying habit of reinterpreting at its whim.
    The amended statute still retains references to the "fundamental" right of parents to direct the care, custody, control, and education of a minor child. But now it explicitly states the two-part Strict Scrutiny Test that must be passed before an intrusion upon those rights will be tolerated. This precluded any court from failing to apply this test when considering a case jeopardizing parental rights.
    With these amendments in place and with the leadership of Senator Sheryl Nuxoll (R-Cottonwood) as the bill's senate sponsor, the bill was rapidly passed by the Senate with a party-line vote of 27-to-7. The bill then returned to the House that had passed the original bill by a tepid 37-to-31 vote. This time, the amended and improved bill was passed by a solid 56-to-12 vote. A few days later, the bill was approved by Governor Otter.

The Victors' Circle
    This long journey began when six home schooling parents were jailed in 1985 for their belief that they had the right to teach their children at home in Idaho free from state direction.
    Now, in 2015, Idaho has broader home school liberties, stronger parental rights, and a better working relationship with the Department of Health and Welfare than any other state in the union. You will find the full story illustrated on the Idaho Home School History Display at the CHOIS Convention.
    Let us take none of this for granted. Make no mistake, each step in the journey is a gift from God in more ways than we can imagine. But without your vigilance, emails, and prayers, these victories would never have been gained. And without your continuing vigilant prayers and emails, they can just as easily and as quickly be lost.

Barry Peters is an attorney in private practice with offices in Eagle, Idaho, and is one of the legal advisors for both ICHE and CHOIS. His law practice focuses on the areas of wills, trusts, probate, and real estate contracts.

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