39 Years Later: Small Battles Still Matter

Why does HSLDA have so many stories about fighting little battles over issues that seem obscure or unimportant? Perhaps because experience has taught us that small details and small stands taken can lay a foundation for big wins.

When HSLDA was founded in 1983, the legality of homeschooling (to say nothing of its acceptability) was ambiguous (or worse) in the vast majority of states. Only a small percentage of parents taught their kids at home, using curricula they stitched together or invented themselves.

Fast-forward one generation: in the early 2000s, the lawfulness of homeschooling was assumed everywhere (and its acceptability was growing, thanks in large part to homeschool advocates’ state legislative efforts and a generation of successful homeschool graduates).

Fast-forward another 20 years to 2020, and—for a few months, at least—almost every student suddenly found themselves in some form of learning at home.

Given this widespread acceptance, I am often asked, “so what do you do all day? After all, you work at the Home School Legal Defense Association, but homeschooling is legal now. Surely you must be bored?”

Actually, I’m not. Let me explain. There was a time when the challenges to homeschooling were obvious and overt, and that is sometimes still the case: sometimes that involves legal action, and sometimes legislation.

For example, in 2018, Hawaii introduced a bill that would have required school officials to seek an investigation by child protective services (CPS) whenever a parent filed a notice of intent to homeschool. Additionally, every adult in the home would have had to submit to a background check before their homeschool could be “approved.” 

However, the legislature broke perhaps the cardinal rule when dealing with homeschoolers: don’t spring bills on parents that try to take away their freedoms. Hundreds of families swarmed the capitol to provide hours of testimony opposing the measure, and it was defeated.

Many a legislature has learned that rule the hard way. As a result, the challenges homeschoolers face today tend to be more subtle, technical, and surreptitious. These challenges can be placed in two main categories: Snafus and security.

Challenge 1: Snafus That Put Law-Abiding Families in Danger

The first class of challenges are what I will call snafus. This is what happens when suspicion collides with confusion, and makes a spectacular mess. Here are a few examples.

Kirk and Kristen’s Story: When unlawful regulations turn law-abiding parents into law-breakers

In Virginia, homeschool law generally requires filing a notice of intent with the superintendent at the start of the year and evidence of their child’s progress at the end of the year. Being homeschool graduates turned homeschool parents, Kirk and Kristen turned in everything that Virginia’s law required. So, they were surprised when their district told them that they could not homeschool unless they also provided a birth certificate and proof of residency—neither of which is required by Virginia law.

Homeschool graduates Kirk (left) and Kristen (right) Sosebee now home educate their own kids in Virginia.

Where did this come from? The local school board had adopted a policy requiring the certificate and residency proof. When HSLDA pointed out that the policy had been adopted after Kristen and Kirk filed their papers, the district “excused” them from complying. But the school’s lawyer warned that they would have to provide the documents the following school year, or face “court intervention.”

Tanya’s Story: When officials fail to follow the law

In New York City, Tanya filed a notice of intent with the city’s Central Office of Home Schooling. For those of us who don’t live in the Empire State, here’s the basic process to homeschool in the city:

• The parent files a written notice.
• The Central Office has 10 business days to send them an Individualized Home Instruction Plan (IHIP).
• The parent returns the IHIP within 28 calendar days.
• The Central Office has 10 business days to accept the IHIP or request more information.

If that sounds complicated to you, it is.

Here’s what you need to know: Tanya filed a notice of intent; the office took longer than they should have to send her the IHIP; and when Tanya returned the IHIP, the office forgot to tell her local public school that she was homeschooling. Tanya had no idea anything was amiss until a CPS investigator arrived at her home months later . . . at 7 o’clock at night.

When the NYC Central Office of Home Schooling failed to comply with state law, her school district accused Tanya (pictured here) of educational neglect. HSLDA helped clear up the office’s snafu.

Dawn’s Story: When legally homeschooling becomes a crime

One more example. Like many other parents of children with special needs, Dawn turned to homeschooling as a last resort to protect her son, who suffers from cerebral palsy and a form of epilepsy. After repeated clashes with school officials over how to care for her son’s needs, and a failed attempt to enroll him in a charter facility for students with disabilities, she had no other option except to teach him at home. Although Missouri law does not require a formal notice, Dawn sent a letter to her son’s school explaining her decision to homeschool, and even received a confirmation letter back from the district. That was in November.

Three months later, Dawn received a letter out of the blue. It was a summons to court, on charges of child endangerment. Yes, you read that correctly: child endangerment. Why? The complaint did not explain how officials got from “homeschooling” to “endangerment,” but at Dawn’s first hearing, the judge made it clear that she doubted Dawn’s ability to teach her son, even though the Missouri legislature doesn’t limit the right to homeschool to parents with teaching credentials.

