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March 14, 2001

Home Schoolers Pleased with NC Court of Appeals Arguments

For immediate release
March 14, 2001
Contact: Rich Jefferson
(540) 338-8663 or

RALEIGH Jim Stumbo felt good coming out of the North Carolina Court of Appeals on Tuesday, March 13. The going seemed rough at first as the judges grilled his attorney, HSLDA General Counsel Mike Farris, on whether a court-ordered interview with a child was a "seizure" for constitutional purposes. But the shoe was on the other foot soon enough when Attorney John Church stood up to represent the Cleveland County Department of Social Services.

The DSS attorney had staked his entire case on the hope that the judges would ignore the reasons that the Stumbos initially refused to comply with the social worker's demands. That hope was shattered less than one minute into his presentation of the case. When Judge Edward Greene began to grill the DSS lawyer about the Fourth Amendment rights of families accused of child neglect, Church found himself without a defense. In the end, he said, "I stand on my brief," and sat down.

The Stumbos wound up in court because they refused to allow a social worker to enter their home in the fall of 1999. An anonymous source had reported seeing a naked child in the Stumbo's driveway, and a child protective services worker knocked at their front door two hours later. Mrs. Stumbo tried to explain that her two-year-old daughter had simply chased the new kitten out the door while she was getting dressed that morning, but this made no difference to the Department of Social Services. According to DSS policy, every social worker had to enter the home and interview every child in that home every time someone alleged abuse or neglect. When the Stumbos insisted that the United States Constitution protected the privacy of their home, the county filed suit.

Cleveland County District Court Judge Anna F. Foster immediately ruled that social workers are not subject to the Constitution when they conduct child neglect investigations, and thus she concluded that the Stumbos had no Fourth Amendment right to say "No" to a social worker. Judge Foster soon discovered that she had created a problem for herself. Social workers might not be subject to the Constitution, but even Judge Foster recognized that judges are bound to obey it. The Fourth Amendment prohibits any judge from issuing any warrant without "probable cause," and she realized that the order she was about to issue would violate that requirement.

It took Judge Foster 120 days to come up with an order that she thought would make the family submit to the social worker's demands without violating the Fourth Amendment. Her order simply told Mr. and Mrs. Stumbo to obey the law (North Carolina General Statutes 7B-301 and 7B-303 (a) (c)). When the Stumbos filed an emergency appeal to block that order, the North Carolina Court of Appeals issued a "writ of prohibition" that put the order on hold until the appeal could be heard.

The two opposing sides presented the Court of Appeals with opposite theories of what needs to be decided. DSS argues that the only issue the court needs to consider is whether it is unconstitutional for a judge to order parents to obey the law. HSLDA argues that the only issue the court needs to consider is whether it is legal for a family to assert their Fourth Amendment rights to the privacy of their own home.

Appeals courts often take months to issue a written opinion in a case like this, but HSLDA is constantly monitoring similar cases. A New Jersey court ruled in favor of the constitutional rights of the Koehlers, an HSLDA member family, just last month. For the latest information on this case be sure to visit our website regularly.

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