The job of enforcing laws is that of the States Attorney in the county. School Districts do not have legal powers. Schools do have regional superintendents and truant officers. They have no power to determine whehter a homeschool is in or out of compliance with the compulsory education law. Only the court can make a conclusive determination. Only a States Attorney can initiate a proceeding to get before a judge. At most, the truant officer can refer a situation to the States Attorney with a recommendation. The truant officer can describe the situation to the States Attoorney who must decide whether legal proceedings are appropriate to enforce the compulsory education statute, and if so, the most appropriate type of proceeding: a criminal action, a truancy petition or a neglect petition against the parents. Each type of proceeding has different proofs and remedies.
School personnel have no judicial powers. They have no power to compel anyone to produce attendence or evidence. They do have the duty to investigate who is truant and who meets the private school exemption of the compulsory education statute. That determination is not the same as a legal binding one. A truant officer cannot compel or threaten or harrass. A truant officer has no power to subpoena records or search a home. All he can do is say that based on the informatin he has, the matter is ripe for referral to a States Attorney.
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SOME INFORMATION WHICH MAY PROVE HELPFUL TO HOMESCHOOLING FAMILIES
I. ILLINOIS STATUTE
The Illinois statute reads:
“Compulsory school age_Exemptions. Whoever has custody or control of any child between the ages of 7 and 16 years shall cause such child to attend some public school in the district wherein the child resides the entire time it is in session during the regular school term, except as provided in Section 10-19.1, and during a required summer school program established under Section 10-22.33B; provided, that the following children shall not be required to attend the public schools: 1. Any child attending a private or a parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of the child in the branches of education is in the English language....” Illinois Compiled Statutes – School Code Sec. 26-1 (105 ILCS 5/26-1).
II. COURT RULING
The Supreme Court of Illinois, in People v. Levisen, has ruled on whether a child who attends a private home school is in compliance with the statute. Though the Levisens failed to stipulate that they were a “private school,” the Supreme Court of Illinois ruled that they nevertheless were indeed a private school, according to legislative intent. Before the Law, a private home school is no different from any other private school.
III. PUBLIC SCHOOL REGULATION OF HOME SCHOOLS
Public school officials have no jurisdiction unless granted by Law. Constitution of the State of Illinois, Article VII, Section 8. Submitting to public school “review” and “approval” of a private home school program would defacto change the status of the school from a “private” school to a “public” school approved tutorial program.
IV. COMPLIANCE WITH ILLINOIS LAW
Full compliance with Illinois Law cannot require compliance with non-statutory administrative regulations of a government agency which lacks jurisdiction. Rather, a “lawful school” is a school in full compliance with Illinois Law. Private Home Education which includes teaching in the branches of education taught to children of corresponding age and grade in the public schools in the English language is in full compliance with Illinois Law.
V. DECEIT, THREATS, INTIMIDATION, AND HARASSMENT
To threaten criminal prosecution for failing to comply with administrative rules which have no jurisdiction and which have no foundation in law, such as requirements for keeping a specific kind of attendance record book, are deceptive attempts to intimidate people into waiving their rights, and are furthermore a denial of due process of law. Truant officers are to proceed only after determining
“... if the children complained of are not exempt under the provisions of this Article ....” Illinois Compiled Statutes – School Code Sec. 26-5 (105 ILCS 5/26-5).
“If any person fails to send any child under his custody or control to some lawful school the truant officer shall, as soon as practicable after he is notified thereof, give notice in person or by mail to such person that such child shall be present at the proper public school on the day following the receipt of such notice.” Illinois Compiled Statutes – School Code Sec. 26-7 (105 ILCS 5/26-7).
According to Illinois Law, a private home school is a lawful school. Hence there is no authority in this statute for notification of persons who have their children in a private home school.
