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HSLDA, ACLU Team Up to Protect Fourth Amendment Rights

by Jim Mason • January 14, 2020

Winning cases is fun. Way better than the alternative. But one thing I have learned as a lawyer who works for a movement—not just for individual clients—is that good cases can quickly go bad because the case pipeline is never-ending.

Before Thanksgiving last year, wearing my hat as president of Parental Rights Foundation, I was on a semi-regular conference call with an ideologically diverse group of lawyers and activists who all agree that child-protective investigations and the juvenile court systems need reform.

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One of the regular participants is a Philadelphia nonprofit lawyer who is dedicated to helping low-income families stay together when they are caught up in the child-welfare system.

“The Pennsylvania Supreme Court has taken a case,” she said, “that could deny the Fourth Amendment rights of families during a Child Protective Services (CPS) investigation.”

Landmark Case

In Pennsylvania, like in many other states’ court systems, the state supreme court is not required to hear every appeal. It only takes a case if it wants to, often because it either disagrees with the lower court or wishes to establish a clear statewide precedent.

“Years ago,” I said during the conference call, “I had a case in the Pennsylvania Superior Court [which is the intermediate appellate court in Pennsylvania] on behalf of a homeschooling family who didn’t want to allow a home search. The superior court said the Fourth Amendment clearly applies to CPS home searches and reversed the lower court.”

That case was one of the most important ones I had ever worked on both because the issue had never been decided by an appellate court in Pennsylvania before and because it established a statewide precedent that applied to the whole Commonwealth of Pennsylvania.

“It was called In re Petition to Compel Cooperation with Child Abuse Investigation,” I said, “from 2005.”

“You did that case?” she said. “I use that case all the time [when helping her clients].”

As did the superior court in the new case, relying heavily on the 2005 precedent in favor of my homeschooling family to uphold the Fourth Amendment rights of the dad—a lawyer, but not a homeschooler—in the new case.

Joining Forces

She was concerned that the new case could be a vehicle for the Supreme Court to undermine or reverse the solid constitutional law in In re Petition to Compel. She put me in touch with the Pennsylvania American Civil Liberties Union (ACLU), who were planning to write a friend-of-the-court brief in support of the reasoning of In re Petition to Compel.

The deadline was already nearly upon us and the ACLU lawyer graciously allowed Home School Legal Defense Association to join her brief. Which is how, boys and girls, HSLDA and the ACLU came to submit a joint brief to the Supreme Court of Pennsylvania.

Personally, I love strange-bedfellows cases. When a court learns that an outfit like HSLDA and the ACLU agree about something, they sit up and take notice.

Why We Care

Here is how we described in the brief why HSLDA, and homeschoolers generally, care about Fourth Amendment protections during CPS investigations:

In the early days of the modern homeschooling movement, we discovered that child-welfare investigators routinely avoid interacting with parents at the beginning of an investigation by going to the child’s school or pre-school, as was done in this case. But because homeschooled children are at home when they are at school, child-welfare investigators could not routinely avoid parents. This led to many distressing encounters at the home’s front door, often simply because the family homeschooled at a time when it was not as accepted as it is today.

In one of our early cases, Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), the Ninth Circuit held that the nonconsensual entry into the home and subsequent strip search of the children violated the constitutional rights of that homeschooling family. “The government’s interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.” Id. at 820.

From its founding in 1983, HSLDA has assisted thousands of families in protecting these interests during child-welfare investigations, often commenced in response to anonymous or malicious hotline tips that later prove to be unfounded. HSLDA represented the family in In re Petition to Compel Cooperation with Child Abuse Investigation, 875 A.2d 365 (Pa. Super. Ct. 2005), which established that the Fourth Amendment and Article I, section 8 apply in full force to child-abuse investigations in Pennsylvania.

Like weeds, these cases just keep popping up. Consider the case of homeschooling mom Holly Curry in 2017, where a CPS investigator and police officer bullied their way into her home and stripped-searched her six kids. We sued on Holly’s behalf; the investigator has moved to dismiss the case, claiming she could not have known her actions violated Holly’s constitutional rights. We are waiting for the federal district court to rule.

With the support of our members, donors, allies, friends—and sometimes the ACLU—HSLDA tends the garden of freedom.

Because good cases can go bad.

Jim Mason

Vice President of Litigation and Development

Jim is an attorney and litigator who has helped HSLDA win a number of landmark cases establishing and protecting homeschool freedom. Read more.

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