The Home School Court Report
Vol. XXII
No. 5
Cover
September/October
2006

In This Issue

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INDIANA

Court Says Social Workers Must Have ‘Probable Cause’

Case: Indiana Department of Child Services v. R Family
Filed: 5-30-06

On June 1, 2006, the Roemers,*

a Home School Legal Defense Association member family, were vindicated in their stand on their constitutional rights when a judge ruled that county social workers needed “probable cause” to get a court order to interview the Roemer children.

On May 30, a social worker had appeared at the Roemers’ home, claiming that the Department of Child Services (DCS) had received allegations of child abuse or neglect. When the family pressed for more information, the social worker refused to reveal the specific allegations. Unwilling to have their privacy violated without good cause, Mr. and Mrs. Roemer did not allow the social worker to enter their home or talk with their children.

The next day, DCS filed a petition, without notice to the Roemers, asking for immediate access to the family residence. The petition still did not disclose whether the allegations had been submitted by an identified individual or an anonymous tipster. The petition did disclose, however, that the tipster had alleged that the home had unsafe or unsanitary conditions. The court ordered the Roemers to allow social workers into their home to investigate.

When the social workers arrived at the home later that night, they found that the allegations regarding the condition of the home were false. Not satisfied, the DCS representatives demanded that they be allowed to interrogate the children without any other person present. The parents offered to allow the children to speak to the social workers if their pastor, who was at their home, could be present. The social workers refused, however, and the next day, DCS filed another petition with the court.

This time DCS sought an order that would allow them to interrogate the children without anyone else present. The social workers didn’t plan on HSLDA’s ready opposition.

The night before, HSLDA had prepared a memorandum opposing the social workers’ request. We argued that sworn testimony or an affidavit had to be submitted to the court to establish “probable cause” that the Roemer children were indeed in need of services.

On June 2, the judge denied the social workers’ motion to interview the children. “The judge made it perfectly clear that the 4th Amendment applies to social worker investigations, and specifically to interviewing children,” said James Mason, HSLDA’s litigation attorney.

The court ruled that social worker investigations are bound by the same restrictions as criminal investigations, meaning that social workers do not have the authority to enter a home and demand interviews without a warrant establishing probable cause. Thanks to HSLDA’s intervention, this court was able to hold DCS accountable for its responsibility to the Roemer family’s 4th Amendment rights.

“Courts do not exist to simply rubberstamp a social worker’s request,” Mason noted. “This court took time to understand constitutional law as it applies in the context of social worker investigations.”

NEW YORK

HSLDA Sues School District over IDEA

Case: D Family v. Livonia Central School District
Filed: 10-8-04

Despite a victory in Missouri, where Home School Legal Defense Association successfully defended a homeschooling family from having to submit to unwanted special needs testing, the cause of homeschool freedom has hit a temporary roadblock in New York. In June, a New York state hearing officer ruled that another HSLDA member family, the Durhams,*

would be forced to submit to a special needs evaluation under the federal Individuals with Disabilities Education Act (IDEA).

The Durham family has been homeschooling for years due to their strong religious convictions, but their local school district is attempting to force their special needs son to submit to a public school evaluation. The Livonia Central School District claims that state law and IDEA require such an evaluation, even though the Durhams’ child has already been privately evaluated and the family desires no public school special needs services.

When the Durhams initially refused to let the school district evaluate their son, the district called a due process hearing in which the hearing officer ruled that the school district had a right to conduct an evaluation, overriding the Durhams’ objections.

HSLDA appealed the Durhams’ case to a state review officer in July 2005. While the appeal was pending, the United States Department of Justice submitted an amicus brief in support of HSLDA’s interpretation of IDEA, and the United States Court of Appeals for the Eighth Circuit unanimously ruled in Fitzgerald v. Camdenton R-III School District that “Congress intends that a district may not force an evaluation under the circumstances in this case. Where a home-schooled child’s parents refuse consent, privately educate the child, and expressly waive all benefits under the IDEA, an evaluation would have no purpose.”

The New York State Review Officer, however, ignored both the clear intent of Congress and the cogent reasoning of the Eighth Circuit, substituting his own opinion that federal law mandates an evaluation even if the parents object.

HSLDA has appealed this case to the next level by filing a lawsuit against the school district in the federal district court. We expect the court to side with the Eighth Circuit.

PENNSYLVANIA

Religious Freedom Battle Continues

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

After almost two years in federal district court, Home School Legal Defense Association is now facing a new front in the defense of the rights of six families who object to compliance with Pennsylvania’s restrictive home education law due to their sincere religious convictions. On May 25, 2006, the United States District Court for the Western District of Pennsylvania ruled that Pennsylvania’s homeschooling law does not impose a “substantial burden” on the families’ religious faith.

“The court’s opinion reflects a fundamental misunderstanding of claims made by the families,” said James Mason, HSLDA Litigation Attorney, who will take the lead for HSLDA in appealing the court’s decision.

The Pennsylvania home education law, Act 169, which was passed in 1988 following the HSLDA case Jeffery v. O’Donnell, is the most restrictive homeschool law in the United States. After the Pennsylvania Religious Freedom Protection Act was passed in 2003, numerous families sought exemption from Act 169 because they believed that God had given them full and exclusive authority for their children’s education. They believed that providing the documentation required by Act 169 to their school districts to review for “appropriate education” violated the jurisdictional boundaries between the state and the family.

While some school districts accepted the notices from families who had decided not to comply with Act 169 based on their religious convictions, several other districts initiated truancy proceedings and social service investigations. In defense of our members, HSLDA filed a total of six cases (later consolidated into one) in federal court, arguing that Act 169 violated the sincere religious convictions of each family involved. In December 2005, however, the court held in a preliminary ruling that the plaintiff families had not shown that the law imposed a substantial burden on their religious freedom.

The school districts HSLDA had sued then filed a motion for summary judgment, seeking to close the case and obtain a favorable final decision. Though HSLDA filed a point-by-point rebuttal of the December ruling, the court issued a final decision on May 25, 2006, affirming its previous ruling that the plaintiffs had not alleged a substantial burden.

“The district court decision discounts the very real religious convictions of these families,” said Mason. “We hope that the court of appeals will take a more thorough view of religious freedom than the lower court did.”

* Name changed to protect family's privacy.

Pending Cases

AL Coffee County Board of Education v. Mrs. B

AL In Re: F.M.

AZ L Family v. Administration for Children, Youth and Families

CA In Re: C Children

FL C Family v. Department of Veterans Affairs

IA Winkelman v. Department of Veterans Affairs

IN S Family v. Social Security Administration

MS C Family v. Social Security Administration

NY Sachem Central School District v. B Family

PA C Family v. Social Security Administration

RI F Family v. West Warwick Public Schools

Additional Pennsylvania RFPA Cases

Conestoga County School District v. N Family

Norwin School District v. B Family

Penn-Trafford School District v. B Family