NEWS: The Religious Freedom Protection Act

The Religious Freedom Protection Act (RFPA) is a relatively new law, and it remains to be seen whether it will become a viable option for homeschoolers in PA.

Some families decided to attempt to use the RFPA for the 2003-2004 school year. Below are some links to articles about the RFPA cases, with a few comments. (Unfortunately, while there are sensible arguments on both sides of these cases, some of these reporters, especially the editorial writers, have not done their homework, and do not understand either the cases or the home ed law. It’s also becoming clear that districts vary considerably in what records they expect home educating parents to submit.)

Court Rulings:

è  A new suit was filed in state court in August of 2009. According to this article in the Pittsburgh Tribune-Review, Dr. Mark Newborn and his wife, Maryalice, want a local judge to find that the state lacks jurisdiction to require parents who home-school their children to submit documentation about their curriculum and to place limits on religious education. The Newborns contend government authorities such as school districts should not be permitted to restrict and closely monitor what is taught in the home. "The home education statute requires that Dr. and Mrs. Newborn cede jurisdiction to the school district and become excessively entangled with this government agency relative to their religious education in that the home education statute gives the superintendent authority, jurisdiction and discretion to approve the appropriateness of the religious education Dr. and Mrs. Newborn provide their children," according to the lawsuit. See also this commentary.

è  HSLDA filed an appeal on the federal constitutional questions to the Supreme Court on 11/29/2008; the court declined to hear the case on 1/26/2009. See here.

è  According to HSLDA (Aug 21, 2008), "The United States Court of Appeals for the Third Circuit ... ruled that Pennsylvania's homeschooling law, which is among the most burdensome in the country, does not violate the Free Exercise Clause of the United States Constitution. The court declined to address related claims brought under Pennsylvania's Religious Freedom Protection Act, sending them back to state court for resolution." A summary of the case, Combs v. Homer Center School District, is here, the full opinion is here.

è  According to HSLDA, (September 14, 2006), "On December 8, 2005, the Court ruled that Act 169 does not impose a "substantial burden" on the free exercise of religion. To bring the district court case to a close in a manner that would be fit for appellate review, the district court judge ordered a second round of motions in his court. He gave express permission to HSLDA to point out to him in our round-two briefing how his round-one opinion regarding "substantial burden" went astray. The court again ruled against HSLDA, granting summary judgment to the school districts on May 25, 2006. ... HSLDA has appealed the decision to the Third Circuit Court of Appeals on June 16, 2006.

è  Summer, 2006: Judge Upholds PA Home Education Law: HSLDA Suit Flops in Federal Court
Includes some text from the ruling.

Early October, 2004: Editorials and Articles

  10/25/04 Prosecutions threaten parents' rights
An interesting summary of the kind of cases HSLDA handles, now that homeschooling is legal in every state.
In Pennsylvania, several families who are home-schooling for religious reasons have had truancy charges filed for failing to comply with the Pennsylvania home-school law. These families are claiming that the law in Pennsylvania burdens their practice of religion. The Religious Freedom Protection Act (RFPA), which was passed into law in the state in 2002, provides that if a law interferes with an individual's exercise of religion, the burden shifts to the state of Pennsylvania to demonstrate that the law is of the highest importance to advance a legitimate government interest and is the least restrictive means of achieving that government interest. The HSLDA has filed a lawsuit on behalf of several families being prosecuted for truancy or facing truancy charges… It is our hope that these cases can be tried quickly and that there will be a speedy decision establishing the freedom to home-school pursuant to the RFPA.”

  10/14/04, Life lessons / Home schoolers shouldn't upset state law
These cases may turn on how restrictive Pennsylvania's rules on home schooling really are. Critics claim that they are the most restrictive in the nation, but perhaps that is because other states are foolishly negligent.”

