NOTE: This issue has been resolved, and is only still posted for historical interest.
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Dear Home Schoolers and Friends,
For the past several days we have been working on a summary of the recent suit filed in federal court by HSLDA, requesting that home schools not be considered private schools under the Gun Free School Zones Act. We feel this action is unwarranted, unnecessary, and potentially threatening to home schooling freedoms everywhere.
Please read the summary below. We are hoping to build a national coalition of organizations, support groups, individuals and others who are opposed to this suit, and we invite you to consider joining us.
The Home School Legal Defense Association has filed a complaint in federal court requesting a declaratory judgment that "home schools are NOT private schools."
On August 20, 1997, eleven months after passage of the federal Gun-free School Zone Amendment, HSLDA is seeking judicial relief for four fathers who legally home school their children under Texas private school law and who also own and maintain firearms in their residences for sporting purposes. HSLDA alleges that their plaintiffs, along with home schools in 16 other states where home schoolers operate "private schools," have "no adequate remedy at law" as "it is unlawful for any individual knowingly to possess a firearm . . . in a school zone."
FINDING BACKGROUND INFORMATION
The complaint, ' Perez v. Reno ,' can be obtained by writing the Clerk of the US District Court for the Western District of Texas, San Antonio Division. The action # is SA97CA1023. On the net, the complaint can found at:
< http://www.n-link.com/~csmith/txhslda/perez.htm &gt; [Link dead.]
The Gun-free School Zone Act can be found in section 922 (q) of title 18, U.S.C. or at:
"Home schools" are not defined in either Texas or federal statute. According to the Leeper decision, Texas home schools are legally considered "private schools." By means of this complaint, HSLDA is creating an opportunity for the federal court to define "home schools," making common law.
The obvious danger in being treated SEPARATELY from "private schools" is that home schools may no longer be able to continue enjoying EQUAL protection with "private schools." If HSLDA gets its way, the protection afforded TX home schools under the Leeper decision may be overridden by federal court opinion. Would not federal and/or State regulation follow?
Under the Gun Free School Zone Act EXPLICIT RELIEF IS AVAILABLE for any individual participating in a program "approved" by a private school. There is no burden experienced by plaintiffs operating as a PRIVATE home school within a private RESIDENCE. The home school may approve any firearm program it sees fit to authorize for the residence. In a private home school, "approval" is de facto granted for any legitimate firearm program (i.e., hunting, target shooting, or personal protection) in which any member of the family engages.
Were there truly a problem for private schools who wish to use firearms, we most certainly would have heard numerous complaints from several dozen private military academies across the country.
Private schools need not place firearms in the educational program in order to "approve" their use on campus. Not only can, e.g., private military academies approve the use of firearms on campus, but, e.g., non-military private schools can approve the use of their facilities by individuals or groups for the purpose of, say, a gun show or exhibit. Students attending the private school NEED NOT PARTICIPATE in the firearm activity in order for the program to be "approved" by the school.
Correspondingly, a teacher who lives in a residence on a private school campus would be required to abide by the rules of the school with respect to firearms. Such a RESIDENCE is not the private property of the individual, but part of the private SCHOOL property. Judicial relief should not be expected in this case as it would violate the private contractual agreement between the school and employee.
Finally, persons living in a private residence within 1000 ft. of a gun-free school zone, which is NOT part of the school grounds, have explicit relief under the Act.
Given the leeway allowed private schools (which home schools in Texas legally are) to approve any firearm program at all, it's clear that the plaintiffs have sufficient relief from any alleged prohibition in their private residence. It would seem that the court has grounds to throw the suit out of court for insufficient standing: there is no demonstrable evidence of harm to the plaintiffs.
Furthermore, HSLDA's complaint embodies a CONTRADICTION. On the one hand the plaintiffs acknowledge their private school status for the purpose of education. On the other hand they deny it for the purpose of firearm possession.
THE COMPLAINT AFFECTS HOME SCHOOLS ACROSS THE COUNTRY
Will the court dismiss the complaint, or will it decide to recognize a difference between "home schools" and "private schools?" That's the risk, and the repercussions would adversely affect home schools not just in Texas, but AL, AK, CA, CT, DE, IA, ID, IL, IN, KS, KY, MA, NB, NJ, OK and SD.
HSLDA asks that home schools be excluded from the meaning of "private school" -- for the purpose of this Act only. However, if an exclusion is made EVEN ONCE, what would prevent any of the 17 states, or the federal government, from citing this decision as reason to deny home schools their "private school" status and use it as the gateway to regulate home school programs? This one judicial decision could revoke the "private school" status of nearly half the home schools in this country without the vote of a single State representative.
This is a centralized power grab. Make no mistake about it - a request for a declaratory judgment cannot be implemented WITHOUT a FEDERAL definition of "home schools." Who will enforce it: the DOE, or perhaps the BATF?
In the other 33 states, where home schools "are treated as a SEPARATE educational category distinct from private school" they LACK the necessary authority to approve a program for their school to include firearms. This is particularly problematic for those states wherein curriculum approval is necessary in order to be permitted to initiate a home school program, such as in New Hampshire, Maine and South Carolina. Even if "home schools" are exempted in the statutory definition of "school zones," eliminating any potential problem at the state level, it's an open question whether federal enforcement will be a problem.
