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Care
and Protection of Ivan & another, 48 Mass. App. Ct. 87 (1999).
87
Care
and Protection of Ivan & another.1
N.
98 P 2166.
Middlesex.
May 14, 1999. - October 14, 1999.
Present:
JACOBS, GILLERMAN, & GREENBERG, JJ.
School
and School Committee, Care and protection of minor. Contitutional
Law, Education. Parent and Child, Care and protection
of minor, Education.
This
court concluded that parents' refusal to provide a school committee
with the essentials of their home schooling educational plan and
failure to allow for any evaluation of their children's educational
attainments was a violation of the mandate of Care and Protection
of Charles, 399 Mass. 324, 337-340 (1987), and that a District
Court judge correctly concluded that the children were in need
of care and protection and appropriately committed them temporarily
to the legal custody of the Department of Social Services. [89-91]
PETITION
filed in the Waltham Division of the District Court Department
on June 2, 1997.
The case was heard by Margaret S. Fearey, J.
The
parents, pro se.
Kristyn
M. Snyer for the children.
Jeannette
A. McCarthy for School Committee of Waltham.
Susan
Mojica, pro se, amicus curiae, submitted a brief.
GREENBERG,
J. The parents of two minor children protest that the city of
Waltham school committee's (committee) demand that they provide
information concerning the home schooling of their children deprives
them of protection under art. 12 of the Massachusetts Declaration
of Rights. We conclude that the parents' refusal to provide the
committee with the bare esssentials of their educational plan
and to allow for any evaluation of their children's educational
attainments transgresses the mandate of Care and Protection
of Charles, 399 Mass. 324,
________________________________________________
1
A
younger sister, Olympia: we use pseudonyms, as is our custom.
88
337
340 (1987), and affirm the decision of a District Court judge
that the children are in need of care and protection and committing
them temporarily to the Department of Social Services (department).
This,
in outline, is the setting of the dispute. On June 2, 1997, on
allegations that two children, who were eight and ten years of
age, were neither enrolled in a school nor had approved home schooling
plans on file with the committee, the committee initiated this
care and protection petition pursuant to G. L. c. 119, §
24(d).2 A trial was held on January 21, 1998,
with additional testimony taken on two separate occasions through
July 10, 1998. It is not necessary to chronicle in detail the
history of missed goals and failed performance of the parents
once the committee intervened in the case. It is only necessary
to state that by the end of almost two years of cajoling the parents
to show that the children's educational needs were being met,
the judge found that the committee "has been effectively
prevented from evaluating whether or not educational neglect exists,
much less proving its existence, by the [p]arents' failure to
provide any information regarding the [c]hildren's educational
level, their mastery of basic skills or the methods being used
to educate them."
Noting
the recalcitrance of the parents to produce "a minimally
adequate educational plan" or to permit any sort of verification
of the children's educational progress, despite numerous good
faith efforts by the committee to accommodate them, the judge,
on July 29, 1998, ordered the parents to file educational plans,
obtain an independent professional evaluation of each child's
educational level, verify whether the children had acquired age
appropriate knowledge and skills, and to file such plans and evaluations
by September 8, 1998. If the parents neither fully complied nor
enrolled the children in the Waltham public schools or a private
school approved by the committee, temporary legal custody of the
children would be transferred to the department.
The
parents did not comply, and the judge, on October 7, 1998, adjudicated
the children in need of care and protection
________________________________________________
2 The
committee relies solely upon § 24(d) of the statute; specifically,
that a petition shall issue if "any person" alleges
that a child within the jurisdiction of the court and under the
age of eighteen "[has] parents, guardian or custodian. .
. unwilling, incompetent or unavailable to provide [physical or
educational] care, discipline or attention.
89
and
ordered temporary legal custody transferred to the department.
The children remain in the physical custody of the parents. It
is that adjudication order, based upon the July 29, 1998, decision,
that forms the basis of this appeal.
The
parents' principal contention is that the committee's process
of approval of their home schooling activity runs counter to their
"learner led" approach to education, which they claim
permits them to facilitate the child's exploration of his or her
own interests. As the judge indicates in her findings on this
point, "This educational philosophy militates against the
development of a concrete 'curriculum.'" At the same time,
the judge found that the committee had no objection to the "[p]arents
using this method of education," only that they had to provide
the school committee with a home schooling plan that was sufficiently
detailed to allow the committee to assess the children's educational
level and their progress on the parents' home schooling program.
It is settled that "the approval process, under G. L. c.
76. § 1, . . . must not be conditioned on requirements that
are not essential to the State interest in insuring that 'all
the children shall be educated.'" Care and Protection
of Charles, 399 Mass. at 337. However, prior approval of the
superintendent or committee is a prerequisite to removal of children
from school and to the commencement of a home schooling program.