  10/11/04, Home-school policies debated
This article is a bit different than others I’ve seen – the author surveyed quite a few superintendents (SD’s Monessen, Ringgold, Charleroi, Frazier) on the issue. A home educating mom of 10 also gives her opinion. In general, everyone seems unaware of or puzzled by the suits.
Dr. Cynthia Chelen, the district's coordinator of curriculum and instruction who tracks Monessen's home school students, said school officials have not heard complaints about how the students are monitored. Chelen said 12 home-schooled students living in the area report to Monessen school officials twice a year and take an annual standardized test as a means of assessment. “
I’m hoping that this quote is not accurate, as standardized testing is only required in grades 3, 5, and 8. I’m also interested in the idea that most of these superintendents are unaware of any homeschoolers in their districts who have concerns about the law. I wonder if these are “easy” districts in which to homeschool, or if the homeschoolers have simply not brought any concerns to the attention of the district. Monessen is in the same county as Norwin (Westmoreland) and has only a handful of home educated students.

  10/11/04, Home school parents sue state over religious freedom
This is one of the better articles I’ve seen. It quotes a number of different people.

One of the home schooling requirements is that parents submit an annual affidavit to their local school district's superintendent outlining their educational goals for their children, and then turn in a log at the end of the year that shows what subjects were taught on what days, what work was done and the time spent on it, as well as an evaluation from a neutral, certified teacher who reviews the work and interviews the child.
This is part of the problem with PA’s home education law. Some districts interpret the requirement for a “log, made contemporaneously with the instruction, which designates by title the reading materials used” to mean this kind of detailed daily record. Others are happy with much less, such as a log of books the child has used. Others, like Pittsburgh, require even less – just the evaluator’s report and the test scores (required only in 3rd, 5th, and 8th grades).

The Combs, believing the Bible gives them the responsibility for educating their children, decided this year not to submit those reports. As a result, Homer-Center School Superintendent Joseph Marcoline has filed truancy charges against them. But Sarah Pearce, acting director of the state Education Department's school services office, said it's the department's job to ensure parents are meeting minimum educational standards.
There have been scattered cases of superintendents rejecting the reports submitted by home-schooling parents, but Marcoline has never ultimately rejected such reports.”
See the state statistics on this here.

“James Mason, an attorney with the Home School Legal Defense Association, said Pennsylvania's home-schooling requirements are the most restrictive in the nation, because they call for a triple review at the end of the year, including the parents' log, the independent evaluation, and standardized tests in third, fifth and eighth grades. "It's not the burden of the paperwork so much," Mason said. "It's the authority they believe the Bible gives to them to provide and decide what appropriate education is."…”

”Marcoline, Homer-Center superintendent for the last 19 years, said the state requirements are "very simple," and it takes only a few minutes to fill out the daily log and summary of subjects taught. Those records are necessary to ensure children are receiving a proper education, he said.”
I beg to differ. Imagine having to stop after every time you read your child a bedtime story so you can record the title of the book, and submitting this list annually to the government. Now imagine having to do this throughout the day, whenever your child does something “educational”. Now add several children. We should be clear that requiring a detailed daily log takes a significant amount of a busy homeschooling mom’s precious time.

  10/4/04 Home-schoolers chafe at state law – OK, I just have to mention this, and here’s as good a place as any. It drives me crazy that newspapers continue to use the hyphenated term “home-schoolers”. Homeschoolers themselves do not use the hyphen – who better to define the correct terminology? Given the subject of these articles, it would actually be more accurate to use the term “home educators”, as there are several legal ways to homeschool in Pennsylvania, and these cases specifically apply to what the law calls “Home Education Programs”. (See Alternatives to the Home Ed. Law page for details on other homeschooling options in PA.)

Early October, 2004: A series of Editorials and Articles

  9/30/04 Parents Challenge Home-School Rules
A long article giving the details of the Combs suit in Homer Center School District. "It's not the paperwork ... the law puts the government in charge of home education and that usurps biblical authority."

