The Home School Court Report
Vol. XXVII
No. 4
Cover
July/August
2011

In This Issue

SPECIALFEATURES
REGULARCOLUMNS
ANDTHEREST

Cover Story Next Page
By Lee Ann Bisulca
- disclaimer -
California Curfew Victory!

Midway through a Friday morning on June 5, 2009, two homeschooled teenagers exited a Los Angeles city bus on the edge of the Pierce College campus. Kiethan (17) and Miranda (14) Smith were on their way to register Miranda for dual-enrollment classes at their local community college. A few steps away from the campus entrance, the siblings were stopped by two police officers.

The officers asked why Kiethan and Miranda weren’t in school that morning, and Kiethan explained their errand. “They didn’t seem like they believed us,” he remembers. The students tried to show the officers their homeschool IDs and explain that they had the day off from school, but still the officers wouldn’t listen. They accused Kiethan and Miranda of violating Los Angeles’s daytime curfew ordinance and ordered them into the patrol car.

Frightened, Kiethan and Miranda asked where they were going and what was going to happen next. All the officers would say as they wrote up the teens’ citations was, “You’ll find out when you get there.”

Meanwhile, at the Smiths’ home, Yvonne Smith became concerned when she didn’t hear from her son and daughter around the time they should have been arriving on campus. She called Miranda’s cell phone and found out that her children were sitting in a police car.

Kiethan Smith
Kiethan Smith

Miranda Smith
Miranda Smith
...

A FEW STEPS AWAY
FROM THE CAMPUS
ENTRANCE, THE SIBLINGS
WERE STOPPED BY TWO
POLICE OFFICERS.
...

“I asked Miranda if I could talk to the officer,” says Yvonne. “She tried to hand him the phone and he wouldn’t take it. I was freaking out, thinking, these guys are posing as police officers, and I have no idea what’s going on. I’m getting all upset, Miranda’s getting all upset.”

Finally, one of the officers took the phone. Despite Yvonne’s attempts to explain that her homeschooled children were off school that day, all the officer would tell her was to call the phone number for the truancy center.

When Kiethan and Miranda arrived at the truancy center—a local community center that had been temporarily set up for processing a large number of students—their cell phones and wallets were confiscated. “Then we were sat down in front of somebody who started asking us questions like why we weren’t in school and why my mom hadn’t taken my sister to the college instead of me,” says Kiethan. “They had us sit down on benches apart from each other, and they wouldn’t let us talk to each other; they just made us sit there and wait.”

They waited almost three hours, while Yvonne scrambled to find transportation to meet her children at the detention center. Her husband, Michael, a sales representative, had taken the family car to work that day. Finally, Yvonne found a family friend to drive her and her youngest son, Trystan, to the community center.

“My daughter was sitting on one of the benches bawling her eyes out with this mound of paper towels next to her,” says Yvonne. “Kiethan was two or three benches away on the other side. I wasn’t allowed to get to them until I had checked in.”

As Yvonne moved through the checkpoints of the processing center with Kiethan and Miranda, she was struck by the apparently cavalier attitude of the various officials. “One lady there kept saying, ‘Oh, it was just a mistake; don’t worry about it.’ ” This mistake, however, had resulted in the Smith children’s arrest. One parent would have to appear with the teens in traffic court, where they each faced a $300 fine if convicted of violating the curfew.

What’s Wrong with Daytime Curfews?

A typical daytime curfew ordinance prohibits any person under the age of 18 from being in public during the hours of 8:30 a.m. to between 1:30 p.m. and 3:00 p.m., when school is in session. Most ordinances have provisions that allow juveniles some legal excuses to be in public, such as permission from school or parents, an emergency, or when accompanied by a parent. Some even contain specific homeschool exemptions.

Although only a child without a legal excuse to be outside can be cited and fined for breaking the curfew, even a person who does have a legal excuse to be outside is still not protected from being questioned, detained, or even held in custody until his or her innocence is proven.

