How is the overall legal situation for home schoolers different than it was 10 years ago?
MIKE: Frankly, its easier to remember 18 years ago, than it was 10 years ago. Ten years ago, the right to home school freely in all states was still really in transition. Eighteen years ago, it was pretty much denied. Over the past 20 years, Home School Legal Defense Association has worked hand-in-hand with the state organizations to improve the legal climate by changing the law in a couple different ways.
One way was to directly change the law by litigation or legislation. In some states the old law was declared unconstitutional, like in Pennsylvania, for example. The legislature followed up and wrote a new law. In that case, the state organization, Christian Homeschoolers Association of Pennsylvania, pretty much wrote their law and then asked us for comments. In other states, we basically wrote the law for the state organization at their request and the legislature eventually adopted something pretty close to what we had written.
The other way we have used was to change the implementation of the law. For example, the actual law in Massachusetts hasnt changed. But the enforcement pattern of Massachusetts law has changed dramatically through sheer volume of interventions. Also, our state supreme court victory eliminated home visits in that state. This kind of indirect change has occurred in a number of states.
DAVID: Now, were not only defending families, but were also asking the courts to redress the injuries that lawless government officials have caused. Weve filed more civil rights cases in the last five years than we filed in the preceding 11 years, not counting the dozens of cases where we have defended home schoolers against suits filed by the government.
SCOTT: Ten years ago, home schooling was still a criminal act in North Dakota, Iowa, and Michigan. Seven times we went to the supreme court of North Dakota. Five times we lost. The two we won were on technicalities. Several times we appealed to the United States Supreme Court, which refused to consider whether parents rights protected home schools.
Today, home schooling is legal in all 50 states, including North Dakota. Ten years ago, the Supreme Court turned down all our important cases. Now, we routinely file friend of the court briefs before the Court, arguing for the principles of limited constitutional government.
MIKE: Overall, today far fewer people have difficulty with the truant officers than they did. It doesnt mean that we dont still see this kind of problem, but its far less frequent.
But, there is a second arena where were fighting the war for home school freedom. Thats the area of social workers. The social workers have more than made up for the gap, you might say, that the truant officers have left on our to do list.
We receiveif you average them outa call probably every day from a family with a social worker at the door. Most days, we can give them some alternative path to finding out what they want to know, in a way that honors the parents right to privacy in their home and to protect their children. But some social workers dont see the light. Theyre the reason that were engaging in a whole new arena of changing the law the second way.
What are you accomplishing now?
MIKE: I think that HSLDA was instrumental in changing home schooling lawalthough we had a lot of help from state organizations and others. And this is only in human terms; Gods intervention was the real reason for our success.
Now we are on our way to a second major changechanging the way social workers understand their authority to invade our families homes. The law has been clearly established since the Bill of Rights, but getting social workers to understand that they have to obey the Constitution has been a tall order. In this area, we primarily have to go on the offense because you cant litigate whats happened at the front door while social workers are standing there. So we have to sue them after the fact, and that means going on the offense.
DAVID: Thats right. And that strategy has been effective. We know that in California, policemen and
social workers are not so quick to coerce entry into homes. Even before the Calabretta decision, a social worker told me at a deposition that the police will not always help her get inside homes anymore. When I asked her why, she said, Well, ever since that case up in Covina, they wont always help us.
BACK TO THE ORIGINAL CONTRACT: We want the Supreme Court to limit congress and respect those matters properly reserved to the states and to the people. At the same time, we ask the Court to limit the states when the states exceed their bounds, says Scott Somerville, executive director for the Center for Original Intent.
That was the case HSLDA filed on behalf of the Kennedy family against City of Covina police officers and a social worker, so the word has spread among the police that there are consequences to violating a familys Fourth Amendment rights when assisting on a child abuse investigation. Now, since the Calabretta decision was rendered by the Ninth Circuit, social services departments all over the state are aware that they do not have the right to go into a home just because they received a report. They know now that if they dont have an emergency, they need to have a warrant.
