The Home School Court Report
VOLUME XV, NUMBER 5
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SEPTEMBER / OCTOBER 1999
Cover
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Cover Story
Ninth Circuit Upholds Family Privacy and Parental Authority

Special Features
United We Stand

Two from Washington

National Center Reports
Children Tax ID Act Moves Forward

President Vetoes Tax Relief

Navy Fills Quota

Home Educated Athletes

Across the States
State by State

Regular Features
Press Clippings

Active Cases

Prayer and Praise

President’s Page

L  I  T  I  G  A  T  I  O  N     R  E  P  O  R  T
Active Cases

Berry v. Rock
Filed Oct. 22, 1998

Kentucky
Judge Upholds Probable Cause for CPS Warrants

Armed with allegations of excessive spanking, a Larue County Child Protective Services (CPS) worker was determined to privately interview Mike and Coleen Berry’s children. Kentucky law does not require a private interview, but permits social workers to petition the court for an order to gain access to the children. Mr. and Mrs. Berry were willing to be interviewed and offered to present their children for observation by the CPS worker. She insisted, however, on private interviews. The Berrys refused.

When the CPS worker called to file her petition, the county attorney took matters into his own hands. He told the social worker that she need not file a petition. He would “take care of it another way.”

Without probable cause supported by oath or affirmation as required by the United States and Kentucky Constitutions, county attorney Danny Rock and Juvenile Court Judge James Bondurant conspired to issue a court order requiring the interview and physical examination of the Berry children outside the presence of their parents. Attorney Rock had not even been told what the particular allegations were against the Berrys. The social worker never testified or signed an affidavit of any kind. Nevertheless, within hours of the CPS phone call to attorney Rock, the sheriff and CPS worker were at the Berrys’ door demanding entry.

Because the officials had a court order, no protection was available to the Berrys. The CPS worker was ushered inside, where she interviewed each of the three primary-school-age children alone. No evidence was discovered to substantiate the allegations and the case was closed. But the Berrys’ fright and shock at this illegal seizure of their children in their home sent the family recoiling to a friend’s house for several days.

A civil rights lawsuit was filed October 22, 1998, alleging Fourth Amendment and Kentucky law violations. HSLDA settled the case versus the judge with a court order stating that search warrants in CPS cases require a finding of probable cause upon oath or affirmation.

However, the trial court recently dismissed the case against the prosecutor. Without ruling upon the legality of the prosecutor’s actions, the court held that he is entitled to absolute immunity because he was acting as an advocate, not an investigator, when he requested the entry order from the judge. In spite of this dismissal, HSLDA is confident that this prosecutor, and others who learn of the case, will not again flout the Constitution in this manner.

State v. Cutchin
Filed May 20, 1999

South Dakota
Birth Certificate Filing Dispute Leads to Prosecution

Mr. and Mrs. Cutchins are being criminally prosecuted in the Fall River school district for their failure “to provide the school with a certified copy of such child’s birth certificate.” It is the position of the Cutchins that their decision to maintain the birth certificate at the school the child attends (their home), rather than providing the certificate to a school the child does not attend, is in compliance with the law.

In addition to arguing that the Cutchins’ decision is consistent with South Dakota law, HSLDA contends that the statute is unconstitutionally vague. The meaning of the term “school” in the South Dakota birth certificate statute has been debated by home schoolers and officials ever since it was enacted.

At trial on August 11, Judge Pahlke explained that her experiences with home schooling makes her unable to hear the case. Apparently, in the judge’s opinion, her nieces have been home schooled to their detriment. Following the judge’s recusal, the state’s attorney and HSLDA attorney David Gordon were able to reach agreement on all pertinent facts, which will be presented to the substitute judge in writing. The testimony of HSLDA’s witness, South Dakota Alternative Instruction Programs President Carroll Torberson, was taken by deposition. Now the case awaits scheduling of oral arguments.

P E N D I N G   C A S E S

California

Harrahill v. City of Monrovia
Filed: April 28, 1997, Los Angeles County.

Nature of Case: Five families challenged the constitutionality of the city’s daytime curfew ordinance.

Ruling: January 27, 1999, by Los Angeles County Superior Court Judge Carolyn Kuhl. The city’s daytime curfew ordinance contradicts state law and is, therefore, unconstitutional.

Status: On appeal. The city of Monrovia contends that the trial judge should have reconsidered her ruling in light of the amended, and in their opinion, constitutional ordinance. HSLDA will demonstrate on appeal that even the amended ordinance exceeds the authority of the city council and is preempted by state law.

Taylor v. O’Keefe
Filed: May 2, 1997, Central District of CA.

Nature of Case: Social worker and police officers coerced entry into the family’s home. Social worker proceeded to interview children using questions that violated the children’s innocence. Taylors sued social worker and police officers for violation of civil rights.

Ruling: Judge granted defendants’ motion for summary judgment on May 28, 1999, holding that the law for social worker entry into homes is not clearly established.

Status: In light of the recent Calabretta decision holding exactly the opposite (which is binding authority on the Taylor court), we filed a motion for reconsideration on September 20, 1999.

District of Columbia

New v. Perry
Filed: January 16, 1996 (writ of habeas corpus), District of Columbia.

Nature of Case: A United States soldier who was ordered to put on United Nations uniform and to become part of UN force refused to do so, citing the unconstitutionality of U.S. soldiers donning the uniform of and fighting for a foreign government. The soldier was court-martialed.

Ruling: On November 25, 1997, the DC Circuit Court of Appeals refused to hear the case in federal court, requiring New to first exhaust his military appeals. U.S. Supreme Court denied certiorari.

Status: The case is still being appealed in the military court system.

Nevada

Hooks v. Clark County School District
Filed: January 9, 1998, District of Nevada.

Nature of Case: Home schooled child denied special education services despite federal law requiring provision of such services to “all students.” The family sued to obtain services.

Ruling: On October 23, 1998, a federal district court judge ruled that home school students in Nevada are not entitled to such services.

Status: The case is on appeal to the Ninth Circuit Court of Appeals. Our brief was filed on March 11, 1999. Oral argument has not yet been scheduled.

Note: The Nevada legislature recently changed its law to specifically allow home school students to receive special education services.

New Jersey

Forstrom v. Fair Lawn School District
Filed: February 5, 1998, Bergen County.

Nature of Case: The Forstrom’s son was denied special education services despite federal law requiring provision of such services to “all students.” The family sued to obtain services.

Ruling: On May 3, 1999, Judge Isabel Stark denied the defendant’s motion to dismiss.

Status: The case was argued on cross-motions for summary judgment before Judge Stark on September 10, 1999. We are awaiting Judge Stark’s decision.

West Virginia

State v. Ratliff
Filed: May 10, 1999, Nicholas County.

Nature of Case: The Ratliffs were prosecuted for failure to have their child attend school because the parents’ education credentials did not satisfy the school district.

Status: The Ratliffs have moved to Indiana. We are waiting for the prosecutor to drop the charges.