Daytime curfews assume a person is guilty until proven innocent: A daytime curfew reverses the long-held American presumption of “innocent until proven guilty.” Police can stop juveniles even when there is no evidence that they have committed or intend to commit a crime, subjecting them to interrogation and suspicion until they prove their innocence.

Daytime curfews preempt existing truancy laws: One of the ostensible purposes of daytime curfews is to curb truancy. However, states already have truancy laws on their books. If a city attempts to replace statewide laws with its own law, it violates the doctrine of preemption (the doctrine that state laws always take precedence over local laws).

Daytime curfews are overbroad: Curfew laws prohibit the constitutional right to move about freely. Any restriction of a fundamental right must be supported by a compelling governmental interest and must be as narrow as possible so that it impinges on citizens’ rights no more than absolutely necessary. Daytime curfews do not meet this requirement. There are less restrictive methods of dealing with truancy and crime.

Daytime curfews are too vague: If a person of ordinary intelligence cannot understand what a law permits and prohibits, the law is considered vague and, therefore, unconstitutional. Many terms in daytime curfews are vague. Loitering, idling, and even being in can be interpreted at an officer’s or court’s discretion, giving juveniles no clear idea of what they can and cannot do in public during the curfew hours. Because the ordinances are vague, they can be declared void.

Daytime Curfews and Truancy Sweeps

“Home School Legal Defense Association has long opposed daytime curfews,” says HSLDA Chairman Michael Farris. “Although they’re often proposed in an attempt to combat truancy and juvenile crime, these ordinances share one thing in common: they cast a broad, indiscriminate net to catch a few potential troublemakers. In the process, they snare a lot of innocent young people and their families.”

The Los Angeles ordinance that Kiethan and Miranda ran afoul of allows police to stop and question any young person “subject to compulsory attendance” who is in a public place during regular school hours. Properly understood, “subject to compulsory attendance” refers only to public school students. Under the L.A. ordinance, any child who is cited receives an automatic mandatory court appearance with a parent. If convicted after a trial, they have to pay a $300 fine.

At the time of Kiethan and Miranda’s arrest, the L.A. curfew did not make things easy on homeschoolers. The ordinance did not provide for any recognized procedure by which officers could determine whether a child was actually subject to compulsory attendance. (In California, private school students are exempt from compulsory attendance, and homeschools are considered private schools.) In a “shoot first, ask questions later” approach, the Los Angeles Police Department (LAPD) would simply hand out citations and allow a judge to determine later whether the children were indeed truant.

Most Southern California municipalities have a daytime curfew ordinance, and not all recognize that homeschoolers are exempt. Up until the Smith children’s arrest, HSLDA had defended a handful of cited homeschoolers each school year. “In every case we’d handled in the past, the children received citations but were never detained beyond that,” says HSLDA Senior Counsel and Litigation Director Jim Mason. “The typical process that each case followed was that when the student entered a not-guilty plea in juvenile traffic court, HSLDA made a motion to dismiss and the case ended there.”


Yvonne and Michael Smith

...
“HOPEFULLY THIS
WON’T HAPPEN
ANYMORE.”
...

What made this case different was that the Smith children were actually arrested, as part of a “truancy sweep”—a concentrated effort by the LAPD on a specific day to round up truants. Patrolling officers would comb particular localities for suspects, and rather than returning the young people to their homes or schools, would detain them all in temporary processing centers. “LAPD officers were instructed to pick up and transport every child they cited on sweep days,” says Mason.

In fact, the sweeps were having an effect quite different than their intended purpose of decreasing truancy. “Police would basically set up a cordon around a school or several schools,” explains HSLDA Litigation Attorney Darren Jones. “Whoever wasn’t in school when the school bell rang got cited. Kids who arrived at the cordon a little late for school would turn around and go home, preferring to skip school rather than pay $300 in a fine and court costs. Some kids were even being ticketed on school grounds or in the school hallway, on their way to their first class.”

