Is Fourth Amendment Protection a New Concept?

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Harvard law professor Elizabeth Bartholet wonders why Home School Legal Defense Association cares so much about protecting the rights of homeschoolers to the privacy of their own homes:

Professor Bartholet is not the first to wonder why this topic matters so much to homeschoolers. She goes further than most do though, urging  that those few who would not be banned outright receive a minimum of two mandatory home “visits” by school authorities each year, just because it’s a homeschool. (In most cases, visit is a euphemism for a nonconsensual search of a home.)

She is wrong to say that HSLDA seeks to expand the Fourth Amendment; instead, we seek to preserve the true meaning of the Fourth Amendment in the context of child abuse investigations. And we do so to protect children from the trauma that follows when CPS investigators do not respect the rules governing the most protected place in America: your home. As another law professor put it, “the majority of intrusions on family privacy do not directly benefit the children involved, and in many instances actually cause them demonstrable harm.”^[1]

As we explained in a recent friend-of-the-court brief to the Supreme Court of Pennsylvania in a case involving the Fourth Amendment:

The answer to Professor Bartholet is almost self-explanatory: the right to teach your children at home doesn’t mean very much if the government can enter your home anytime it wants, for any reason it wants. Fortunately, the Fourth Amendment limits that sort of thing. That isn’t a novel position: it’s a position that is older than the amendment itself.

I initially set out to make that case when I first sat down to write this article, but two months later, I emerged with 21,000 words, which is far too long for articles in this series. I plan to submit the entire piece to a law review—perhaps even at Harvard—to further this important discussion. But in the meantime, I hope this brief summary will provide you and your family with a small measure of security as you learn together at home.

Of the Fourth Amendment, merry old England, and “the child Independence”

Some situations in Fourth Amendment law are tricky, but most cases involving CPS home investigations are not. These cases are governed by two basic rules:

• First, if the government wants to search your home, it needs to get a warrant based on probable cause from a neutral judge; otherwise, its search is “presumptively unreasonable” and violates the Fourth Amendment.^[2]
• Second, the exceptions to this rule are few and difficult to prove. One exception is “consent”: the government doesn’t need a warrant if you allow it into your home, but only if you do so based on your “free and unconstrained choice” (allowing CPS into your home because they threaten you doesn’t count).^[3] Another exception is “exigent circumstances,” when the government has both probable cause and a “compelling need for official action” that is so imminent that there is “no time to secure a warrant.”^[4]

Both rules were a response to British practices that contributed to the United States’ War for Independence: general warrants and writs of assistance.

General warrants were incredibly broad, allowing the crown’s officers to search for anything, even if they didn’t know what they were searching for (we call these fishing expeditions now, and the Fourth Amendment strongly disfavors them).^[5]

Writs of assistance were arguably worse: an agent with a writ of assistance could force local sheriffs to assist him in performing any search. These writs “were good for the lifetime of the reigning sovereign plus six months,” and they remained in effect even if the agent died.^[6] If a writ of assistance had been obtained when Queen Elizabeth ascended to the throne in 1952, it would still be valid now, almost 70 years later.

These writs of assistance had been used in America at least as far back as 1696,^[7] but when King George II died in 1760—and the writs issued in his name were set to expire—they were challenged by James Otis, a “revered trial advocate and legal orator” in Massachusetts.^[8] Otis argued that nothing less was at stake than the struggle for the ancient liberties of Englishmen: “every one with this writ may be a tyrant,” he warned.^[9]

Otis lost, but his orations “quickly became a staple of colonial constitutional argument.”^[10] When Parliament reauthorized the writs in the Townshend Duties Act of 1767, “a new round of legal battles” erupted that involved “nearly every judge and prominent lawyer in America.”^[11]  Despite formidable pressure from the British, the colonial judges “from Connecticut to Florida, with one exception, stood firm in opposing the legality of the particular form of writ demanded of them and continued in their judicial obstinacy through six years of nearly constant efforts to force them to yield.”^[12]

The struggle had a marked impact on the founding generation. For a generation that “feared the discretion of peace officers,” the Fourth Amendment offered a two-part safeguard: “review by a neutral magistrate and the requirement of a record” that “work[ed] together to limit the potential for abuse.”^[13] Those freedoms are as important today as they have ever been.