Commonwealth v. Renfrew, 332 Mass. 492, 494 (1950) (interpreting
a predecessor statute). Care and Protection of Charles,
supra at 330.
In the
Charles case, supra at 337 340, the court listed
some of the legitimate educational conditions which a school committee,
pursuant to G. L. c. 76, § 1, may impose on a home school
proposal "without infringing on the liberty interests of
the parents under the Fourteenth Amendment [to the United States
Constitution]." Pertinent to this case are two: (1) for the
parents to make available any proposed education plan for the
child and
(2) to permit any testing or evaluation of the child. Contrast
Brunelle v. Lynn Pub. Schools, 428 Mass. 512, 518 519 (1998)
(requirement of home visits is not essential to home schooling).
The parents' brief argues that the "right [of parents] to
direct the education . . . of their own children" is protected
by art. 1 of the Massachusetts Declaration of Rights and pt. 2,
c. 5, § 2, of the Massachusetts Constitution and that their
"unalienable rights in privacy and the rearing of their children"
may not be infringed.
90
The
only suggestion in the record before us of the parents' specific
objections to the committee's stance is that contained in the
judge's findings which state: "The school committee also
requires that parents submit progress reports, which may include
portfolios or work samples, either quarterly or semi annually
. . . . [H]ome schoolers must participate in certain standardized
testing during grades 3, 4. 8 and 10." There was no testimony
or other evidence suggesting the nature or extent of these tests.
In any event, the judge found that "[t]he parents . . . not
only refuse even to submit the [c]hildren to standardized testing;
they also refuse to provide a portfolio of the [c]hildren's work
for review by the [s]chool [c]ommittee, viewing that work as the
[c]hildren's private property."
When
parents remove their children from the public school system and
decide to educate them in a setting which comports with the parents'
philosophical, moral, or religious convictions, prior approval
of such plans may clash with parental choice. In that respect,
decisions of the United States Supreme Court have recognized a
degree of autonomy afforded to parents with respect to the education
of their children. See Meyer v. Nebraska, 262 U.S. 390
(1923) (States may not forbid foreign language instruction of
school children); Pierce v. Society of Sisters, 268 U.S.
510 (1925) (States may not prohibit private school instruction
as an alternative to compulsory education in public schools);
Farrington v. Tokushige, 273 U.S. 284 (1927) (government
could not pervasively regulate foreign language schools in which
students received instruction in the Japanese language as supplement
to English).
In enacting
G. L. c. 76, the Legislature was cognizant of these decisions
which addressed parental autonomy in other contexts. The statute,
therefore, authorizes school committees to use somewhat elastic
standards in evaluating private schools. As appears in the last
sentence of the first paragraph of § 1: '[S]chool committees
shall approve a private school when satisfied that the instruction
in all the studies required by law equals in thoroughness and
efficiency, and in the progress made therein, [as] in the public
schools in the same town." The Charles case extended
the same criteria to evaluate home education programs. Care
and Protection of Charles, 399 Mass. at 331. The Charles
court also suggested that school authorities may jettison standardized
testing for less orthodox means of evaluating the progress of
the children, "such as periodic
91
progress
reports or dated work samples, subject to the approval of the
parents." Id. at 340. In the present case, it was
always open to the parents to work out an accommodation of their
interests along the lines suggested by school authorities and
to resolve the matter by agreement. However, the judge found that
the parents never filed educational plans that were minimally
adequate within the guidelines set forth in Charles.3
The record suggests that the parents were unwilling to permit
any verification of the children's educational progress by the
committee.
Perhaps
more to the point, the adjudication which had been entered in
this case was a grant of temporary legal custody to the department,
but only after the judge extended the parents a final opportunity
to comply with her order to file an educational plan with the
committee and obtain an independent evaluation of the children's
knowledge and skills. Unlike the circumstances in the Charles
case, the parents in this case have had the benefit of a decision
by the judge which sets forth a reasonable course of action which
would not jeopardize the learning capacity of their children and
recognizes their right to school their children in their home.
We think,
therefore, that the judge properly relied on G. L. c. 76, §
1, in determining that the children would be, under G. L. c. 119,
§§ 24 and 26, in need of care and protection if their
parents failed to comply with the judge's mandates with respect
to their educational care. The order of adjudication of commitment
to temporary custody is affirmed.
So
ordered.
________________________________________________
3
The situation here, to be sure, was predicted in Professor Ira
C. Lupu's commentary on Charles, which discussed the inherent
difficulties of the court's resolution of that case. Lupu, Home
Education, Religious Liberty and the Separation of Powers, 67
B. U. L. Rev. 971, 980 985 (1987).
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