Smith V. City of Los Angeles

Michael and Yvonne Smith were longtime HSLDA members who had been homeschooling their three children since Kiethan reached school age. Immediately after the curfew citations, the Smiths notified HSLDA of what had happened. As with our other curfew cases, HSLDA was able to quickly wrap up City of Los Angeles v. Smith. On July 21, 2009, HSLDA Local Counsel Rex Lowe appeared on behalf of the Smiths at Kiethan and Miranda’s initial hearing in juvenile traffic court. There he filed a motion prepared by HSLDA to dismiss the citations, which the judge granted.

The immediate matter of the fines had been dealt with, but what about the larger picture? Two homeschooled high schoolers had been arrested for no good reason—and if the LAPD’s enforcement of the curfew did not change, there was no guarantee that this would not happen again. HSLDA asked the Smiths if they would be willing to file a civil lawsuit against the City of Los Angeles.

“My husband and I spoke about it, and we didn’t want to subject Kiethan and Miranda to more stress,” says Yvonne. “But we also didn’t want other homeschooling children to have to go through that. We prayed about it and decided that we would have to go through a little bit of discomfort, but if it would help other families, that was the way we were going to go.”

Kiethan agrees: “I felt that it was a good decision, just because I didn’t want any other homeschoolers having to go through the same thing that we went through.”

So HSLDA filed suit, and City of Los Angeles v. Smith became Smith v. City of Los Angeles.

Why a Lawsuit? Why Now?

“HSLDA had two objectives in suing L.A. City,” says HSLDA President Mike Smith. “By requesting damages for the Smith family, we were sending a message that the police department could not continue to enforce the curfew against homeschoolers, who were not subject to it. We also requested a declaratory judgment from the state court hearing the case—a judicial ruling that the curfew did not apply to private school students and, by extension, homeschoolers.”

The Smiths’ case was strong. The day on which Kiethan and Miranda were arrested was a Friday near the very end of the public school semester—a tacit “skip day”—and many L.A. private schools had already let out for the summer. Kiethan and Miranda were off school that day, and had their parents’ permission to be away from home. They were stopped by the police just a few steps from leaving the public sidewalk for the community college property. And the arresting officers had refused to listen to Yvonne’s, Kiethan’s, and Miranda’s repeated attempts to prove that there was no curfew violation.

The Smith Children
From left: Trystan, Miranda and Kiethan Smith.

In addition, HSLDA had a recent court decision on our side. Our position in California had always been that homeschooling is legal under the state’s private school statute. Based on this argument, we had been successfully defending the legality of homeschooling in California for decades. However, California law does not explicitly say that homeschooling is legal.

In 2008, a California appeals court ruled in the case In re Rachel L. that homeschooling was illegal. After HSLDA became involved in this case, we were able to get the opinion reversed. In an extraordinary victory, the court of appeal reconsidered its previous decision, ruling instead that homeschooling is a “species” of private school and therefore absolutely legal. (Read more about this pivotal case in the November/December 2008 Court Report).

This judicial ruling gave us the legal ballast we needed to advance a lawsuit with a strong likelihood of success. No matter how LAPD may have misunderstood the curfew in the past, HSLDA could now clearly demonstrate that homeschool students were exempt from compulsory attendance at public school and therefore not subject to the curfew.

Before suing in California state court, a plaintiff must file a notice of claims with the offending agency, giving it the opportunity to settle the claim without a lawsuit. HSLDA filed its notice with Los Angeles in November 2009, and six months later the city rejected the claim. We then filed a lawsuit and began the court-ordered process of mediation.

