Court Report

Two Days, Two Challenges

Peter Kamakawiwoole, Esq.

Litigation Counsel

HSLDA is first and foremost about defending the freedom of parents to teach their children at home—whether their freedom is challenged in a local school board meeting, in a courtroom, or in a legislative committee.

One important battleground is the home (where most homeschooling takes place). From the beginning, we’ve worked to protect the privacy of the home, and we’re still working to protect that right today.

My two most recent cases were in the middle of 2022.

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.

Peter Kamakawiwoole, Esq.

Litigation Counsel

Peter is a litigation attorney and homeschool graduate who helps HSLDA member families resolve legal difficulties related to homeschooling.