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Thackers Win in Nebraska Supreme Court

  • Michael P. Farris, JD, LLM Hslda.org
  • 2013 6 Jun
  • COMMENTS
Thackers Win in Nebraska Supreme Court

On May 31, 2013, the Nebraska Supreme Court ruled that a family who had waited to begin homeschooling their five children until after the public schools were in session was not guilty of truancy. Eric Thacker and Gail Morgan-Thacker were accused of violating the Nebraska compulsory attendance law in 2011 because they waited until November of that year to start homeschooling. They were each charged with five counts of truancy (one for each child).

Home School Legal Defense Association represented the family, explaining to the prosecutor that Nebraska law does not require exempt homeschools to begin on the same date as public schools. But the prosecutor insisted that children were “presumed” to be enrolled in the public schools on the day classes began. Therefore, he maintained, the Thacker children had been absent from public school until their homeschool classes began.

The prosecutor offered to recommend a suspended sentence if the Thackers would plead guilty to one count apiece. Because they knew they were not guilty of any crime, the Thackers rejected this offer and chose to proceed to trial.

Citing the Law

At trial, HSLDA attorneys Darren Jones and Peter Kamakawiwoole argued that Nebraska law does not require homeschools to follow the public school calendar. It requires only that homeschools provide the required number of hours of instruction sometime in the 12-month period between July 1 and the following June 30. Jones and Kamakawiwoole showed that the Thackers had provided the Nebraska Department of Education with a calendar for the 2011-12 academic year that included all required hours of instruction by June 30.

The county-court judge found as fact that the Thackers would provide the required hours between November and June. He nevertheless agreed with the prosecutor that the children were “absent” from the time the public schools began classes until the family’s homeschool began. While the judge found the Thackers guilty of five misdemeanors, he apparently did not think they deserved punishment because he fined them $0.00. Yes, that’s right—zero dollars.

HSLDA appealed to the district court, which overturned the Thackers’ convictions. The district court concluded that no crime had been committed because Nebraska law imposes no deadline on when parents may choose to avail themselves of the homeschool provisions for the first time, as long as they provide the minimum hours of instruction required by the end of the school year.

Supreme Court Case

The prosecutor appealed and the case went to the state supreme court. HSLDA Founder and Chairman Michael P. Farris defended the family before the Nebraska Supreme Court on March 5, 2013.

In Friday’s ruling, the Nebraska Supreme Court agreed that the Thacker convictions should be thrown out. The court wrote:

The State contends that § 79-201 presumes students will be enrolled in and attending a public school until a parent enrolls his or her child in a different school that the State recognizes. It concedes that § 79-201 allows parents to educate their children in other types of legally recognized schools. But it argues that until a parent obtains the State’s recognition of a private homeschool, the child must be attending some legally recognized school during the public school calendar year. And it argues that under § 79-1601(3), the State’s recognition of a private homeschool is not effective until the Department receives a parent's notarized statement of intent.

The Thackers contend that § 79-201 only required them to have their children attend their exempt homeschool every day that it was in session and to complete the minimum hours of instruction required by law. They argue that Nebraska’s statutes do not preclude them from starting a homeschool after the public school calendar year begins or compel them to enroll their children in a public school until their homeschool begins operation.

We agree with the Thackers.

Read the Nebraska Supreme Court’s complete ruling.

Parental Rights Protected

“The Supreme Court of Nebraska did a very thorough and careful job in upholding the right of parents to direct their children’s education,” said Farris. “Contrary to the prosecutor’s argument, children are not ‘presumed’ to be enrolled in public schools.”

The Thackers were at a homeschool conference when the court made its decision. “We were so delighted to read the outcome of the case when we returned,” they wrote in reply our email notifying them of the ruling. “Thanks for all of your hard work in our case! We are so excited and blessed to have such a wonderful organization to protect homeschoolers! There aren’t enough words we can say to express our appreciation! Thank you, thank you, thank you!!”

Because the Thackers were HSLDA members, we covered every dollar of their defense. This would have cost an absolute minimum of $20,000. But the family’s out-of-pocket defense expense was zero.

If you are an HSLDA member, you had a part in this victory. Thank you for banding together with 80,000 other families to defend homeschooling! You can count on HSLDA to defend you if you are the next family a prosecutor accuses of violating compulsory attendance law in connection with homeschooling.

If you are not already a member of HSLDA, would you consider joining to add your support to the cause of homeschooling freedom?

Previous articles on the Thacker Case:

Courtesy HSLDA. Used with permission.

HSLDA Founder and Chairman Michael P. Farris is the homeschooling father of 10 children.

Home School Legal Defense Association is a nonprofit advocacy organization established to defend and advance the constitutional right of parents to direct the education of their children and to protect family freedoms. Visit us online at www.HSLDA.org.

Publication date: June 12, 2013