VI. BURDEN OF PROOF
The United States Supreme Court has explicitly held that in a criminal prosecution the state must prove every element of a crime (even if statutorily worded as an exception) beyond reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 704 (1975); In re Winship, 397 U.S. 358, 364 (1970). The state must carry the burden of proving beyond any reasonable doubt that the parents are not competent to teach. “This case must be considered in the light of the fact that the charge involved is a criminal one, potentially subjecting these parents to criminal penalties. It is therefore the burden of the prosecution to establish by the requisite measure all of the essential elements of the criminal act.” Vermont v. LaBarge. 357 A. 2d 121 (1976) cf. State v. Massa, 95 N.J. Super. 382 and State v. Dyck, (Wells County Court, N.D., January 31, 1978) “The American accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the expedient of compelling it from his own mouth.” Miranda v. Arizona (1966).
VII. CRIMINAL PROSECUTION OF PUBLIC OFFICIALS
The claim and exercise of a constitutionally guaranteed right cannot be converted into a crime. “The compulsory education statute may not be applied as a coercive means to require that a citizen give up his constitutional rights.” Dobbins v. Commonwealth, 198 Va. 697, 96 SE 2d 154 (1957)
First Amendment and other freedoms are fully protected by the U.S. Civil Rights Acts: 42 USC 1983-88, and “historically damages have been regarded as the ordinary remedy for the invasion of personal interest.” Vivens v. Six Unknown Agents, 403 U.S. 388
“Encroachment of First Amendment rights cannot be justified upon a mere showing of a legitimate state interest;” Kusper v. Potikes, 414 S. 51; “... if the facts adduced at trial were to establish an infringement of the Student’s First Amendment right, she would have had a cause of action for damages in the federal courts....Compensatory damages may be awarded under certain circumstances in a civil-right case, although no out-of-pocket expenses are shown...punative damages may be awarded in some situations for a malicious and wanton disregard for a plantiff’s constitutional rights, even in...absense of actual damages.’ Paton v. LaPrade, 524 S. 2d 862.
“If two or more persons conspire to injure, oppress, threaten,
or intimidate any citizen in the free exercise or enjoyment of any right
or privilege secured to him by the Constitution, or laws of the United
States...they shall be fined not more than $10,000, or imprisoned not more
than ten years, or both.” “Whoever, under colour of any law, statute, ordinance,
regulation, or custom, wilfully subjects any inhabitants of any state,
territory, or district to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or laws of the United
States shall be fined not more than $1,000 or imprisoned not more than
one year, or both.” Criminal Justice Code, Title 18, Sections 241 and 242,
see also Title 42, Sections 1983, 85, 86.
Harvey and Laurie Bluedorn
Homeschooling with the Trivium
|Additional Home school legal references||Compulsory Education law||Juvenile Court Act||Levisen case|
|Homeschool and Special Education||Attorney General Summary||Scoma case|
Remember, officials have three routes to enforce the compulsory education law (105 ILCS 5/26-1).
The Illinois Supreme Court discussed the burden of proof in Levisen:
"Those who prefer this [homeschooling] method as a substitute for attendance at the public school have the burden of showing that they have in good faith provided an adequate course of instruction in the prescribed branches of learning. This burden is not satisfied if the evidence fails to show a type of instruction and discipline having the required quality and character. No parent can be said to have a right to deprive his child of educational advantages at least commensurate with the standards prescribed for the public schools, and any failure to provide such benefits is a matter of great concern to the courts."Section 3-33 of the Juvenile Court Act states:
Sec. 3-33. Truant Minor in Need of Supervision.
(a) Definition. A minor who is reported by a regional
superintendent of schools, or in cities of over 500,000 inhabitants, by
the Office of Chronic Truant Adjudication, as a chronic truant shall be
adjudged a truant minor in need of supervision.
(a-1) There is a rebuttable presumption that a chronic truant is a
truant minor in need of supervision.
(a-2) There is a rebuttable presumption that school records of a
minor's attendance at school are authentic.