Should Christians take the offense?
MIKE: The answer isnot if were suing other Christians. I dont believe in suing Christians. The kind of lawsuits we do are only against the government. Really, a lawsuit against the government amounts to an appeal. One level of government says, This is the law. But were saying, No, the higher law is contrary to what you say. Its the method our nation has set up to appeal decisions made by lower ranking government officials.
DAVID: And you know, Mike, when the apostle Paul was being falsely accused, he made his appeal to Caesar. Paul thought it appropriate to take his mistreatment to the civil authorities. And thats what were doing when we file civil rights complaints on behalf of families who have been mistreated by government officials.
What kind of cases are you filing now?
DAVID: The kind of cases that were filing now fall into three main categories: First, were suing the social workers and police officers for civil rights violations when they break into a familys home without a warrant.
For example, were filing a case next week in which two social workers told a home schooling mother, Mary DeSantis, that they needed to come inside to inspect her house and see her children, based on a report of abuse. Mary brought her children outside so that the social workers could see that her children were fine. But the social workers insisted on coming inside, against her consent, to check the utilities and refrigerator.
Unfortunately, the social workers had deceived Mary DeSantis. Once inside, they strip searched her thirty month old and eighteen month old. When they tried to do the same thing to Marys six year old, the child ran from the house crying. Fortunately, the social workers then left.
In the second category, were suing local school districts who have exceeded their authority under state law. A few years ago, Debbie Gaskin, a home schooler near Savannah, Georgia, withdrew her five-year-old daughter from the public school kindergarten. The school superintendent made up a rule that if a student had 10 or more absences, home education was illegal. So, he had Debbie arrested, handcuffed and taken to jail. The charges against her were dismissed. But we later filed a lawsuit against the superintendent who initiated those charges. That case was settled for monetary payment to Debbie.
Third, were helping home schoolers who are suffering discrimination by government officials. The Calvert County, Maryland, Parks and Recreation Department has denied home schooling parents use of the countys community centers. These centers are generally available for use by any citizen or groupBoy Scouts, Kiwanis Club, whatever. Any group, except home schoolers.
We are asking the court to declare this discrimination against home schoolers unconstitutional. The county is violating the home schoolers right to freedom of speech in a public place and their Fourteenth Amendment guarantee to equal protection of law.
SCOTT: In addition to the cases that HSLDA is filing now, late in 1998 Mike Farris came up with the idea for the Center for Original Intent of the Constitution. The Center is now a project of Patrick Henry College
The Center filed six friend of the court briefs in 1999 and has four briefs due by March 2000. The Supreme Court has accepted lots of cases where we can argue for limited federal government, for individual freedom, and for parental rights. Five of the nine justices clearly believe in limited government. They dont see the federal government as the answer to all problems. We are systematically briefing these justices on the original intent of the Constitution. We examine each case, asking, What would our Founding Fathers have said about this? Then, we provide the Court good reasons to decide the right cases the right way.
THE WORD HAS SPREAD: There are consequensces to violating a family's Fourth Amendment rights when assisting on a child abuse investigation. HSLDA Litigation Attorney David Gordon (center), who joined HSLDA in 1994, asks the courts to redress the injuries that lawless government officials have caused to member families.
We want the Supreme Court to limit Congress and respect those matters properly reserved to the states and to the people. At the same time, we ask the Court to limit the states when the states exceed their bounds.
For example, when the state of Washington passed a law that would let any person for any reason at any time petition the court to give them visitation rights with any child, we said, That goes too far! That is a state acting as a tyrant. And thats what the U.S. Constitution should prevent.
We are working towards an America where our federal government does a few things well and leaves everything else where the Constitution leaves itwith the states and with the people, respectively.
MIKE: It has been humbling to see God bless our efforts so mightily in the home school arenathe law has really changed. We are seeing Him bless us again in the battle against social workers. It is great to contemplate what may be ahead if our country actually begins to honor the whole Constitution.