Recently, the Supreme Court of Texas (SCOTX) made waves with two decisions that were of great interest to homeschool families across the state. Both rulings were split decisions among the nine justices and offer victories as well as concerns.

A Shocking Decision Keeping a Child from Home

In a bewildering decision by the Texas Supreme Court, the Tutt family was denied their motion for rehearing earlier this month despite clear violations of Texas law by CPS. The Tutt family, a homeschool family from the Dallas area, has been in litigation against CPS for more than two years, after the agency illegally removed their children claiming that they did not have a “state approved” homeschool curriculum.

After the lower court missed a statutory deadline, the Tutt’s attorney filed a writ of mandamus with the SCOTX seeking relief in February 2015, to which the SCOTX requested briefings from both sides. Fourteen months later, in April 2016, even with clear deadlines passed, the court denied the family’s request for relief again with no explanation. Continuing to fight, the Tutt’s attorney then filed the motion for rehearing that has now been refused. At this point the Tutt’s child has been in foster care for more than 30 months, despite the 18-month statutory deadline for finishing the case.

While the SCOTX issued no opinion in making this decision, Justice Eva Guzman wrote an elegant dissent outlining specific reasons the district court had clearly abused its discretion:

  • by keeping the Tutt’s child past the statutory deadline;
  • by allowing evidence of the family’s homeschooling to be used to support the original removal of the children; and
  • by keeping several of the children in state custody even after finding that there was no evidence to justify the removal.

The district court has since stated that it will not set a trial for the family until sometime next year, more than three years since the family was originally taken to court by CPS and the children were illegally removed.

A grant of mandamus by the Supreme Court requires the support of six out of the nine justices. That means that at least four justices on the Texas Supreme Court did not believe that returning a child to her home was worthy of enforcing the clear intent of the statute, even when the original removal was ruled unjustified and that child had been kept out of her home for more than a year past the required deadline.

Since no official opinion was issued on the case, Texans don’t know which justices besides Justice Guzman may have sided with the family.

A Ruling Impacting Your Homeschool Freedom

On June 24 the SCOTX issued an opinion in another homeschool case, but this time with more favorable results. Justice John Devine, a homeschool dad, wrote the opinion and was joined by five of the courts other justices. The McIntyre family is a homeschool family from El Paso who was harassed by the school district on false truancy charges. In response to the false charges filed by the district, the family filed suit against the district claiming infringement of their constitutional rights.

While there were several complicated questions presented to the court in this case, two prominent issues stood out for Texas families:

  1. Whether there is an absolute, fundamental right to homeschool without any state oversight; and
  2. Whether a person claiming that the school district was violating his constitutional rights should be required to appeal his complaint through the TEA’s bureaucracy before going to court. Current Texas law requires that a party aggrieved by Texas school laws exhaust all administrative remedies before going to court.

On the first issue the court did not give any opinion, which leaves in place its ruling from 1994 in TEA v. Leeper, in which the court ruled that although parents had the right to homeschool, the state also had the right to ensure that they were meeting basic educational goals of reading, spelling, math, grammar, and a study of good citizenship. This means that Texas families remain free to homeschool as before.

On the second issue, homeschoolers scored a major victory when the court ruled in favor of the McIntyres. The majority stated that an aggrieved party is not required to appeal his complaint through the TEA’s bureaucratic processes before going to court when his complaint is based on a violation of a constitutional right, and is only incidentally related to school laws.

With these victories comes a concern. It is important to note that three of the justices on the Texas Supreme Court, led by Justice Paul Green, disagreed with the majority and dissented in an opinion written by Green. This kind of opinion is what led THSC to oppose the reelection of Justice Paul Green in the recent Republican Primary. We are grateful that Justice John Devine led the charge on this critical issue.

How Does This Impact Your Texas Family?

In the end, your family won with these two takeaways:

  1. You remain free to homeschool as before.
  2. Those who believe their constitutional rights are being violated may go directly to court and not be forced through the school bureaucracy’s system.

As with any great win, it is always wise to respect the opposition. Both opinions underscore the necessity of involvement by homeschoolers in the judicial and legislative processes. Our right to homeschool is not set in stone. Neither the legislature nor the courts possess the power to grant homeschoolers permanent relief from threats against their rights.

Without question, only constant, vigilant, and knowledgeable participation in the political and electoral processes will protect our right to homeschool and ensure that we can Keep Texas Families Free for future generations.

While your family continues to remain free, the Tutt family still needs our prayers and support. You can help the Tutt family defend their rights and bring their child home by giving to our Parental Rights Litigation Fund.

Consider joining THSC today to help us defend Texas families.