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From FB: Judge scorched by appeals court for denying parents the right to home school their children.

Studies show properly home schooled children fare better on test scores and in graduation rates than public school kids. This judge is right on.

I recently heard of an Illinois case where a judge told a mom not to keep her kid out of Kindercare or she would sanction mom because “kids need to go to school.”  Kindercare?  Really?  It’s daycare, not school, and learning at home with mom (who has a PhD) certainly has to be more enriching than Kindercare.  Some Illinois judges are really idiots and just need to be removed from the bench.  This is one.  Illinois parents have the right to home school, esp. by parents who have advanced degrees, come on now.  And the kid is not even in Kindergarten and her school is only daycare with no educational format by a certified teacher.

Parents have rights.

This mom was beyond words with this judge, so I am not surprised to find this article recently.

Judge Stephen Dillard. (Photo: John Disney/ALM)Judge Stephen Dillard, Georgia Court of Appeals. (Photo: John Disney/ALM)

Georgia Court of Appeals Chief Judge Stephen Dillard, known for his friendly banter about the Oxford comma and college football with his 14,000 Twitter followers, has taken a trial judge to task for nothing less than what he called usurping the fundamental right of parents to raise their children.

Dillard wrote a 12-page special concurrence for a 10-page decision released Thursday reversing a trial judge who had ordered a mother to stop home schooling her youngest child and commanded the mom to enroll the child in a Montessori school instead.

“The liberty interest of parents to direct the upbringing, education, and care of their children is the most ancient of the fundamental rights we hold as a people,” Dillard said, adding that the concept is “deeply embedded in our law.”

Dillard said this right “preexists government, and may not be interfered with by the State except in the most compelling circumstances.” He said no such compelling circumstances were presented in this case, in which the ruling below was reversed by a panel of three that included Judges Amanda Mercier and Sara Doyle, as well as Dillard. Mercier wrote for the majority.

“I concur fully in the majority’s thoughtful and well-reasoned opinion. As a result, it may be cited as binding precedent,” Dillard said in the first of his 24 footnotes, two of which took up nearly an entire page.

“I write separately to express my serious concerns with the court’s decision to summarily substitute its judgment regarding the child’s education for the mother’s without identifying evidence of the compelling circumstances necessary to interfere with her constitutional parental rights,” Dillard said. “In doing so, the trial court failed to give sufficient consideration to the federal and Georgia constitutions, both of which afford significant protection of a parent’s right to the care, custody, and control of his or her child—which undoubtedly includes the right to make educational decisions.”

Dillard went so far as to invoke the fictional “Big Brother” in George Orwell’s totalitarian tale “1984.”

“When state actors engage in this sort of Orwellian policymaking disguised as judging, is it any wonder that so many citizens feel as if the government does not speak for them or respect the private realm of family life,” Dillard asked rhetorically. “In sum, I take this opportunity, yet again, to remind our trial courts that, in making any decision or taking any action that interferes with a parent-child relationship, our state statutes are subordinate to and must be construed in light of the fundamental rights recognized by the federal and Georgia constitutions—which both include a parent’s fundamental right to homeschool a child.”

The appeal that sparked the chief’s ire is a long-running divorce and custody battle in Bartow County Superior Court before Judge Suzanne Smith. According to the appeals court, Brian and Stefanie Borgers were divorced in 2013. The mother was awarded custody of their three minor children. In the following years, the judge held several more hearings over child support and visitation issues, during which the father was critical of the mother home-schooling the children. After one such hearing, in June 2017, the judge expressed agreement with the father.

“The Court finds it to be a shame that the Defendant Mother has not taught her children to be independent,” the judge said in an order. She added her opinion was “based on the expert witness testifying that the children have issues in small classes as they have been previously home schooled by the Mother.”

The judge held another status hearing in August 2017, after which she issued the home-school order. Mercier’s majority opinion quoted the judge’s order citing the “court’s own beliefs as to the child’s best interest” and ordering the mother to “immediately enroll the child in school and ensure the child is not ‘home schooled.’ ”

The mother argued on appeal that because the final divorce decree made her the primary physical custodian and final decision-maker regarding the children, which included the authority to make decisions regarding the children’s education, the trial court’s order constitutes an “improper modification of custody in this contempt action,” Mercier said. Mercier said that the case was not exactly like others in prior rulings, but concluded that “where a child goes to school is a parental decision.”

The mother was represented on appeal by Joel Thornton of the International Human Rights Group in Rome.

“It’s a case of first impression. This judge was extremely hostile to home schooling,” Thornton said Friday evening. “My client is thrilled to have her right to choose the educational opportunities of her children upheld.”

The father was represented at the trial court by Samir Patel of White & Choate in Cartersville. Patel said by email Friday that the father chose not to fight the appeal because “it would continue the difficulty.”

Patel said the case involved many hearings, but no transcript, and so the appellate record is not complete.

“For example, a psychologist testified that home-schooling the children in this case would be harmful to the children’s welfare,” Patel said. “Certainly I think the court understands a parent’s right to educate her children in the way she sees fit, but the court’s concern in this case was … adequate supervision and whether the children’s home schooling would even meet the very minimal requirements prescribed by state law.”

Though that concern was not fully documented in the record, it’s not at all clear that it would have changed the outcome of the appeal.

“Indeed, this ‘cherished and sacrosanct right is not a gift from the sovereign; it is our natural birthright. Fixed. Innate. Unalienable,’ ” Dillard concluded. “Thus, regardless of a court’s personal feelings or perception of a parent’s fitness to care for or retain custody of his or her child, careful consideration of these bedrock constitutional principles and safeguards must remain central to each case without exception. And when this fails to occur, we will not hesitate to remind our trial courts of the solemn obligation they have to safeguard the parental rights of all Georgians.”

The case is Borgers v. Borgers, No. A18A0910.


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