A summons to court
The news came in on a quiet Thursday morning: a member in New Jersey was just served a summons to appear
in court. The charge? The mother had refused to let an
investigator from the Department of Children and Families
(DCF) enter the family’s home without a court order.
The mother’s action was of course perfectly legal (see the
Fourth Amendment, US Constitution). And, as it happens,
New Jersey has a procedure for when parents assert their
constitutional rights: officials go to court and ask a judge to
issue an order. So, that’s what this investigator did.
After reviewing the court papers, I spoke with the family
and learned some additional information: although the
mother hadn’t let the investigator into her home, she did
have a lengthy conversation with her outside the home. Her
two children also spoke with the investigator—one of them
even discussed her homeschool schedule at length with her.
Later on, the investigator noted in her report that both
children were in good health. There were no allegations
about the condition of the home—only that the children
were left unsupervised (in reality, their grandma was
watching them the whole time). But the department wanted to enter and have a look around anyway.
Another phone call
Just 24 hours later, a second family—this time in
Indiana—called to say they were being investigated by
the Department of Child Services (DCS). A caseworker spoke to them and saw their kids from outside their
home. The parents showed the caseworker the detailed
education records for their homeschool programs, and
the investigator made no allegations about their home
after that. However, the caseworker went to court to gain
access, even when the parents had denied it.
Déjà vu? Oui.
At least I was prepared—thanks to HSLDA’s experience and the US Constitution.
A time-tested theory
The Fourth Amendment establishes the right to be
secure in our homes and persons. Our homes receive
heightened protections under our nation’s highest law.
Unless there’s an emergency, investigators need permission or a court order to enter. And to get that order,
the investigators must have probable cause to believe that
someone committed a crime or that a child is in danger.
I saw no evidence that either investigation had that
probable cause. The investigators had already seen and
talked to the children, and both petitions to the courts
said the children appeared in good health.
Investigators had also talked to the parents, who provided detailed information about their homeschool
programs. And there were no allegations about
the condition of the home (much less probable
cause to believe it was unclean or unsafe).
Under those circumstances, the Fourth Amendment
prevents investigators from entering a parent’s home—and prevents judges from issuing a court order that would
compel the parents to acquiesce.
So we ran the playbook that’s proved so effective for
decades. As we explained in the briefs for these two
cases, court after court after court (many times, in cases
we litigated) has reaffirmed the safety of families in their
own homes: Calabretta v. Floyd in the Ninth Circuit, In re
Petition to Compel in Pennsylvania, In re Stumbo in North
Carolina, and In re Berryman in Texas.
Good help makes all the difference
In both of these cases, hearings were going to take
place imminently (first thing the following week). So, if
we were going to defend these families successfully, we
needed help on the ground, we needed it fast, and we
needed help we could trust.
Thankfully, in the 40 years that we’ve been defending
homeschool freedom, we have met and partnered with a
host of like-minded lawyers across the country.
In New Jersey, that attorney was Chris Brennan, who
has practiced before the juvenile court for many years.
His knowledge of the court and advocacy at the hearing
were crucial to the judge’s decision that the investigator
could not enter the home. And once the judge made
that decision, Chris worked tirelessly to get the complaint dismissed (and to hold everyone to the terms of
that dismissal). That intimate knowledge of the specific
court—and its inner workings—is an invaluable thing to
have when you’re trying to win a case.
Likewise, we partnered with attorneys Colin Koons
and Beth Cox in Indiana. Colin and Beth have helped
many families in Indiana over the years, and their familiarity with homeschooling—in addition to the Fourth
Amendment, Indiana’s child welfare laws, and DCS policy—convinced the judge not to order the family to comply with the DCS’s demands. Once again, Colin and Beth
worked diligently to make sure that everyone honored
the terms of the agreement, and got the case dismissed.
Two families. Three local attorneys. Two victories.
There is nothing new under the sun
Today is once again quiet. I’m grateful. The quiet never lasts long. But I’m grateful for the
chance it provides to reflect on how far homeschool
freedom has come in 40 years (from basically illegal to
lawful and thriving).
I’m grateful for the chance to remember all those cases
along the way—in courts, before legislatures, and in
the court of public opinion—where God has faithfully
protected homeschooling families.
Today is quiet. But if tomorrow isn’t, we’ll be ready.