(Purcellville, VA) The New Hampshire Supreme Court ruled today in favor of a divorced father who wanted his previously homeschooled daughter enrolled in public school. In the contentious case, Matter of Kurowski, the court confined itself to the facts and circumstances of the case holding that the trial court did not exceed its "discretion" when it ordered the homeschooled girl into public school.

In its opinion, the Court found that there was "an objective basis sufficient to sustain the trial court’s discretionary judgment." However, the Court stated that it was NOT giving an opinion as to which form of education among public, private, or homeschooling is "most suitable" for children. The Court also recognized that "in recent years home schooling has become a widely used alternative to more traditional public or private schools. . . ."

HSLDA disagrees with the Supreme Court’s ruling in this case and had filed an amicus brief in support of the mother who was being represented by ADF allied attorney John Anthony Simmons. HSLDA became involved because the lower court’s ruling could have been read to create precedent in favor of public education over homeschooling. The Court flatly rejected that the lower ruling created any such precedent and HSLDA will oppose any efforts to wrongly use the case beyond its limited scope.

The court recognized that fit parents have a fundamental right to direct the education and upbringing of their children. Citing a string of United States Supreme Court cases the court noted, however, as between two divorced parents who share identical rights, courts have the difficult role of making "difficult and sensitive decisions in a highly contentious atmosphere." HSLDA’s attorney for Member Affairs in NH, Michael Donnelly, who as a NH licensed attorney submitted the amicus brief, noted that he was disappointed but not surprised by the court’s ruling.

"We are disappointed that this young girl is being forced to attend a public school over her mother’s, and reportedly her own, wishes," Donnelly said. "However, the NH Supreme Court confined its ruling to this case and these facts avoiding any collateral impact on the rights of other parents in New Hampshire who homeschool their children. While the lower court’s decision could have been read to create a presumption in favor of public education over homeschooling, the court emphatically rejected this notion."

1 comment
  1. The NH Supreme Court was patently wrong on the Constitutional issue.

    First, as with all family law cases, there is “state action”, the parents were obliged to participate in the judicial process and the resulting judicial order has force of law, as it was not a non-binding “suggestion” but rather an “order” by the state. If the Court’s reasoning were accurate, all judicial orders could be viewed as lacking state action. In contrast, the landmark US Supreme Court case <>, is authority for the premise state action is found in a judge making a judicial decision.

    Second, the Court uses unconventional logic to “reason” that strict scrutiny does not apply. After conceding the US Constitution requires strict scrutiny (compelling state interest, nexus, least intrusive means) when the government interferes with parenting, the Court proceeds to create an exception to the general rule by stating that there is no authority extending this constitutional safeguard when the parties are both custodial parents. Conventional legal reasoning would require the state court to find authority before creating an exception to the general rule (as the Court has done here) not the other way around.

    Third, the ruling of the New Hampshire Supreme Court is patently un-Constitutional. According to the Court, a family court judge may now make an “order” that interferes with a parent’s right to parent his/her child (A) without being limited to a less intrusive means of achieving the same compelling state interest, and (B) without being limited to a compelling state interest (i.e., using a broad definition of “child’s best interest”). Moreover, (as the Court has stated) trial courts enjoy the “widest discretion”. Thus, when one combines “widest discretion” with a governmental interference with the fundamental right of parenting, you arrive at the “unfettered governmental discretion interfering with fundamental rights” that the US Supreme Court has repeatedly found to be repugnant to the Constitution.

    What the New Hampshire Supreme Court should have done was conform its affirmance (or reversal) to the Constitution. This could easily have been done by:

    (1) Confirming that the well-established Constitutional safeguards are not affected by this case;

    (2) Pointing out that the peaceful selection of a child’s school, when disputed by two custodial parents having equal rights is a “compelling state interest”, and the judge’s order reaches this objective (i.e., has “nexus”); and,

    (3A –for Affirmance) State as rationale there was no “less intrusive means” to make the order (i.e., one parent wanted homeschool, the other wanted public school, and there was no middle ground); or,

    (3B –for Reversal) Remand the case back to the trial court to find a solution that is “the least restrictive” on each parents’ respective rights (this can be done by the parties or sua sponte, moreover, this is very similar to a conflict of law analysis where federal courts have to balance the competing interests of two similarly situated states, for example).

    This opinion is a disaster. Hopefully, one or both parties will file a motion for rehearing under Rule 22, or at least the Court will file a formal revision before publication. Otherwise, hopefully, smart members of the state bar who dare venture into district court will raise a federal Constitutional claim there, as there is no longer a state remedy. In which case, hopefully, the district court will find that there is no support for abstention doctrines and will interpret the law accurately. Ah, what a great opportunity to get into the case books!

    Great job New Hampshire Supreme Court!

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