"Chronic or habitual truant" shall be defined as a child subject to
compulsory school attendance and who is absent without valid cause from
such attendance for 10% or more of the previous 180 regular attendance
days. 105 ILCS 5/26-2a.
The Attorney General of the State of Illinois summarized the law in 1991:
Subsequent cases have underscored the court's statement that home schooling may not be used as a pretext for evading the parental responsibility for educating children. In People v. Harrell (1962), 34 Ill.App.2d 205, parents who withdrew their children from public school to place them in a home school that had not yet been organized and did not have appropriate materials were found guilty of violating the compulsory education law, since the education provided was not equivalent to that which was provided by the public school. Similarly, in People v. Berger (1982), 109 Ill.App.3d 1054, parents who kept a child at home because the school environment allegedly aggravated her allergies, but who did not attempt to provide education at home, were found guilty of violating the law. These cases, together with People v. Levisen, clearly illustrate that there must be an organized, coherent plan for educating the child in a home school using appropriate materials and teaching methods, in order to satisfy section 26-1 of the School Code.. . .
Parents who withdraw their child from public school have the burden of proving that their plan of home instruction qualifies as a private school, for purposes of the compulsory education law. (People v. Levison (1950), 404 Ill. , 577-78; See also, Scoma v. Chicago Board of Education (N.D.Ill.1974), 391 F.Supp. 452, 462.) Therefore, the school district may inquire into the child's non-attendance at public school and the adequacy of the home school plan. If it is determined that the plan is not adequate or equivalent to the education provided by the public school, charges can be filed against the parents for violation of the compulsory attendance law. (Ill.Rev.Stat.1989, ch. 122, par. 26-10.) Alternatively, under appropriate circumstances a child whose parents do not provide for his proper education may be treated as a neglected minor, pursuant to section 2-3 of the Juvenile Court Act. (Ill.Rev.Stat.1989, ch. 37, par. 802-3.)Thus, it is the opinion of the State of Illinois that truant officers must be able to inquire into a child's nonattendance at the public school.
In summary, it is my opinion that the parents of a child with disabilities may elect to educate their child in a home school if the education provided is equivalent to that which a child of similar abilities receives in the public schools. The failure to provide an equivalent education, however, constitutes a violation of section 26-1 of the Illinois School Code.
Any court considering the above laws would likely hold that truant officers
do have the duty to investigate who is a truant and who is in a private
school. The truant officers may have an opinion of the adequacy of
the homeschool lesson plan that differs from that of the parents; however,
it is not the school officers' authority to make a judicial determination
whether the plan is in fact equivalent or better than that of the school.
All the school can do is inquire and instigate a legal proceeding.
How they can inquire is limited. Unless there is a a petition
filed before a court, I am unaware of any law which could grant the subpoena
power or compulsory discovery to a school. Nobody in this State has
the power to issue a subpoena, not the police chief, not the governor,
other than a court or a grand jury. The school would have to get
another authority to enforce the law. While the above article states
officers are to proceed only after determining '... if the children
complained of are not exempt under the provisions of this Article,'" the
article thereby concedes that the truant officer has to form a determination.
(also Ill. Admin Code ch. 89, sec. 300.20)
(705 ILCS 405/1-4) Sec. 1-4. Limitations of scope of Act. Nothing in this Act shall be construed to give: (a) any guardian appointed hereunder the guardianship of the estate of the minor or to change the age of minority for any purpose other than those expressly stated in this Act; or (b) any court jurisdiction, except as provided in Sections 2-7, 3-6, 3-9, 4-6 and 5-410, over any minor solely on the basis of the minor's (i) misbehavior which does not violate any federal or state law or municipal ordinance, (ii) refusal to obey the orders or directions of a parent, guardian or custodian, (iii) absence from home without the consent of his or her parent, guardian or custodian, or (iv) truancy, until efforts and procedures to address and resolve such actions by a law enforcement officer during a period of limited custody, by crisis intervention services under Section 3-5, and by alternative voluntary residential placement or other disposition as provided by Section 3-6 have been exhausted without correcting such actions. (Source: P.A. 91-357, eff. 7-29-99.)