Dawn began homeschooling her son when the public school’s failure to adequately accommodate his cerebral palsy and epilepsy led to declining health and dwindling learning.

Three different families in three different states. But did you notice the similarities?

The common threads

All three stories involved officials who fundamentally did not understand their state’s homeschool law. The Virginia school board explicitly added requirements that didn’t exist. The complaint against Dawn implicitly suggested that she wasn’t qualified to teach her child. And the New York City officials failed to discharge an important legal obligation: notifying the right school district that a family was homeschooling.

These legal misunderstandings between officials and parents combined with unfounded suspicions: don’t school boards need birth certificates and proof of residency to ensure that “homeschooling families” aren’t really trafficking children? Can a mother really teach a child with severe disabilities without help?

Finally, none of the parents did anything wrong. Kirk, Kristen, and Tanya did exactly what the law required of them, while Dawn went beyond what the law told her to do. If anyone misstepped, it was the officials. Yet it was the families that were left holding the bag.

And what a bag. Summonses to court, CPS investigations, criminal charges. Suspicion collides with confusion, and bam: an absurd overreaction. All of a sudden, law-abiding citizens are facing fines and jail time . . . over paperwork. Snafu.

So how do you deal with messes like this?

Here are a few things we’ve learned along the way.

First, someone has to be willing to stand in the gap for victims of injustice. For homeschooling families facing issues like these, the team standing in the gap has been HSLDA and the broader homeschooling community. We hold each other up, and bear each other’s burdens.

Second, it’s easier to win legal disputes when the law is both clear and on your side. When Kirk and Kristen were threatened with “court intervention” if they did not provide a birth certificate and proof of residency, we knew immediately that threat was unlawful. How? Because Virginia’s homeschool law was crystal clear about what parents had to do to homeschool.

The legislature had written a statute requiring public school parents to provide a birth certificate and proof of residency. It did not impose that same requirement on homeschooling parents.

It took us a couple of rounds of litigation to convince the courts of that. But once the Supreme Court of Virginia got involved, they made it unanimously clear that local school boards lacked the power to amend state laws or impose new legal obligations on parents.

We won Tanya’s case for the same reason. After we got the CPS investigation closed, we sued New York City on Tanya’s behalf, and sought a declaration that the Homeschool Office was bound by the homeschool law in the same way that parents were. As it turned out, we didn’t need the courts: once the lawsuit was filed, the office’s own lawyers worked with us to develop a plan to prevent other families from being reported to CPS like Tanya was.

Third, vigilant collaboration is key. Virginia’s law was so clear because that statute had been pruned, improved, and updated over many years through the efforts of Virginia’s active homeschool community.

While HSLDA has played a part in those efforts, the lion’s share of the work—and credit—belongs to Virginia’s homeschool organizations and groups, who have spent decades cultivating relationships with legislators in Richmond and networks with local families. They’ve strived for years to make the state’s homeschool law as clear as possible, so families know exactly what they need to do. Without those efforts, the Supreme Court of Virginia may have ruled differently.

Finally, sometimes you need collaboration of a slightly different sort. Acquitting Dawn of the “child endangerment” charges in Missouri required reaching out to a subject matter expert. I knew how to explain to a judge that Dawn had done everything legally. And I might even have been able to convince the judge that she wasn’t endangering her child by deciding to homeschool. But I would need help convincing the judge that her child with special needs could not only learn, but thrive, with mom as his teacher.

For that, we turned to Dr. Steve Duvall. At the time, Steve was a professor of school psychology at Pittsburg State University in Kansas (he has since joined HSLDA as our director of research). He had developed research methods to evaluate how students—including students with special needs—learned in the public school setting compared to a home setting.

Steve spent an afternoon evaluating Dawn’s son, reviewing her materials, and watching her teach. He then prepared a report for us, and came out to Missouri to testify on Dawn’s behalf.

At the hearing, the judge was so impressed with Steve’s report, and his ability to clearly answer her questions, that she dismissed the case after only a few minutes.

As we left the hearing, Dawn commented that the judge’s demeanor was “night and day” from when Dawn was arraigned. She had no doubt that Steve’s knowledge and report had played a huge part in allaying the judge’s concerns.

Why small potatoes matter

Sometimes standing in the gap means taking a stand where others think it’s not worth it.

This is the kind of stand we had to take in Kristen and Kirk’s case, in which the Virginia Supreme Court unanimously sided with us. When we originally brought the suit we were very concerned that the judges just wouldn’t get it. Yes, we were objecting to requirements that weren’t in the homeschool law. But we weren’t objecting to “big” things like background checks or home visits. We were objecting to submitting birth certificates and utility bills.

