The Home School Court Report
VOLUME XIII, NUMBER 4
- disclaimer -
JULY / AUGUST 1997
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Cover Story
Curfew Battle in Monrovia

Special Features
Kennedy Settlement

Homeschooler Wins Spelling Bee

A Life Abandoned to Christ - The Story of Jeff Ethell

Regular Features
National Center Reports

Litigation Report

Across the States

Press Clippings

On the other hand: a contrario sensu

President’s Page

C O V E R   S T O R Y

A Crime to Be a Child . . . in a Public Place

On a warm, sunny October morning, 15-year-old Melinda Isenberger and a classmate were walking down the street on their way to a corner market. Suddenly they noticed an ordinary-looking white car following them. They began walking more quickly, but the two strangers in the car pursued and forced the girls to stop. A man and a woman got out of the car and approached the now terrified girls. They abruptly began questioning Melinda and her friend, "Why aren't you in school? Do you have permission to be out of school? What school do you go to? Where are you going?"

The girls presented their permission slip from school, but their interrogators warned them, "That's not enough. Next time, you need to have more identification." Finally, the strangers allowed the girls to continue on their errand.

Who were the strangers who accosted Melinda and her friend that afternoon? It turns out that they were plainclothes policemen in an unmarked patrol car. However, the officers never identified themselves, and the girls were left wondering if the couple were passersby who meant them harm or policemen whose sworn duty it is to protect them.

What gave local law enforcement officers the right to randomly stop and interrogate young people on the street? This October 1995 incident took place in Monrovia, California—the Golden State in the Land of the Free. Melinda and her classmate were stopped because one year earlier, in October 1994, this town of 39,000 enacted a daytime loitering ordinance, the nation's first daytime curfew for minors, to fight truancy and juvenile crime.

The ordinance makes it unlawful for any minor under age 18 to be in any public place between the hours of 8:30 a.m. and 1:30 p.m. on days when school is in session. (See text of ordinance) It is not enforced by truancy officers, but by Monrovia police. Officers may, and do, stop any minor or youthful looking person, not just loitering, but even simply walking to the store, library, or from school to home.

Melinda Isenberger and her classmate happen to attend a private school in Monrovia. On the morning that they were stopped by the unidentified plainclothes police officers, both girls were wearing their school's navy and white PE uniform with the school logo distinctively displayed. Both girls also carried permission slips from their school for the errand. According to the city's daytime curfew ordinance, exceptions are granted for minors accompanied by a parent, on an emergency errand, en route to or from a job or medical appointment, or holding a special permit from school. Melinda and her friend were innocent of any wrongdoing, yet they were still pursued like criminals by two strangers—police officers who did not even identify themselves as law enforcement.

Other innocent young people have found themselves victims of repeated stopping and questioning by police officers. Jess Harrahill, a 15-year-old homeschooled student, has been detained and interrogated by Monrovia police officers on at least 14 occasions as he walked home from supplementary classes at the local public school.

"It just doesn't feel like a free country," Jess told the Pasadena Star-News recently. "A lot of these [officers] don't know what it's like to be walking around during school hours and to be stopped by this guy with a gun, asking 'Where are you going? Why aren't you in school?'"

Jess' 13-year-old brother, Ben, has also been stopped a number of times while walking directly from school to his home.

Another private school student, Gabriel Chavez, age 15, took the PSAT during his school's fall break. At lunchtime, Gabriel and several other students walked to a fast food restaurant for lunch. Within a twenty-minute period, Gabriel was stopped and interrogated five times about possible curfew violation by five different Monrovia police officers.

Practical Effect of Daytime Curfews

Although Monrovia's daytime curfew was enacted to curb juvenile crime by reducing truancy, the practical effect reaches far beyond the intent of the law. Instead of targeting juvenile delinquents, the daytime curfew targets all children. (Or as a Californian might put it, the net cast to catch the tuna is snaring an awful lot of innocent dolphin.)

Laws to combat truancy are already on the books and target youngsters who have actually broken the law. California's education code defines truancy as a student missing class three times without an excuse or being more than 30 minutes late to class three times. But because those laws have not been enforced there is a perceived need for stricter control. Monrovia's daytime curfew regards a whole class of people for a specific time period as "guilty until proven innocent."

As a result, children with legitimate reasons to be in public are being harassed and even terrorized by policemen. Home and private schools are being forced to adopt the public school schedule in order to protect their children.

Standing Up for Freedom

Four families in Monrovia are fighting back. In a first-of-its-kind lawsuit filed on April 28, 1997, Home School Legal Defense Association has asserted, on behalf of the families, that the ordinance is unconstitutional and preempted by existing state truancy laws. In an effort to curb truancy and juvenile crime, the city of Monrovia has stripped all its young people of their fundamental freedom to move about and to be free from unreasonable search and seizure. To make it easier to snag a few truants, the city has subjected all children to frightening and sometimes traumatic restraints on their liberties. Michael Farris, president of HSLDA and co-counsel for the case with Andrew W. Zepeda of California, pointed out that "People who have to explain themselves to the police don't live in a free society."

The parents in this case all have children who attend private schools or are homeschooled. Their schedules are different from the public schools, and these parents are concerned not only with the unconstitutionality of the measure, but also with the danger to their children, now targets for criminals posing as police officers.

Proponents of the curfew claim that it has reduced truancy by 44%, but the actual statistics show only a 2% decline in total unexcused absences. And a number of other anti-truancy measures—including classroom courses in conflict management—were adopted at the same time as the loitering ordinance, so it is impossible to know which of these measures are responsible for the drop in truancy.

Whether or not Monrovia's daytime curfew is responsible for cutting down on daytime crime and truancy, its claims of success have attracted national attention. President Clinton praised Monrovia's daytime curfew during a July 1996 campaign stop, and Monrovia's ordinance has encouraged a number of other municipalities and counties to adopt similar measures.

It also inspired Governor Pete Wilson's office earlier this year to draft and submit the first statewide daytime curfew proposal to the state legislature-A.B. 1151. Prayers and quick action on the part of homeschoolers around the state put the bill on hold until 1998. (See complete story.)

The problem with daytime loitering/curfew ordinances is not so much how they are enforced, but the fact that they are unconstitutional. Daytime curfews result in police officers violating the fundamental rights of a minor to travel freely without fear of unreasonable search and seizure.

"Curfews are a tool of martial law and are designed to bring people under control who are living in a war zone," said Michael Farris, president of HSLDA. "We don't believe that the All-American city of Monrovia is a war zone."


What Does Monrovia's Daytime Loitering Ordinance Say?

"It is unlawful for any minor under the age of eighteen years, who is subject to compulsory education or to compulsory continuation education to loiter, idle, wander, or to be in or upon the public streets, highways, roads, alleys, parks, playgrounds, or other public grounds, public places, public buildings, places of amusement and eating places, vacant lots or any unsupervised place during the hours of 8:30 a.m. and 1:30 p.m. on days when school is in session.

"This section does not apply:

"A. When the minor is accompanied by his or her parent, guardian, or other adult person having the care or custody of the minor; or

"B. When the minor is on an emergency errand directed by his or her parent or guardian or other adult person having care or custody of the minor; or

"C. When the minor is going or coming directly from or to their place of gainful employment or to or from a medical appointment; or

"D. To students who have permission to leave school campus for lunch or school related activity and have in their possession a valid, school issued, off-campus permit."

—Monrovia Municipal Code, Section 9.28.030