Home School Court Report
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VOLUME X, NUMBER 6
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WINTER 1994/1995
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Cover Story
Lightning Litigation: A Bronx Family's Rights Protected

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C O V E R   S T O R Y

Lightning Litigation: A Bronx Family's Fourth Amendment Rights Protected

Family R, Home School Legal Defense Association members in Bronx, New York, have five children, 12 years old and younger. They are in compliance with New York's home school law, so we were not overly concerned when the Department of Social Services (DSS) made inquiry regarding the education of their children. We did not know, however, that an irascible neighbor had made an anonymous call to DSS alleging that the children are "apparently left home alone" and are "seen alone outside for hours at a time."

On December 14, 1994, at 9:30 a.m., our office learned that there existed a court order from a family court in Bronx, New York, authorizing entry into the premises of Family R to conduct a social services investigation. The home would be inspected and the children interrogated outside the presence of their parents. What had begun as home school harassment was now an abuse and neglect investigation.

Unless there exists evidence of immediate danger or harm to a child, it is our position that the Fourth Amendment to the United States Constitution protects a family from entry into their home by state officials without a search warrant or court order. To secure a court order, there must exist probable cause to believe that an abused or neglected child may be found on the premises. Unsubstantiated hearsay, like the allegations against Family R, should not permit entry into a home.

We further learned on December 14 that our clients had refused entry to DSS and that a hearing was scheduled for 2:30 p.m. of that same date to report to the court concerning the carrying out of the order to enter the premises. HSLDA had five hours to be in New York, accompanied by local counsel, and armed with a legal brief in opposition to the court's order to enter the premises.

Dewitt Black combed our attorney lists in search of a willing New York lawyer and David Gordon made airline reservations and reviewed the file. Meanwhile, Michael Farris began to revise a brief from similar cases we have handled in Alabama and Texas to persuade the court to quash its previous order to enter. When David Gordon left the office en route to his 11:50 a.m. flight to New York, Mike Farris was still scrapping with the word processor to produce the brief.

As David was being shuttled to the airport by a co-worker, he heard an unfamiliar sound. It was the ring from a cellular phone in his coat pocket that had been placed there for this trip at Mike Farris' request. Surprised, David answered the phone, only to find out that it was Mike wanting to know where David was on the road to the airport. David gave him the location and Mike responded by saying, "We're behind you. I'm trying to get you the brief. Call me when you get to the airport exit from the highway." Fifteen minutes later, David called Mike Farris to report that they were entering the airport complex. "I don't think we can make it," Mike said, "but stay at the gate as long as you possibly can before boarding the plane."

David was delivered at the airport just seven minutes before his flight's departure, so he literally ran to the gate. His haste was unnecessary, however, because his flight was delayed. Now he watched the long terminal corridor as he waited for the plane to see whether Mike Farris would arrive with the brief. At 12:10 p.m. the flight was announced and all passengers were requested to board. David waited, but still no sign of Mike. All of the passengers were on board as "Last call for Flight 1056 to LaGuardia" was heard from the intercom. Then David saw in the distance Aaron Fessler, computer specialist at HSLDA, dashing toward him. The document was successfully handed off, and David calmly boarded the plane—all in God's perfect timing.

At 2:30 p.m. in Bronx, New York, David presented the motion to quash the court order with the accompanying brief. In order to give the DSS attorney time to respond, the judge agreed to stay the order to enter and adjourned for three weeks. In court on January 3, 1995, DSS withdrew its petition to enter the premises and the case was dismissed.

Outside the courtroom, the judge's clerk confided to David that she has "been waiting six years" for someone to do what HSLDA did in opposition to DSS. It was the first time they have been opposed on a petition to enter the home of a citizen. A New York family stood up against the government's illegal invasion of their home and prevailed. It is our hope that every family in the Bronx will benefit from their courage.