The Home School Court Report
Vol. XXIV
No. 1
Cover
January/February
2008

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ARIZONA

Judge Slams Coercive Tactics

Case: Loudermilk Family v. Administration for Children, Youth and Families
Filed: March 3, 2006

by Jim Mason

A federal court in Arizona has ruled that an unsupported threat to place children in custody, made to coerce cooperation with a social services investigation, violates the constitutional guarantee of family privacy and integrity.

As detailed in the March/April 2007 Court Report, social workers and sheriff’s deputies came to the home of Home School Legal Defense Association members John and Tiffany Loudermilk, demanding entry based on a six-week-old anonymous tip that the newly constructed home was unsafe for children. The Loudermilks declined consent, as was their right under the Fourth Amendment. After an escalating confrontation at the front door that lasted 40 minutes, the social workers, backed by no fewer than four deputies, threatened to take the Loudermilks’ children into custody and place them in foster care if the Loudermilks continued to deny them entry into their home. An assistant attorney general repeated this threat to HSLDA Attorney Thomas Schmidt, who was assisting the Loudermilks by phone during the confrontation.

Under this duress, Mr. and Mrs. Loudermilk allowed the social workers and sheriff’s deputies inside. Within five minutes, the social workers determined that the anonymous tip was false and left.

HSLDA filed a federal lawsuit on behalf of the Loudermilk family, alleging that the search violated the Fourth Amendment and that the unjustified threat to remove the children was a separate constitutional violation of the family’s Fourteenth Amendment right to privacy and family integrity. The social workers and assistant attorney general moved to dismiss the claims, arguing that neither the search nor the threat to remove the children violated the Loudermilks’ constitutional rights.

On September 27, 2007, the judge ruled in the Loudermilks’ favor, stating: “Defendants persisted in their threats to remove the children if Plaintiff Parents did not consent to the search, stating that [they] could arrest or handcuff the Parents in front of the children. Based on the allegations set forth in the Amended Complaint, viewed in Plaintiff’s favor, no reasonable official would have believed that his or her conduct was authorized by state or constitutional law.” With regard to the assistant attorney general, the court ruled that “Plaintiffs have sufficiently alleged that [the attorney] . . . by ‘threat’ exerted ‘coercive pressure’ on them to allow the search of their home so that their children would not be removed.”

The judge’s ruling allows the case to proceed to trial, and makes it clear that threatening to remove children to gain a parent’s cooperation is unconstitutional. HSLDA hopes that the ruling will change this common tactic used by investigative caseworkers across the country.

MAINE

Grandparents Denied Visitation

Case: F v. Braxton Family
Filed: August 27, 2007

by Darren Jones

HSLDA successfully defended a member family’s right to raise their children free from unwanted visitation by the children’s grandparents.

Mr. and Mrs. Braxton (name changed to protect family’s privacy) homeschool their five children. When the older children were young, the family lived near Mrs. Braxton’s parents in Missouri. However, the relationship between the two families became tense because the grandparents disagreed with some of the Braxtons’ religious and child-rearing decisions, and even sought to undermine the parents’ authority many times. After several attempts to reconcile but still protect the boundaries they had set for their children, Mr. and Mrs. Braxton reluctantly cut off contact with the grandparents in 2002 and moved away.

Several times during the next few years, police had to be called to escort the grandparents off the Braxtons’ premises. The grandparents filed an action for visitation in Missouri state court, but their petition was denied.

Mr. and Mrs. Braxton eventually moved to Maine. In September 2007, the grandparents filed yet another lawsuit trying to force Mr. and Mrs. Braxton to allow them unsupervised visitation of the children every month. The Braxtons called HSLDA for assistance.

HSLDA Staff Attorney Darren Jones immediately drafted a motion to dismiss the petition. Jones pointed out to the court that under Maine law, grandparents had to prove that they had acted in a parental capacity to the children in order to obtain visitation. (The Maine Supreme Court has held that grandparents cannot seek visitation with a grandchild based merely on a normal extended-family relationship.) The grandparents never alleged a parental capacity in their petition; in fact they could not, because they had never acted in such a capacity.

On October 17, 2007, the court agreed with the parents’ position, stating that the grandparents had failed to demonstrate any “urgent reason” in support of their petition and ruling that the grandparents did not have a sufficient existing relationship as required by Maine law to even establish their standing to file a petition. The grandparents’ case was dismissed with prejudice—that is, they will not be allowed to amend their complaint and re-file it alleging more facts.

HSLDA is pleased with the judge’s quick decision. Maine law was clearly on the parents’ side in this case, and it is encouraging to see the judge recognize the right of parents to direct the upbringing of their children.

NATIONAL

SSA Changes Policy

Case: Couser v. Social Security Administration
Filed: November 29, 2004

by Nicholas Bolzman

After HSLDA challenged the Social Security Administration’s (SSA) policy regarding disability benefits for homeschoolers for the second time, the SSA has changed its policy. The SSA operates a benefits program for the low-income disabled. However, because the administration wants to encourage work among high school students, any income that they make while still enrolled in school full-time is not counted in the calculation of their eligibility for benefits. Under the old policy, the SSA did not consider homeschooled students to be full-time students, and therefore they were not eligible for the benefits whether or not they worked.

“It was a case of clear-cut discrimination,” said HSLDA Staff Attorney Darren Jones.

On two different occasions, HSLDA represented families on the issue of homeschoolers’ student status as regarded by the SSA. The first case led to a one-time exception for the family we represented, but not a general rule. However, as a result of the second case, Couser v. Social Security Administration in Pennsylvania, the SSA realized that this problem was not going away and officially codified a change.

Homeschoolers are now considered to be “students” under the SSA guidelines as long as they are in compliance with the homeschooling law of their state. The discriminatory language in the previous policy has been removed, and in the future, homeschooling families should not run into this problem.

Pending Cases

AL B Family v. Social Security Administration

GA Department of Family and Children's Services v. P Family

HI L Family v. Social Security Administration

IA Winkelman v. Department of Veterans Affairs

KS T Family v. Social Security Administration

MA Commonwealth of Massachusetts v. R.P.

MS C Family v. Department of Veterans Affairs</p>

NJ S Family v. Division of Youth and Family Services et al.

WA M Family v. Department of Social Services

Pennsylvania RFP Cases

Combs v. Homer-Center School District
Hankin v. Bristol Township School District
Nelson v. Titusville Area School District
Newborn v. Franklin Regional School District
Penn-Trafford School District v. B Family
Prevish v. Norwin School District
Weber v. Dubois Area School District