(705 ILCS 405/2-3) Sec. 2-3. Neglected or abused minor. (1) Those who are neglected include: (a) any minor under 18 years of age who is not receiving the proper or necessary support, education as required by law, or medical or other remedial care recognized under State law as necessary for a minor's well-being, or other care necessary for his or her well-being, including adequate food, clothing and shelter, or who is abandoned by his or her parents or other person responsible for the minor's welfare, except that a minor shall not be considered neglected for the sole reason that the minor's parent or other person responsible for the minor's welfare has left the minor in the care of an adult relative for any period of time;
(705 ILCS 405/2-5) Sec. 2-5. Taking into custody. (1) A law enforcement officer may, without a warrant, take into temporary custody a minor (a) whom the officer with reasonable cause believes to be a person described in Section 2-3 or 2-4;
(705 ILCS 405/2-9) Sec. 2-9. Setting of temporary custody hearing; notice; release. (1) Unless sooner released, a minor as defined in Section 2-3 or 2-4 of this Act taken into temporary protective custody must be brought before a judicial officer within 48 hours, exclusive of Saturdays, Sundays and court-designated holidays, for a temporary custody hearing to determine whether he shall be further held in custody. (2) If the probation officer or such other public officer designated by the court determines that the minor should be retained in custody, he shall cause a petition to be filed as provided in Section 2-13 of this Article, and the clerk of the court shall set the matter for hearing on the temporary custody hearing calendar. When a parent, guardian, custodian or responsible relative is present and so requests, the temporary custody hearing shall be held immediately if the court is in session, otherwise at the earliest feasible time. The petitioner through counsel or such other public officer designated by the court shall insure notification to the minor's parent, guardian, custodian or responsible relative of the time and place of the hearing by the best practicable notice, allowing for oral notice in place of written notice only if provision of written notice is unreasonable under the circumstances. (3) The minor must be released from temporary protective custody at the expiration of the 48 hour period specified by this Section if not brought before a judicial officer within that period.
(705 ILCS 405/2-10) Sec. 2-10. Temporary custody hearing. At the appearance of the minor before the court at the temporary custody hearing, all witnesses present shall be examined before the court in relation to any matter connected with the allegations made in the petition. (1) If the court finds that there is not probable cause to believe that the minor is abused, neglected or dependent it shall release the minor and dismiss the petition. (2) If the court finds that there is probable cause to believe that the minor is abused, neglected or dependent, the court shall state in writing the factual basis supporting its finding and the minor, his or her parent, guardian, custodian and other persons able to give relevant testimony shall be examined before the court.
(705 ILCS 405/2-13) Sec. 2-13. Petition. (1) Any adult person, any agency or association by its representative may file, or the court on its own motion, consistent with the health, safety and best interests of the minor may direct the filing through the State's Attorney of a petition in respect of a minor under this Act. The petition and all subsequent court documents shall be entitled "In the interest of ...., a minor". (2) The petition shall be verified but the statements may be made upon information and belief. It shall allege that the minor is abused, neglected, or dependent, with citations to the appropriate provisions of this Act, and set forth (a) facts sufficient to bring the minor under Section 2-3 or 2-4 ... (3) The petition must allege that it is in the best interests of the minor and of the public that he be adjudged a ward of the court and may pray generally for relief available under this Act. The petition need not specify any proposed disposition following adjudication of wardship. In addition to the foregoing, the petitioner, by motion, may request the termination of parental rights and appointment of a guardian of the person with power to consent to adoption of the minor under Section 2-29 at any time after the entry of a dispositional order under Section 2-22.Legal Resources for Illinois Homeschoolers
|Additional Home school legal references||Compulsory Education law||Juvenile Court Act||Levisen case|
|Homeschool and Special Education||Attorney General Summary||Bluedorn analysis||Scoma case|