  10/7/04 Having to Prove Innocence
A letter to the editor from a homeschooling dad, in response to the article above.
In this article Dr. Joseph Marcoline, superintendent of Homer-Center, is quoted: "Home-schooling requirements that a parent must comply with are very minimal." We would disagree.”
His point, while peripheral to the RFPA cases (which are NOT about the volume of homeschooling requirements), is well argued. His argument about the redundancy inherent in the PA home education law is particularly clear.
“It is particularly noteworthy, in light of other recent articles in the Gazette, that home-schoolers must seek annual approval of their children's education from a district which, based on state assessment tests, has been shown to not be giving its own students an appropriate education.”

  10/13/04 Should Follow the rules: Jock and Trish Lenzi speak out against HSLDAs Religious Freedom lawsuit
A letter to the editor from a Christian homeschooling family in response to the letter above, criticizing the RFPA suits.

  10/16/04 Whose Rules to Follow
A letter to the editor from the Combs family, in response to the letter above, further clarifying their beliefs.

Two New Cases! Late September, 2004

  9/28/04, Homeschooling law challenged
Two new families have filed RFPA cases.
”…Thomas and Timari Prevish filed suit against the Norwin School District, and Darrell and Kathleen Combs filed suit against Homer-Center School District in Indiana County yesterday. Both sets of parents are represented by Titusville attorney Richard Winkler, who could not be reached for comment. Both complaints state that Pennsylvania's Religious Freedom Protection Act nullifies requirements in the state's school code that force home-schoolers (sic) to present proof of curriculum and course work done. The couple said Norwin School District Superintendent Richard Watson elected to conduct a compulsory review of their education plan when they refused to meet with him to lay out their education plan for their children. The Combses sued after Superintendent Joseph F. Marcoline didn't initiate a hearing, but charged them with truancy instead. Their suit states Marcoline improperly skipped the step of a hearing….

Early September 2004 Articles:

  9/1/04, Agape Press: Christian Family Fights to Home School Without State Oversight – This brief article clearly articulates the Newborn family’s religious objections to complying with the law. (Finally!) MaryAlice Newborn … says she does not object to the state's burdensome paperwork, but rather to the necessity of seeking the public school superintendent's final approval over her children's education. "It's that approval that we feel is unscriptural," Newborn says. "It's clear to us that God has called us to home school. It's clear to us that Christ is the head of all men and the father is the head of the family, and that [we are not to] give what is holy to the unholy. And yet, every year, we turn over our religious education to the secular school district for their approval." … she says they … object to the government having oversight in the matter of her children's godly education, which she and her husband view as their biblically-mandated responsibility as Christian parents.” (This article discusses the Hankin family’s objections, and this details the Newborns’ constitutional concerns.)

More Late August 2004 Articles and Editorials:

Here are two well-researched articles on the RFPA cases – a breath of fresh air after last week’s rash of sloppy reporting.

  8/29/04: State sets the rules ( – This is one of the best articles on the RFPA cases so far, in that the author seems to have done her homework and taken care to get the facts right.
One point - Tom Stubits, of the PDE’s school services division, is quoted as saying “the bottom line is that somewhere down the line if you want to put them back in school, we need to know where they are at.” This is simply not the purpose of the required paperwork. (You may remember seeing this argument before in this article) Stubits perhaps doesn’t realize that even bricks-and-mortar schools do not all teach the same things in the same grade. There are quite dramatic differences – for example, some schools teach some ancient history in the elementary years, and some do not teach it at all until middle school. In addition, not every student learns at the same pace. Ideally, any student who transfers from another school (including homeschool) should be evaluated for appropriate placement. In reality, most transfer students are automatically placed in the usual grade for their age, unless there are strong apparent reasons not to do so. I’m not sure that a home education portfolio would be particularly helpful for placement purposes, as it is generally not designed as a transcript or report card. High school may be somewhat of an exception to all of this, in that credits may have to be transferred, but in that case it is, IMHO, clearly the responsibility of the previously home-educated student to produce appropriate records to show that they have earned transferable credits.

