January 27, 2012

“Let Me in or I’ll Huff and I’ll Puff and … I’ll Take Your Kids!”

James Mason
HSLDA Senior Counsel

Stand With Us!

What can you do?

• First and foremost, we ask that you pray. The petition we are filing is only the first step. In this “petition for certiorari,” we are asking the Supreme Court to agree to take our case. In a typical year, the Supreme Court gets over 8,000 of these applications and accepts fewer than 100. Please pray that at least four members of the Court will agree that it is high time to bring the Constitution to bear on social-worker investigations.

• Second, consider making a tax-deductible financial gift. The assault on parental rights comes to us on many fronts, and the increasing number of such high-level cases stretches HSLDA’s resources to the limit. This is why we have set up the Homeschool Freedom Fund, to enable us to fight important cases for the broader principle of parental rights.

Fighting a case of this magnitude is an expensive proposition. If you would like to stand with us in this critical battle, I would ask you to send the very best gift you can to the Home School Foundation’s Homeschool Freedom Fund. All gifts to HSF are tax-deductible.

No, these are not the words of the Big Bad Wolf. They are, however, the words of Arizona social workers who were investigating a two-month-old anonymous report that John and Tiffany Loudermilk’s home contained safety hazards (except for the huff-and-puff part—I made that up).

For 40 terrifying minutes, this homeschooling couple had asserted their Fourth Amendment right to be free from an unreasonable search of their home. The two investigative social workers were eventually joined by six uniformed sheriff’s deputies who were called because the social workers considered the Loudermilks to be “uncooperative.” The Loudermilks called Home School Legal Defense Association, and attorney Thomas J. Schmidt spoke with the social workers, the deputies, and an assistant attorney general, in an attempt to defuse the situation.

Then the social workers played their ace-in-the-hole. “If you don’t let us in immediately,” they said, “we will take your children into state custody.”

As any parent can understand, the Loudermilks allowed the assembled officials into their home to verify that the anonymous report was false rather than have their children suffer the needless trauma of being forcibly removed.

Petition for Certiorari: Asking the Supreme Court to Step in

In the two months between receiving the anonymous report and arriving unannounced on the Loudermilks’ front porch, social services clearly never believed that the situation needed emergency intervention. No one ever asked a judge for a court order. But when it came time for the social workers to complete their investigation, the family’s Fourth Amendment rights just got in the way.

HSLDA sued the social workers and the deputies in federal court in 2006. After much legal maneuvering by the social workers and the deputies, the trial-court judge said in 2010 that the case could go to trial.

But the deputies appealed that decision to the United States Court of Appeals for the Ninth Circuit in San Francisco. In October 2011, the Ninth Circuit reversed and said that “a reasonable police officer would not have known that consent [to enter the home] was involuntary” under these circumstances.

Now, HSLDA Chairman Mike Farris, along with his litigation team, is asking the Supreme Court of the United States to review the inexplicable decision of the Ninth Circuit. From our brief:

Every parent in America knows the correct answer to the ultimate question in this case. When social workers and police officers tell parents “if you don’t let us in your house to search, we are going to take your children” any “consent” to search has been coerced. The Ninth Circuit, however, ruled that this ultimatum was not improperly coercive because the threat to remove the children was “not baseless.”

Accordingly, the legal issue that must be resolved is whether the social workers and police officers had a constitutionally legitimate basis for threatening to remove the Loudermilk children.

Read the rest of our petition to the U.S. Supreme Court here.

Storming the Castle

HSLDA was established to defend parental rights in the context of homeschooling. How did we become involved in social-worker investigations?

In the early days of the modern homeschooling movement, many parents closed the curtains and made sure that their children were not seen outside during school hours because homeschooling was thought to be illegal in many states and by many school officials. In those days, the knock at the door might well have been a social worker investigating why the children were not in school. HSLDA quickly learned that protecting homeschooling also meant protecting the home.

Consistent with our experience, Duke University Professor of Law Doriane Coleman says that caseworkers routinely “storm the castle, opening closed bedroom doors to find, talk to, examine, and remove the children; opening and looking through refrigerators and cupboards to see if the children have sufficient food to eat; opening and searching closets and drawers to check if the children have enough clothing and that no inappropriate disciplinary methods are being used in the family.”

According to her, these home “visits,” which “epitomize deep intrusion[s] in both symbolic and actual respects,” can shatter the innocence of even the youngest of children, exposing them to a broad range of emotional responses, including “trauma, anxiety, fear, shame, guilt, stigmatization, powerlessness, self-doubt, depression, and isolation.”1

Since HSLDA began defending homeschooling in 1983, we have helped thousands of innocent families who were the subject of these kinds of investigations. Most of the time, we helped resolve these investigations without needing to go to court. Sometimes, however, those situations made it into court. In addition to successfully defending the families, we were able to use those opportunities to establish good law in state or federal courts. But the scope and magnitude of the problem just keeps growing.

In 2010, the most recent year for which data is available, state investigations intruded into the private lives of more than 3 million children, only to conclude that the incursions were unnecessary in more than 73% of cases.2 Without clear constitutional guidelines, millions of children each year confront “a disturbingly overbroad scheme that wrongfully captures hundreds of thousands of children within its auspices each year.”3

“The Supreme Court of the United States has never taken a case involving the Fourth Amendment rights of families who are in the middle of a social services investigation at their home,” says Michael Farris, lead counsel in the case. “We think it is high time it does.”

Our nation was founded upon the traditions of Western civilization. This civilization was founded on the principles of the Word of God. God gives children to parents—not to the state. And one of our more cherished freedoms is the knowledge that we can be secure in our own homes. In cases like this one, our legal system must remain steadfast in following the principles our founders laid out for the good of "“We the people,” including our children.

Please pray for favor with the Supreme Court and help as best you can. Thank you.

Notes

1. Doriane L. Coleman, Storming the Castle to Save the Children: The Ironic Costs of a Child-welfare Exception to the Fourth Amendment, 47 WM. & MARY L. REV. 413, 444 (2005).

2. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ADMINISTRATION FOR CHILDREN, YOUTH AND FAMILIES, “Child Maltreatment 2010” 20 (2011), available at http://www.acf.hhs.gov/programs/cb/pubs/cm10/cm10.pdf#page=17, visited January 13, 2011.

3. Storming the Castle, 47 WM. & MARY L. REV. at 444.