A mother homeschooling her children with learning disabilities
is victorious after a year-long battle against the state of
Colorado, which sought to remove her children from her home and
send them to public school.
In the fall of 2011, a social services worker showed up at the
door of Josslyn Kittinger (real name withheld to protect privacy)
to investigate her ability to properly educate her special needs
children. The uninvited visit was attributed to an anonymous tip
from a neighbor complaining that Kittinger was unfit to instruct
her children and that they would receive a better education through
And the reason for the unwarranted intrusion that would last for
months on end?
Prosecutors, Kittinger's neighbors and the social services
investigator all persistently argued that the mother had no right
to homeschool her own children because their learning disabilities
required state instruction.
But is this a right that can be questioned or taken away? Not
according to Home School Legal Defense Association staff
attorney Michael P. Donnelly, Esq., who also serves as its director
of international relations.
"Many families homeschool their children who have learning
disabilities because they find that the children's needs are better
met in a one-on-one homeschool setting -- research shows that this
is true," Donnelly contends. "It is intolerable that someone would
question a family's right to homeschool simply because their
children have a learning disability."
However, this contention shared with Ms. Kittinger did not deter
further unwanted state involvement for long.
License for home invasion?
Even though the investigating social worker left after the
initial visitation -- when Kittinger followed Donnelly's
recommendation on the phone and cordially requested the state agent
to leave -- a return visit would soon follow.
A few days after the initial visitation -- going on nothing more
than a neighbor's comment and a drive-by in front of the
Kittinger's house -- the social worker made an unfounded and
fallacious determination that the family was preparing to escape to
another state. Reporting the unsubstantiated findings to a local
court, the investigator pursued and attained a court order,
granting legal authority to remove the children from the Kittenger
home and take them into state custody in order to send them to
But instead of proceeding to carry out the verbal order, the
social worker allowed Ms. Kittinger to retain custody of her
children for the time being, on the condition she prove that she
was legally homeschooling her children and was never intending on
fleeing the state of Colorado. Following the protocol that ensues
the issuance of a court order, a lawsuit was filed against the
homeschooling mother, with a state prosecutor alleging that she was
guilty of educational neglect of her children.
Moving forward in the suit after attaining legal representation
from HSLDA local counsel James Rouse, Ms. Kittinger was able to
have the social worker's court order nullified in the initial court
hearing -- after showing that according to Colorado state law, she
was homeschooling legally with an independent school. This is one
of the two ways children can be homeschooled in the Centennial
State; the other requires legal guardians to file notifications
directly with school districts on an annual basis.
The early victory, however, did not convince the state
prosecutor to drop the case, which protracted to three hearings in
the fall of 2011, and then a five-day trial, in which Donnelly
defended Ms. Kittinger in December and the following March.
After an expert witness, Steven Duvall, Ph.D., provided evidence
that Ms. Kittinger was providing a satisfactory level of education
for her children under state law on the trial's first day, and just
hours before the second trial date in March, the social worker
dismissed the lawsuit. From his numerous visitations to the
Kittinger home, he concluded that there was no proof of educational
neglect, and he proceeded to persuade his prosecutor to concede the
argument against the family and settle the case.
A proper defense
Even though this case came to a positive conclusion in regards
to parents' rights to educate their children, many parents, when
standing alone, are unable to counter challenges brought on by the
state when it vies for the control of children's instruction.
"This victory is important for all homeschooling parents,
because it strengthens the idea that all children have the right to
be homeschooled and the need for HSLDA," Donnelly asserts. "How
would this single mother have defended herself?
It is contended that the odds are against homeschoolers when
government officials go after them to compel attendance in public
schools, as Donnelly is skeptical that Ms. Kittinger would have
fared well if left to her own devices without a powerful legal
counsel geared to wage an all-out war against state
"The resources needed for this were far beyond her own means,
and most court-appointed defenders simply do not have the
experience or sympathy to aggressively defend a mom homeschooling
in this situation," concluded Donnelly, who along with his wife,
homeschools their seven children. "I consider it a privilege to
have been allowed to defend this mom who was doing what I believe
was indeed best for her children."
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