Only statutory home school programs operating under the supervision of the public schools, i.e. complying with an explicit Home Education statute, will have cause for alarm should they own any firearms. The possession of loaded or unlocked firearms in a school zone in these states is problematic. Under 922 (q)(2)(B)(ii) it appears that a CCW (Concealed Carry Waiver: license to carry a loaded firearm) may provide an exemption, if CCWs are easily obtainable in the particular state.
THE BATF's INVOLVEMENT
The proximate cause of HSLDA's complaint seems to be a letter from BATF Director John Magaw to Senator Dan Coats. HSLDA claimed this letter was private and confidential even though it appears to be the basis of their complaint. HSLDA therefore refuses to make it public. How could the remarks of a public official to another public official acting in a official capacity be anything but public information? A purported copy of Magaw's letter can be found at:
< http://rampages.onramp.net/~gunowner/McGoo.htm &gt; [Link dead.]
The letter is brief and factual. Magaw wrote that "Should a 'home' school be recognized by State law as a 'school' as defined by section 921(a)(26), the possession of a firearm on the grounds of such school or within 1,000 feet of school grounds would violate the law." However, even the BATF director notes that "there are a number of exceptions to the prohibition" of firearm possession, including an exception for "firearms possessed on private property."
Unfortunately, in order for private property to be exempt from the prohibition it must NOT be part of school grounds. For statutory home schools, private property and the school grounds are one and the same.
Looking at section 921 of federal code, a "school zone" in defined as "the grounds of . . . or within a distance of 1,000 feet from the grounds of a public, parochial or private school." The term "school" is defined as "a school which provides elementary or secondary education, as determined under State law."
It is unclear whether Magaw is referring to "private schools" as HSLDA alleges, or statutory "home schools." Perhaps Magaw is unfamiliar with the difference between "private" and "statutory" home schools.
If HSLDA were so concerned that the BATF wanted to prosecute home schools for firearms possession, why would they grant federal court an opportunity to define, and thus regulate, home schools on the federal level?
In any case, the primary effect of the firearms prohibition of this Act, except for statutory home schools, is to federally regulate INTRASTATE transportation of firearms. Either the firearm must be unloaded in a locked container, or a CCW with a background check is necessary, in order to override the prohibition when transporting firearms within a designated gun-free school zone.
In the case of statutory "home schools" the prohibition goes further, banning loaded or unlocked POSSESSION of firearms on private property since the RESIDENCE is part of the SCHOOL grounds. Under such conditions, how is self-defense possible? Statutory home schools are not treated equitably with respect to private schools.
WHO STANDS TO BENEFIT FROM THIS COMPLAINT?
Why did HSLDA lawyers not challenge the Act in a statutory home school state? Why did they pick Texas for their complaint? Is an oversight of this magnitude possible by competent lawyers, or is this deliberate?
There is certainly significant government interest in REMOVING the disparity in treatment between home schoolers in "private school states" versus home schoolers in "home school states." The government can not regulate "private schools," only statutory "home schools." Not only would the government's interests be furthered by removing this distinction, so would the pecuniary interests of HSLDA as statutory home schools are continually in need of legal assistance when operating under State regulation.
If home schools are NOT private, then they are open game for State regulation. There is no middle ground between what is "private" and what is not. Let us not pretend that statutory home schools are some sort of quasi-private entity, such as the U.S. Post Office. There is no such thing as a private, yet State regulated, home school. That's an oxymoron.
What's more, is it appropriate for a federal court to decide this critical issue, by-passing 17 State legislatures?
The only relief for home schoolers across the country would be for HSLDA to withdraw this complaint immediately. HSLDA is not doing a service for home schools, nor gunowners, by submitting this complaint.
THE EMERGING PATTERN
Our concern is the pattern that's emerging. First, HSLDA inserts clauses in federal statute "exempting home schools" without defining the term "home school" (which by the way means these clauses have no legal effect unless and until common law exists). Next, HSLDA attempts to drive the process of defining "home school" in federal common law, there having been no prosecutions under the statutory language they created. Having defined "home schools," the final step will be regulation, enacting home school statutes in every state.
Whether or not State regulation is HSLDA's intent, it will be the net result. You can't regulate something without defining it. Home schools are safe from regulation as long as they remain under the protective umbrella of "private schools."
WHAT CAN BE DONE?
If home schools are EXCLUDED from the definition of "private schools" as requested by HSLDA, regulation will follow.
HSLDA has a privileged tax exempt status because they nominally SERVE the interests of ALL home schoolers. Whether you are a member or not, notify HSLDA that you want them to withdraw the complaint. Please contact HSLDA and tell them to protect YOUR interests.
Home School Legal Defense Association PO Box 3000 Purcellville VA 20134
Phone: (540) 338-5600 Fax: (540) 338-2733
Email: Scott Somerville <Scott@hslda.org> [Issue over. Do not email Scott any more about this topic.]
Contact any home schoolers you know who may not be aware of what is happening and ask them to contact HSLDA. Help build and maintain a network of communication among the home schoolers you know to keep everyone informed.
Home schoolers might also contact the plaintiffs directly. Politely let them know that you're concerned about the risk to your home schooling freedom. They may not understand the issue or have all the facts.
The plaintiffs are Gavino Perez, Michael Putnam, Weldon Lister and Charles Dunn, all of San Antonio, Texas.
***Please share this summary with other interested parties via print, email, or any other format. However, please do not change or delete wording, but reproduce this summary in its entirety.***
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