L I T I G A T I O N R E P O R T
How Our Cases Are Stacking Up
Calabretta v. Floyd & Schwall
The forced entry into a member family's home by a social worker and police officer resulted in this civil rights litigation in federal court. More than two weeks following a report to social services that a child was heard to cry, "No, no, no," the social worker and her armed police escort presented themselves at the family home demanding entry without a court order or warrant. When the mother refused entry, the defendants intimidated her with threats, finally gaining entry. Once inside, the family's 12-year old daughter was whisked to seclusion for interrogation concerning family discipline and religious beliefs. Mrs. Calabretta was then ordered to remove the clothing from her 3-year old daughter in order to permit a search for marks or bruises, to which she consented through her own tears and the crying of the child. No evidence of abuse was found and the case was closed, but the family was left humiliated and outraged.
Depositions of the hotline operator, social worker, police officer, and police chief were taken on October 16, 1995. The police officer and police chief acknowledged that the only lawful ways to enter a private residence are with a warrant (court order), exigent circumstances, or consent. It is the officer's contention, however, that every time social services requests the assistance of an officer, it is an emergency. No judge will be persuaded by such nonsense. Furthermore, the officer admits that while still on the porch of the Calabretta home he advised Mrs. Calabretta that he might resort to force if she did not permit his entry. Therefore, his contention that his entry was consented to is equally ludicrous.
The hotline operator, as well as the investigating social worker, admitted at their depositions that the situation at the Calabretta home was not an emergency. Since the judge has already ruled that the Fourth Amendment applies to child abuse investigations, the social worker is left to convince the court that she entered upon voluntary consent. With the police officer outside threatening to break down the door, this will be an extremely difficult argument to make.
Cloverdale Community School v. Megan S.
Since April of 1993, Megan's parents have been working with the public school to determine what is the Free Appropriate Public Education (FAPE) for Megan. The parties convened at least twelve (12) case conferences since that time and during the 1994-95 school year alone, met at least four (4) times to determine the appropriate program and placement for the 1995-96 school year. When the parents determined that the school did not accurately assess their daughter's needs and were not going to provide the services she requires, they elected to remove her from the public school system and educate her at home. The school insisted that they are, nevertheless, entitled and under a duty to evaluate Megan further in order to determine the appropriate placement for the child.
The hearing officer ruled that the absence of an IEP or psycho-educational data should not be used to suggest that the home school program is not appropriate to meet the child's educational needs. Only progress assessment can demonstrate the appropriateness, or lack thereof, of the program. The court went on to explain that under state and federal law, a local educational agency (LEA) is obligated to make available those educational services required by students' disability. "Under existing law the School cannot require those services to be utilized within a home school program." The hearing officer ordered the case dismissed and relinquished all jurisdiction in the matter.
In the Care and Protection of Zolene P.
When Donna Goodner brought her 13-year old daughter home from the public school to assume responsibility for her education, it was just a matter of weeks before the Allen County Attorney filed a petition alleging educational neglect of the child. A magistrate judge ruled that Ms. Goodner's home school was neither a public, private, or parochial school and violated the state's compulsory attendance law. We appealed.
We argued at the appeal on October 12, 1995, that Mrs. Goodner's school was a valid "private school" under the laws of Kansas, while the county attorney argued that home schooling is illegal per se in Kansas. The district judge, however, adopted a middle ground and ruled only that Zolene P. was truant from the date she came home from public school until the date her mother formally registered their home school as a private, non-accredited school in Kansas. The case stands only for the proposition that one should register his private home school in order to ensure full compliance with the state's law. The judge's decision confirms our position that home schools in Kansas operate under the laws regulating private schools.
In re Family of C.
Mr. and Mrs. C are the parents of four children, two of whom attend public school and two of whom are educated at home pursuant to the Virginia home school statute. The Pittsylvania County Department of Social Services was investigating the Family of C for allegations of educational neglect and physical abuse. The educational neglect was with respect to their home schooling, and the physical abuse was with respect to a bruise that was seen on the leg of their 13-year old son. Mr. and Mrs. C refused to permit the DSS worker to enter their home to interview their children, so the two children attending public school were interviewed at the school. Mr. and Mrs. C still refused to permit the remaining two to be questioned.
On October 16, 1995, a uniformed officer from the sheriff's department delivered three subpoenas to their home demanding that they appear with three of their children at the district court office supervising child abuse complaints. The officer advised them that he would obtain a warrant for their arrest if they refused to comply with the subpoenas. When Mr. and Mrs. C provided our office with copies of the subpoenas, we realized that they were fraudulent. There is no underlying court proceeding or legal authorization of any kind for such a subpoena. We then confronted the court personnel concerning the fraudulent subpoenas, which personnel quickly acknowledged their falsity and promised to cease and desist from such illegal activity. A civil rights lawsuit has been filed on their behalf seeking a declaratory judgment that the custom or policy of using fraudulent subpoenas to gain the "cooperation" of parents is a violation of the Fourth Amendment right to procedural due process.
Makala D. Racobs v. William Perry, Secretary of Defense
Nineteen-year-old Makala Racobs was denied entrance into the Navy by a recruiting officer in southern California because she is a home school graduate, rather than a graduate from a traditional high school program. We filed a lawsuit on her behalf against the Secretary of Defense alleging a violation of equal protection of laws guaranteed to her by the Fifth Amendment of the Constitution. The Secretary filed a motion to dismiss the lawsuit on the ground that the military is not subject to judicial review in the matter of recruitment policy, but even if they are, the policy is based upon empirical data demonstrating the higher attrition rates of non-traditional vs. traditional high school graduates. We filed a responsive brief in which we challenged their supposed empirical data by demonstrating from their own numbers that home school attrition rates are second only to applicants with two years or more of college.
After reviewing our brief, the Secretary's attorney convened a meeting with us in which they proposed a settlement. They have offered Makala Racobs entrance into the Navy with an opportunity to be reexamined for admission into the Naval Medical Program. In addition, the parties are close to an agreement upon an experiment in which several hundred home schoolers would be admitted to the Navy and tracked for an attrition rate study. If the attrition rates are comparable to traditional high school graduates, the Department of Defense would consider placing home schoolers in the same enlistment category as traditional high schoolers. This appears to be a great opportunity for home schoolers to reshape the nation's military enlistment policy with a demonstration of their individual perseverance.