The Home School Court Report
Vol. XXII
No. 1
Cover
January/February
2006

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NEW MEXICO

HSLDA sues social worker

Case: Doe v. Children, Youth, & Families Department
Filed: 7-12-05

Calabretta in California. Stumbo in North Carolina. Gauthier in Pennsylvania. Home School Legal Defense Association members remember the names, and they've seen the faces behind our landmark cases defending parents' 4th Amendment right to be free from unreasonable searches and seizures. In all of these cases, HSLDA won court decisions that protected parental rights and paved the way for similar victories around the United States.

Now, HSLDA is seeking another such decision as we bring suit for a member family in New Mexico after a social worker and a police officer violated their 4th Amendment rights.

In July 2005, HSLDA filed a complaint in federal court on behalf of member John Doe*, whose family was investigated because of anonymous tips that have twice been proven false.

The New Mexico Children, Youth, and Families Department (CYFD) received an anonymous report on the Doe family in February 2004. Mr. Doe agreed to take his children, Jane and John, to the CYFD office—an hour and a half from their home. The social workers at the CYFD office demanded to interview the children alone, but at Mr. Doe's insistence, the interviews were conducted in the presence of the children's grandmother. Mr. Doe was not informed of the allegations until after the interviews had been conducted, when he was shocked to learn that there had been an allegation that his daughter, Jane, was being sexually abused.

Though CYFD declared the allegations to be unsubstantiated, both children began to withdraw from others, especially strangers, because of the hostile interviews. On Tuesday, August 10, 2004, a police officer knocked on the family's door, demanding that Mr. Doe allow CYFD to interview his children yet again—this time outside the presence of a relative or friend.

Because of another anonymous tip, the officer had been sent to take the children back to the CYFD office for a "clean" interview. When Mr. Doe said that he would not allow the officer to take the children unless he had a court order, the officer threatened to arrest him and place his children in CYFD's custody. Mr. Doe had no other choice than to allow the officer to take Jane and Joe to the CYFD office in the police car.

When Mr. Doe arrived separately at the CYFD office, where he had been told he would find his children, he discovered that they had not been taken there at all. Instead, they were interviewed at a "safe house."

Jane and Joe Doe were traumatized. They were afraid to answer the questions put to them for fear their answers would be misconstrued and used to take them away from their father.

After the interviews, the CYFD supervisor informed Mr. Doe that there had been yet another anonymous report of sexual abuse. Again, the allegations were totally unsubstantiated.

No thought was given to this family's 4th Amendment rights. Because the social workers and police ignored Mr. Doe's legitimate protests—only to find that the allegations made in the anonymous tips were completely false—HSLDA has filed suit against the social workers and officer. Discovery is currently underway.

PENNSYLVANIA

RFPA case update

Case: Combs v. Homer-Center School District
Hankin v. Bristol Township School District
Nelson v. Titusville Area School District
Newborn v. Franklin Regional School District
Prevish v. Norwin School District
Weber v. Dubois Area School District

Filed: Sept.-Dec. 2004

Since 2004, HSLDA has been heavily involved in a judicial battle in Pennsylvania, defending homeschoolers' right to educate their own children free from government interference. On December 8, 2005, the court issued a very disappointing ruling, stating that the home education law does not constitute a substantial burden on the families' religious freedom.

Under the newly passed Religious Freedom Protection Act, the Newborn, Hankin, Combs, Nelson, Weber, and Prevish families claimed exemption from the restrictions of Pennsylvania Act 169, on the grounds that Act 169 replaces the authority of God with the authority of the state in these parents' ability to choose and direct the education of their own children.

Act 169, which was passed in 1988 following the HSLDA case Jeffery v. O'Donnell, is currently the most restrictive homeschool law in the United States. Not only does it require a notarized affidavit of intent to be filed annually with the superintendent, it also requires up to three evaluations at the end of each school year along with detailed portfolios and attendance records.

The cases began with a lawsuit filed by HSLDA on behalf of Dr. and Mrs. Newborn in state court in Westmoreland County. (Read the full story in the November/December 2004 Court Report cover story.) The Newborns were quickly followed by the Hankin, Combs, and Prevish families. But because the families also claimed that their federal constitutional rights were being violated, the defendant school districts removed the cases to Pennsylvania's Western District Court in Pittsburgh. The cases were consolidated in January 2005.

In May 2005, HSLDA filed a motion for summary judgment with the court, attaching 30 binders as evidence which showed examples of the portfolios filed by homeschoolers under the requirements of Act 169. In this motion, HSLDA explained the threshold legal issues to the court: that Act 169 does substantially burden these religious homeschoolers, and that Act 169 is not the least restrictive means of furthering the state's interest in setting aside the convictions of these families.

The court denied our motion for summary judgment on December 8, 2005, ruling that Act 169 did not violate the families' constitutional religious freedom. We are disappointed with the decision, because we believe the law was misinterpreted, and we are appealing it.

* Name changed to protect family's privacy.