  Christian Science Monitor 8/31/2004: Does the state have a right to monitor?
Another well-researched article, this one with a nice pic of the Newborn Family. This article more clearly explains the Hankin and Newborn families’ religious objections to the home education law’s requirements. Note that each family is slightly different in their beliefs, as one would expect. Worth a read.

  8/29/04 -- A quiet revolution ( – A nice, positive, “back to school” piece on homeschooling. No mention of the RFPA cases.

Mid August 2004 EDITORIALS:

  Patriot-News 8/17/04: Why Hold Homeschoolers To a Higher Standard?
A “counterpoint” response to the article below. The first “pro-RFPA-cases” article I’ve seen.

  Patriot-Record 8/11/04: Homeschools
Not a particularly imaginative headline, is it? This article baffles me. The author doesn’t understand the issues involved in the RFA suits, has clearly read only news stories and used no primary sources, and he completely waffles on his opinions. Do reporters have to do any research at all, or just spout uninformed opinions and get a paycheck?

uring much of that period, the state Department of Education has scrambled to develop regulations to assure that homeschooled kids are getting an education at least on par with standards for the public and private schools.” This sentence sounds really neat, but I’m not sure it’s accurate. The Home Education Law, while somewhat unclear in places, pretty much lays out the rules for home education programs in PA. As far as I know, there’s been little if any scrambling by the PDE. And just to be clear, home educators do NOT need to meet “standards for the public and private schools”. OK, let’s move on.

“These regulations and the oversight they require have passed on to homeschooling families a flurry of paper work dealing with such matters as attendance, curriculum, materials, charting -- and testing, testing, testing.” OK, lets take that one apart. Attendance is a no-brainer in a homeschool, but for those who can’t think that far outside the box, one can use a
simple one-page attendance calendar to show 180 days of “school”. Curriculum and materials are none of the state’s business, except that “reading materials” must be logged. What’s all this “charting” stuff? Oh, that’s from Abigail Eagleson. Um, sometimes 13-year-olds, however nice, aren’t accurate sources when it comes to the law. Read The Law for yourself – no charting of anything is required. Now – “testing, testing, testing”. That’s actually pretty accurate. Home educated students in PA must take a standardized test exactly three times during their K-12 years.

Some homeschoolers say they have had enough of it. The Home School Legal Defense Association is exploring a challenge to the state's homeschooling records-keeping regulations by using Pennsylvania's religious freedom act, on grounds that many homeschoolers tend to be religious and have many children.”
OK, this is the worst warping of the case that I’ve seen. The Newborn suit is NOT about the volume of paperwork, and is certainly NOT based on the idea that homeschoolers have many children. This idea probably came from a quote from HSLDA in this article. Honestly, it’s not that hard to find the primary sources for this case – Here’s
The Law, here’s the case. See? Now you’ve read more than the reporter.

”It's a stretch to prove any religious discrimination from Pennsylvania's homeschooling laws. Paper work is always an aggravation -- even the organized schools will be quick to affirm that.”
Again – this case is NOT about the volume of paperwork, and if the reporter had done his homework, he’d have known that.

”…But homeschooling, like organized public and private schooling, is not perfect and it is up to the Department of Education to make sure that homeschooled students are equipped for the challenges of college or career that follow. To ignore this responsibility or to permit a parallel system "for homeschoolers only" would be unfair to students and their families and an absolute nightmare for college admissions.”
Huh? What do college admissions have to do with it? What “parallel system”?
Folks, it just gets worst from there. Ugh.

Mid August 2004 EDITORIALS:

  Pocono Record 8/11/04: Homeschoolers need to report progress, too
Worth reading. ”School officials who review the required reports don’t really give a hoot whether the home-schooled child’s education has a religious bent. What they want to see is evidence that the child is receiving basic instruction in reading, math, social studies and the like. They know how essential a basic education is to a child’s future success.”