“Small potatoes,” you might say. The trial court certainly thought that.

As I was preparing for the oral argument before the Virginia Supreme Court—and struggling with that very issue—HSLDA Board Chairman Mike Farris recommended I borrow from James Madison’s Memorial and Remonstrance Against Religious Assessments.

Madison wrote the remonstrance in opposition to a bill sponsored by Patrick Henry, which would have imposed a tax to support the Christian religion. Given that the Anglican Church was the established church of Virginia at the time (and our federal First Amendment, with its Establishment Clause, was several years away), this was not exactly a controversial bill. Nevertheless, Madison thought it necessary to draw a line in the sand. He explained why:

Because it is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same authority which can . . . force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

A request for a birth certificate may seem benign. But seemingly benign issues have previously led to considerable heartache for homeschoolers.^[1]

Challenge 2: Security for Homeschool Families

The other set of challenges we’re facing involve the security that families feel, both in their homes and in the privacy of the parent-child relationship.

It goes without saying that no child should suffer abuse, and that the government has an important—even necessary—interest in protecting children from abusive adults, including parents.

It is also true that most reports—often the vast majority—are ultimately closed as unsubstantiated; that most CPS investigators work staggering caseloads for little pay; that investigations can have untold physical, emotional, and psychological effects on children for years to come; and that these investigations tend to be at their most explosive when the family and the investigator disagree on the family’s doorstep.

The legal principles that govern these encounters are about as clear as any legal principles that emanate from the Fourth Amendment. Entering a home to collect information is a search, actually collecting that information is a seizure, and interviewing a child may, under the circumstances, constitute either or both.

A search or seizure of, or within, one’s home is reasonable (and therefore constitutional) only if the investigators receive consent in advance, obtain a court order, or have probable cause and are confronted by an emergency that prevents them from obtaining a warrant first. Any egregious violations of these principles may expose investigators—and their agencies—to lawsuits and liability.

Holly’s story

Over the years, HSLDA has litigated several cases aimed at securing Fourth Amendment rights. Our most recent involves the Curry family in Kentucky. On her way to karate practice, Holly left her six children in the family van for a few minutes to grab some coffee and muffins from a local shop. It was a cool March morning, and the van’s AC system was running. When Holly returned, she was met by officers who had received a report about her children. The officers saw that all the children were safe and sound in the vehicle, but told Holly that they would have to report the family to CPS.

The following day, an investigator came to Holly’s house and demanded entry to her home. When Holly asked to reschedule (her husband was out of town, but would be returning in a few days), the investigator left, then returned with a deputy sheriff, who threatened to remove Holly’s children unless she let them in. Terrified of losing her children, Holly complied. The investigator interviewed several of the children in a separate room, then proceeded to strip search all six children (ages 1–7). No evidence of abuse was found, and the investigation was closed.

We helped the Currys sue the investigator and the deputy, on the grounds that both the entry into the home and the strip searches violated the Fourth Amendment. The federal judge who heard our case on summary judgment ruled in favor of the family.

After a CPS investigator strip-searched Holly Curry’s six kids (ages 1–7) during a non-emergency investigation, HSLDA defended the family’s Fourth Amendment rights in court, and a federal judge ruled in their favor.

Here’s what the Curry case reminds us: we live in a time when even minor allegations can result in significant, intrusive investigations. 

The effect of intrusive investigations and why we take CPS cases

A report released earlier this year by the Department of Human Services estimates that CPS agencies received 3.9 million calls in 2020. Of those, 46% were screened out early in the process because they did not amount to abuse or neglect, lacked sufficient information for follow-up, or were reported to the wrong agency.^[2]

Of the three million children who were the subjects of reports that were screened-in, two-thirds were determined to be the subjects of either unsubstantiated reports (there was no evidence or inadequate evidence that the report was true) or reports where there was no alleged maltreatment.^[3]

These concerns are not new. Duke Law professor Doriane Coleman cautioned almost two decades ago that “the majority of intrusions on family privacy [in CPS investigations] do not directly benefit the children involved, and in many instances actually cause them demonstrable harm.”^[4]

In the years since, other researchers have found that while children have “a strong interest in being free from abuse,” they also have “a strong interest in being free from intrusive traumatic questioning by strangers.”^[5] Unnecessarily intrusive investigations “can be traumatic and psychologically harmful to the children as well as damaging to the family as a whole.”^[6]

HSLDA started tackling these cases a long time ago because if your right to be in your home isn’t secure, your right to homeschool isn’t secure, either. We have found that when child welfare investigators are checking out allegations and can’t question a child directly and away from parents at a school building, they tend to go straight to family’s front door.