New Cases, Old Principles

Over the years, HSLDA has defended many families from warrantless home invasions, using these very same principles. Two similar cases—twenty years apart—illustrate how important and timeless these principles are.

In October 1994, a social services investigator went to the home of Robert and Shirley Calabretta.^[14] Shirley was home, alone with her children. Two days before, someone had anonymously reported hearing a child screaming “no, daddy, no,” and “no, no, no” coming from inside the house. The investigator demanded to be allowed in the home but did not have a warrant, so Shirley refused. The investigator left, took a vacation, then returned 10 days later with a police officer, who helped the investigator force her way in the home. Shirley was ordered to pull down the pants and underwear off her 3-year-old; the investigator then looked for signs of physical abuse. There were none.

Twenty-three years later, in March 2017, a social service investigator went to the home of Josiah and Holly Curry.^[15] Holly was home, alone with her children. The day before, Holly had been stopped by a local police officer for leaving her six children in her locked, air-conditioned van for a few minutes to pick up a snack for her children; the officer had verified that all the children were safe and let Holly go with a warning. Now, a CPS investigator was demanding that she had to come in the home and see all the children. She did not have a warrant.

Holly offered to bring her children to the door, but that wasn’t satisfactory—the investigator left and returned with an armed sheriff’s deputy, who told Holly that if she did not let them in, they would take her children. Holly felt she had no choice; she backed away from her door, crying, and they came in. Once inside, the investigator inspected the ears, neck, torso, and private areas of all six children. She found nothing.

Both families turned to HSLDA for help. We sued the officials involved. In Calabretta, the federal court agreed with us, and the Curry case is awaiting decision.

Our cases relied on the same arguments that Otis and others had raised almost 300 years ago. Neither investigator had a warrant, which made their search “presumptively unreasonable.” Neither tried to get a warrant, either, and both could have done so without putting anyone at risk.

In the Calabretta’s case, the investigator waited 10 days—and took a vacation—before she decided the situation was “exigent.” And in the Curry’s case, the police officer on the scene the day before the CPS visit had no concerns about Holly’s children; he concluded that the children were safe.

Calabretta v. Floyd wasn’t a hard case. As we argued to the Ninth Circuit on behalf of the Calabrettas, to enter a family home, “a child abuse investigator must have either a warrant or probable cause to believe that there are exigent circumstances relating to the safety of the child.” The investigator didn’t have one, and she didn’t think she needed one. But that didn’t change the fact that “the Fourth Amendment wall . . . still stands to guard the private homes of citizens from overzealous officials.”^[16]

The Ninth Circuit agreed, not because our argument was novel, but because it was basic: “nowhere is the protective force of the Fourth Amendment more powerful than it is when the sanctity of the home is involved,” the court wrote. ^[17] “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.”^[18]

Conclusion

It is unfortunate that 20 years after Calabretta, homeschooling families like the Currys still find themselves at the mercy of investigators who fail to grasp the essence of the Fourth Amendment. Professor Bartholet may not like the arguments that we advance. But she is wrong that they expand the meaning of the Fourth Amendment. They are, in fact, older than the amendment itself, and are so universally embraced that they belong to no partisan.^[19]

Rather, it is the changes she advocates—regular home visits for every homeschooling family, just because they homeschool—that raise the very specter of suspicionless fishing expeditions that birthed the Fourth Amendment, while doing away with all of the amendment’s hard-fought safeguards.

Fortunately, her view is not the law. The Fourth Amendment ensures that you have the same right to be secure in your own home that Shirley Calabretta and Holly Curry have. And that’s important for children. Ignoring the fourth amendment during CPS investigations “causes more children more harm than good.”^[20]

And if someone tells you differently, we’ll be right here.