  Pocono Record Online, 8/15/04: School districts, homeschoolers still have a duty to each other – Another editorial critical of the RFPA cases, written by someone (a former homeschool dad) who apparently hasn’t read them. The unnamed author argues that reporting is important, because when a homeschooled child enrolls in school, Educators need to have some clue about what these students learned in order to ensure a successful integration.” He completely misunderstands the idea that the RFPA cases are NOT objecting to keeping records. : The Dark Side of Home Schooling – Not about the RFPA cases, but a nowadays-rare negative article about homeschooling. “Judith Wagner, a professor of child development and education at Whittier College, said that parents considering home schooling their children should ask themselves, "What am I doing by making my child so different from all the other kids in the neighborhood?" Um, two of the three little girls on my street are homeschooled. By Judith’s logic, that means homeschooling is the right choice for all three of them. Huh? Didn’t Judith’s mom ever tell her that just because everybody else is doing something doesn’t mean you should too? Shouldn’t parents make educational choices based on their child’s needs and their family’s values and resources, not on what everyone else is doing?

  Patriot-News, 8/9/04: Abigail Eagleson, 13: keeping portfolio was drudgery. Kimber Stevenson, 18: It was easy and fun. – Yet another article that grossly overstates the requirements of the PA home ed law. The law requires “a log, made contemporaneously with the instruction, which designates by title the reading materials used”. Most people I know keep a log of books their child has read and a simple one-page calendar of “school days”. Even if you use the PDE’s & HSLDA’s more stringent interpretation of the log, a simple check-off chart like this will suffice.

  Aug 6, 2004 –HSLDAs update on the Newborn RFPA case. Basically the judge decided to hear the case. (Note that, contrary to this article, homeschool families in PA do NOT need to provide “detailed curriculum” -- a simple one-page statement of objectives is sufficient; no mention of specific curriculum is needed -- nor do they need to “submit to regular testing” -- children need only be tested 3 times during the K-12 years.)

Early August 2004 EDITORIALS:

  Here are a few editorials/letters critical of the RFPA cases. So far, I have not seen any in favor of the cases. Please email me if you find any!

  Philadelphia Inquirer | 08/05/2004 | A sin to dismiss home-school law – an editorial critical of the Hankin’s RFPA case.

  Philadelphia Inquirer | 08/03/2004 | Letters | Children belong to God, not to parents or state – a letter to the editor critical of the Newborn RFPA case.

  --7/31/2004 - Editorial: Religion Beside Point of Lawsuit – This editorial, critical of the RFPA cases, is from The Sentinel in Carlisle. Here are a few excerpts.
It sounds to us like these families are confusing freedom with responsibility. In neither case is their right to teach their own children at issue. Their complaint is with a law passed especially to give legal status to families who homeschool. Before that law, homeschooling families were subject to investigation by child welfare agencies who were unfamiliar with or unsympathetic to the families' chosen way of life. In 1988 the General Assembly passed the Homeschooling Act, which sets up the reporting requirements these families now object to, but the law also prevents local authorities from interfering in a couple's decision to teach their children at home.Maryalice Newborn, one of the litigants, told the AP, "The parents are the stewards over the child, not the state." In a perfect world, that would be the ultimate argument. But in a world where parents sometimes neglect their responsibilities, it falls to the state to clean up the mess left behind by those who don't take their duties as seriously as the Newborns and the Hankins….”

Late July/Early August 2004 Articles:

         As the Newborn case goes to court (starting 7/28/04), there are quite a few news stories about the case. (It should be noted that many of these stories include inaccurate information about PA’s homeschooling requirements.)
Parents test home-school laws -
Focus on the Family: Experts Watch Home School Legal Challenge : Pa. Home Schooling Oversight Challenged
Here are a few more versions of essentially the same stories:

Religious freedom law used to challenge home schooling oversight, | 08/03/2004 | Religious parents sue over home-school law,
Yahoo! News - Pa. Home Schooling Oversight Challenged,
AP Wire | 08/02/2004 | Pa. Home Schooling Oversight Challenged,
Observer-Reporter: Religious freedom act used to fight home-schooling regulations,
WCCO: Families cite religious freedom law to challenge Pennsylvania’s home schooling oversight