So how do we tackle this challenge?

One very practical way is to keep CPS out of categories of disputes that lead to unnecessary investigations.

Take Tanya’s situation in New York City. She filed her papers with the Central Office of Homeschooling, who was supposed to let her school district know. But that didn’t happen. What did the district do? They called CPS and reported her for neglect. Bam. An unnecessarily intrusive investigation.

To prevent this from happening, many states have mandated by statute that schools follow certain internal procedures before they can get other branches of the government involved. Simple, common-sense things like calling the parents to let them know their child is accumulating absences. Providing parents an opportunity to explain what happened. Scheduling conferences with parents to address concerns. Even administrative appeals to address paperwork disputes.

Only then can officials make reports to CPS, or summon the family to court.

Another solution is to more carefully define what constitutes “abuse” and “neglect.” Physically assaulting a child? Definitely “abuse.” Saying you’ll teach your child at home for 180 days, and then not teaching the child at all? Probably “neglect.”

Teaching your child all 180 days, but forgetting to file your paperwork until day 100? That shouldn’t be neglect. But we have parents who call us about investigations like this all the time. We don’t always need clear definitions of “neglect” to win those cases . . . but boy, do they help.

How it all came together in the Berryman case

Just two years ago, we got a call from the Berryman family in Texas. An unknown person had reported seeing the Berrymans put their 8-month-old infant to sleep on a closet floor with the baby crying “excessively.” The Berrymans told the investigator this description was wrong: their baby slept in a walk-in closet, which they had converted to a small nursery. They also brought their infant to the front door (not crying). According to the investigator’s notes, the baby had “no visible physical injuries” and “appeared to be clean and healthy.”

That should have ended the matter. But it didn’t.

The investigator said she had to enter the Berrymans’ home and interview all of their children. When the family declined, she asked the court for a court order—and got it.

Obviously, it is better to have an investigator get an order from a court than threaten to take kids away like another investigator did to the Currys. But the Fourth Amendment requires “probable cause” that a child is abused or neglected before such orders can be issued, and that was lacking here.

Texas defines “neglect” as an unexcused failure on the part of a parent that poses a substantial risk of harm or impairs the child’s growth, development, or functioning. Converting a closet to a bedroom for an infant doesn’t do either of those things.

Fortunately, we had the answer, or at least most of it—what happened to the Berrymans resembled what had happened to two other homeschooling families, two decades prior.

• In 1999, someone anonymously reported to CPS in North Carolina that a 2-year-old child had been seen naked in the driveway of the Stumbo family’s home. The Department of Social Services (DSS) insisted they had to enter the home to investigate. When the Stumbos declined, DSS filed a petition in court to “prohibit interference with or obstruction of ” their investigation. So we turned to the definition of “neglect,” and the North Carolina Supreme Court unanimously agreed that these allegations did not amount to “abuse” or “neglect.” Three justices further concluded that orders not based on probable cause would also be unconstitutional because of the Fourth Amendment.
• We argued a similar case two years later in Pennsylvania. CPS didn’t have any specific allegations: there were some general concerns about “medical neglect,” but their key fact was that Pennsylvania law required CPS to “complete a home visit” as part of their investigation, and the family had said “no.” We argued that the government can’t bypass the Fourth Amendment just because someone asserts their Fourth Amendment rights. The court agreed with us.

In total, our brief for the Berryman family cited six cases where HSLDA either represented the family or filed an amicus brief. The following day, the Texas Court of Appeals issued an emergency stay, and a month later unanimously concluded that CPS had no grounds to enter:

It is not uncommon for a parent to place a baby on the floor to play or nap. Nor is it uncommon for a parent to allow an infant to cry herself to sleep, which is a known method of sleep training. And it is certainly not beyond the realm of reasonableness that a parent might convert a closet into a nursery, albeit a small one. . . .

CPS might disapprove of these parenting decisions. But as the Court of Appeals said in its decision in Berryman, the Constitution does “not permit a State to infringe on a parent’s fundamental right to make child-rearing decisions simply because a state judge believes a ‘better’ decision could be made.”

Small potatoes, big effect

The Berrymans’ case was a major one that we’ll be talking about for years to come—as was Kirk and Kristen’s, and Dawn’s, and so many others. And it may feel tempting to casually dismiss some of these issues as “just one piece of paperwork,” or “just a small mistake by the officials.”

Small potatoes, right?

But the freedom that the homeschooling community enjoys today wasn’t won in one standalone, dramatic, theateresque court case. It was forged through countless homeschooling families doing what they do best: giving their kids the education that’s best for their growth and thriving.

Small potatoes matter!