State Supreme Court Reverses Itself — Will Hear Appeal in Jones Case

August, 2004 -- Homeschoolers interested in playing school sports had a bit of a rollercoaster ride as spring turned to summer, courtesy of the West Virginia State Supreme Court.

At the end of May, the State Supreme Court unanimously rejected an appeal by the WV Secondary School Activities Commission (SSAC) and the State Board of Education to overturn Kanawha Circuit Court Judge Duke Bloom's decision in the Jones case. Judge Bloom ruled in September 2003 that current regulations prohibiting homeschooler participation in school sports violated State law as well as the state’s Constitution.

The SSAC and the State Board then requested that the Supreme Court reconsider its refusal to hear their appeal. The Court did so, and in late June three of the five State Supreme Court judges changed their minds and agreed to review Judge Bloom’s ruling.

The Associated Press reported that SSAC legal counsel William Wooton said the State Legislature “has not endorsed legislation to allow homeschooled students to participate in public school sports.” According to the AP report, Mr. Wooton believes that the case is about “who gets to set statewide policy.”

Some school officials have maintained that Judge Bloom’s decision applies only to Aaron Jones. “That is contrary to the clear reading of the decision,” said the Jones’s attorney, Randy Minor. “Judge Bloom ordered the defendants in the case, including the SSAC and State Board of Education, to revise their policies to permit reasonable participation by homeschool children. Because the State Board of Education has ultimate authority over interscholastic athletics throughout West Virginia, Judge Bloom's decision applies on a statewide basis to any homeschool student's wish to join an interscholastic team.” He adds, “In their motions for reconsideration, both the SSAC and the State acknowledge that Judge Bloom's decision enjoins them with respect to all homeschool children in West Virginia."

In a letter responding to various newspaper editorials and columns that were critical of the State Supreme Court’s initial refusal to hear the SSAC’s appeal, Mr. Minor wrote: “It should be noted at the outset that homeschooled children in West Virginia are still part of the public education system.” [Read the entire letter at http://wvhea.org/news.htm.]

The Home School Legal Defense Association (HSLDA) disagreed with this view of West Virginia homeschoolers in an article on its website (http://www.hslda.org/hs/state/wv/200406220.asp). “Homeschooled children are privately educated and have only minor contact with the public school system,” the report maintained.

Commenting on this legal disagreement, WVHEA’s Legislative Committee Chair Mary Ellen Sullivan detailed some of the state’s requirements for homeschoolers, which include submitting a plan of instruction and annual evaluations to local public school authorities. “And the part of the [W. Va.] code that covers homeschooling is the section on compulsory education, not the section on private schools,” she notes. ”Although homeschoolers would certainly disagree on whether they are ’part of the public education system,’ this is a legal interpretation, not a philosophical one.”

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“… many authors raised the issue that homeschooling parents have made a choice and now must live with the consequences — one of which is no access whatsoever to interscholastic athletics for their children. The thinking there appears to be that any educational choice involves trade-offs and parents must accept the bad along with the good of their choices. I believe such thinking is flawed unless the adverse consequence is unavoidable, particularly when one is talking about a child's education.   “I feel we sometimes lose sight of why we include athletics in our educational programs at the middle and high school levels. The priority should not be winning or glorification of an individual athlete or school. There is enough of that already at the college and professional levels. Interscholastic athletics ought to be about kids having fun doing something they love, or learning the valuable lessons that sports and being part of a team teaches us.”             — Attorney Randy Minor, Dominion Post, June 13, 2004