  Philadelphia Inquirer | 07/28/2004 | A Bucks County couple have sued a school district, challenging rules to monitor their children's education. – This is another, more detailed article focusing primarily on the underground Hankin family. It’s well worth reading the entire article. Here are some excerpts:
“…Now, in a test case watched by homeschoolers nationwide, the Hankins have sued the Bristol Township School District, saying the government has no right to monitor their children's "holy and sacred education," and that complying with the state's home school law would be a sin. They base their case on the Pennsylvania Religious Freedom Protection Act, which allows a person to challenge any state or local law if it "substantially burdens" that person's religious beliefs. Since a federal version of the law was declared unconstitutional in 1997 by the U.S. Supreme Court, a range of religious organizations successfully lobbied for a dozen state versions. …When the act passed in Pennsylvania in November 2002, supporters applauded lawmakers for "standing up for freedom of religion." Critics called it "a dangerous law" that could have unintended results. The Hankins are among the first to put the law to the test. … Filed in April, their case is the second of its kind to go to court, and part of a larger movement of homeschoolers seeking religious exemption from the state's home-education statute. … As many as 50 families of homeschoolers have written to local school districts requesting religious exemption, the Home School Legal Defense Association reports. … "We've been given this opportunity with RFPA to win some of our freedoms back, and I'm going to take advantage of it," said Sue Rothermel, a homeschooling mother of six in York County. Homeschoolers such as Rothermel argue that God entrusts parents to educate children, and the government has no right to interfere. … "It comes down to, who owns the child - the parents or the state?" said Maryalice Newborn, a plaintiff in the state's first case, filed in Westmoreland County in February and scheduled to go to court Friday [7/30/04]. … Homeschoolers will have to prove that the state's requirements place a "substantial burden" on their religious freedom. The state must prove that it has a "compelling interest" to enforce those requirements, and is using "the least restrictive means" to meet its interest…

  5/6/2004 -- Home-school suit centers on religious freedomMore than 50 Pennsylvania families who home school their children for religious reasons are using a little-known state law to force school districts out of the educational process...Tom and Babette Hankin of Croydon said these requirements are a substantial burden on their religious expression...In February, Mark and Maryalice Newborn filed a similar lawsuit against the Franklin Regional School District in Westmoreland County court. The Hankins and the Newborns don't have a chance, according to the ACLU… “ [I don’t think the ACLU representative really understood the nature of the suit. This article also has a quote from Norma Young that’s worth reading.]

  5/6/2004 -- Couple say district should butt out of home-schooling“A pastor from the couple's church attests in the lawsuit that their children's education is based on religion. The Hankins wrote letters to the district… protesting the home-schooling requirements, citing religious freedom. Then school officials mailed truancy notices to the Hankins. The Hankins claim the state's Religious Freedom Protection Act and the Constitution's First and 14th amendments protect them. The lawsuit alleges that requiring parents to list what educational materials they use to teach their children is an invasion of privacy.”

  4/28/2004 -- NEPA News - “A Bucks County couple who home school their children object to a law that the local school district approve their teaching plan. Thomas and Babette Hankin filed suit Monday against the Bristol Township School District, saying its involvement violates their religious and privacy rights. The couple has seven children, four of them school-age…School officials discovered in March that the family was not complying with the district's home-schooling requirements…”

Some RFA information from HSLDA:

  7/15/2003 E-lert--Religious Freedom Act May Provide Relief From Homeschool Law -- Describes HSLDA’s packet of information for families who are considering using this law. The packet itself, which is very informative, is here , but you must be a member of HSLDA to access it.

  2/24/2003 -- Chris Klicka Letter on Pennsylvania RFA -- A brief intro to the RFPA.

  1/16/2003 -- Pennsylvania Religious Freedom Bill Becomes Law – from HSLDA.

Again – this is a new law, and it remains to be seen whether it will prove useful to homeschoolers.