“In that process, we got word that the city was looking into changing its curfew policy,” says Darren Jones. “Jim Mason, Mike Smith, and I got together to brainstorm what we would want in a revised policy. Aside from the best-case scenario of getting the curfew tossed entirely, how could we make the curfew homeschool friendly?” The three HSLDA attorneys came up with a list of ways homeschoolers could prove to a police officer that rather than violating the curfew, they actually were exempt from compulsory attendance.

A Surprise Phone Call

Then, in April 2011, Darren Jones received an unexpected phone call—from Manuel Criollo, lead organizer of a community activist group in L.A. called the Community Rights Campaign. “This was out of the blue,” reports Jones. The Los Angeles City Council Public Safety Committee was hosting a public hearing on the impact of the daytime curfew ordinance, and Criollo asked Jones if HSLDA would testify.

It turned out that the curfew had raised the ire of more than just homeschoolers. Groups such as the Community Rights Campaign and the American Civil Liberties Union of Southern California had noted that a disproportionate number of black and Hispanic students were being cited, and that a disproportionate number of citations were being given out in poorer sections of the city. Not only were students on their way to school being cited for truancy, but appearing at their traffic court hearings sometimes caused them to miss an entire day or more of school, and their parents had to miss work to appear with them. Members of the city council had also become concerned and had asked LAPD to review enforcement of the curfew.

“Our lawsuit is what got homeschoolers noticed,” Jones explains. In anticipation of the April 18 hearing, HSLDA sent an email alert to our members in Southern California, asking them to attend and give testimony. Then Jones flew out to California.

Numerous community representatives, students, and families attended the hearing at city hall. In addition to testimonies about the curfew’s impact on public school students, Jones spoke about how homeschoolers were being affected. “I was delighted to see how many homeschoolers showed up on short notice,” he adds. “A number of homeschoolers gave testimony about their kids being stopped.”

LAPD was also at the hearing, and presented a completely revised enforcement policy. “It gave us everything we wanted,” says Jones. The policy explicitly stated that homeschoolers are exempt from the curfew. Additionally, it provided that if an officer stops a homeschool student under suspicion of violating the curfew, the student can present written proof of enrollment in either a private homeschool or a private school satellite program. The officer can call the parent, satellite program, or California Department of Education in order to confirm that the student is homeschooled. According to the policy, if the parent verbally confirms that the student is homeschooled and exempt from the curfew, the officer does not need any further proof.

Additionally, LAPD drastically changed its approach to general enforcement of the curfew and to truancy sweeps in particular. “Under the new policy, police are to look at the spirit of the curfew, not just think that a tardy student equals a $300 ticket,” Jones explains. “Don’t ticket kids on the way to school!” Instead, police are to enforce the curfew in the spirit in which it was written—to steer kids away from truancy and crime and towards productive education.

At about the same time that the new curfew policy was announced, LAPD agreed to settle the lawsuit with the Smith family. And because the policy change had obviated the need for a judicial ruling on the matter, HSLDA and the Smiths settled the lawsuit out of court.

Standing up for Freedom

“It’s rare you can claim 100% success in a court case!” says Jones. In Smith v. Los Angeles, several factors came together at just the right time. A major factor, of course, was that other civil rights groups in Los Angeles were also speaking out against the curfew’s enforcement. Groups representing a variety of interests were able to work together to achieve an important goal.

A second factor was that over the past three decades, HSLDA has been gradually building up a consistent body of case law in California recognizing that homeschools are a type of private school and that homeschool students are therefore exempt from compulsory attendance laws. As such, it was only a step from there for LAPD to tailor its revised policy to acknowledge that the curfew ordinance did not apply to homeschoolers.

Finally, a family that had been quietly homeschooling for years was willing to step forward and prosecute a case in the hopes that the entire homeschool community would benefit.

“I just keep thinking, if another parent went through listening to what I heard on the phone and saw their child experience what I saw my daughter go through, I would feel horrible for them,” says Yvonne Smith. “I know there are worse things that happen in the world, but hopefully this won’t happen anymore.”

Thanks to the Smiths, it probably won’t.