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Certified Tutor Provision Clarified by Court

Homeschooler Wins Case in Virginia

After all the years Home School Legal Defense Association has spent fighting teacher certification requirements for homeschoolers, it is ironic to find ourselves in court defending parents’ right to homeschool under the certified teacher provision.

Charles and Nancy Berlin, of Manassas, Virginia, have two children and have been homeschooling for three years. Until this year, however, their oldest child had not been of compulsory school age. Since Mrs. Berlin is a state-certified teacher, they chose to operate their homeschool under Virginia’s certified teacher statute (§22.1-254(A)).

The Prince William County School Board, however, challenged the right of the Berlins to homeschool under the certified teacher statute, insisting that they operate under the homeschool law. Virginia’s homeschool law, of course, imposes several other requirements, including testing, which are not required of certified tutors under the statute.

In spite of the fact that HSLDA won a case in Bedford County, Commonwealth v. Shiflett in March 1988, which upheld the right of parents to operate under the certified tutor statute, Prince William County insisted on taking the Berlins to court.

On November 24, 1993, Prince William County School Board v. Charles Berlin was argued in Circuit Court before Judge Richard Potter. The school board attorney argued that the certified tutor option was really only for non-parents. The school board also asserted that the homeschool law, passed in 1984, was the exclusive option for parents who were choosing to homeschool.

Attorney Klicka, defending the Berlins, pointed out that the school board’s argument ignores the fact that parents can legally homeschool under other options, including the religious exemption option, the five-year-old exemption option, and the health exemption. Furthermore, Klicka argued that the Virginia legislature specifically intended the certified tutor option to apply to parents who homeschool their children as well as to non-parents. In an earlier Virginia Supreme Court case in 1982, the Court specifically stated that the certified tutor option was available to parents who homeschool their children. In fact, at that time, that was the only way homeschoolers could legally operate in the state of Virginia. Klicka emphasized that there was no conflict between the homeschool law and the certified tutor option. Parents who qualified under the certified tutor option could choose it over the homeschool statute option. HSLDA asked the Circuit Court to deny the school board’s motion for a summary judgment.

The Prince William County Circuit Court ruled in favor of the Berlin family and stated,

“Now, in plain reading, it seems to me this gives a parent four choices; you send your child to public school, you send your child to a private school, you have you child taught by a tutor or teacher, either in the home or outside the home, by the parent or by a non-parent, or you provide for home instruction as described in 22.1-254.1. The Court notes that the term “tutor” or “teacher” is not defined as parent or non-parent. The term “tutor” or “teacher” is not defined as in the home or out of the home, but I did note that in the Grigg case, the Court found that it was an intent, that was to include home teaching (emphasis added).”

The Court is simply stating here that according to the Virginia legislature’s intent, the Virginia Supreme Court’s decision in Grigg, and the plain reading of the statute, the certified tutor option applies to parents as well as non-parents. Therefore, any parent who meets the qualifications of a tutor or teacher under §22.1-254 can legally teach their children under this option rather than under the homeschool statute. The Court concludes:

“I don’t think these two code sections are in conflict. I think these two code sections are very clear. I think it gives you four alternatives. The fourth alternative is described in §22.1-254.1. That fourth alternative, by definition in §22.1-254.1, was not meant to define the other three alternatives, nor do I see any legislative intent to limit the tutor or teacher either to the home as a place of location or to the non-parent. So clearly, the statute provides for teaching within the home by a tutor or teacher of qualifications prescribed by the Board of Education and approved by the Division Superintendent. The facts as stipulated to me for the purpose of this summary judgment motion, I must deny the motion for summary judgment at this time. If, in fact, those facts are proven, it seems to me that this woman meets the third alternative which is to be a teacher within the home who is qualified pursuant to the requirements of the Board of Education and has been approved by the Division Superintendent, and she need not meet the requirements of the fourth alternative, which are defined in 22.1-254.1.”

Finding no conflict between the homeschool statute and the certified tutor statute, the Prince William County Circuit Court ruled in favor of the Berlins. The court’s ruling clearly states that these were just two options from which parents could choose if they were qualified. The Court then signed an order denying Prince William County’s motion for summary judgment. As a result, the Prince William County School Board formally dismissed their declaratory judgment action.

HSLDA is thankful to the Lord for providing this victory in the Berlin case. This case will be significant in convincing half a dozen other school districts who are challenging the right of parents to operate under the certified tutor statute.

©From the Home School Court Report, January/February 1994. Reprinted with permission.

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