The Washington Times
July 17, 2006

Washington Times Op-ed—Courts Back Families on Searches

by J. Michael Smith
HSLDA President

Recently, a homeschooling family had this experience with government officials. A 15-year-old homeschooled boy went to a police station and complained about his adoptive parents. The police and social services interviewed the boy about the restrictions his parents placed on him, including not being able to have a cell phone or a truck, and denying his request to attend public school.

In the end, all parties, including the boy, recognized that no crimes had been committed and that the matter should be dropped.

Unfortunately, it did not end here. An attorney for social services decided the investigation had to be completed, which included a search of the family’s home, and further questioning regarding the family’s beliefs and lifestyle.

The Home School Legal Defense Association intervened, and within 24 hours provided a recent ruling from the Superior Court that required social services be able to show probable cause for the searches and interviews to take place. In other words, there had to be some credible evidence of abuse or neglect before such an action could take place. The investigation was then terminated.

This type of situation is all too common. HSLDA regularly defends families when government officials overstep their bounds. The actions by school officials to make home visits to evaluate home education had a chilling effect on homeschooling in the early days. HSLDA, on behalf of homeschooling families nationwide, opposed this practice because it is a clear violation of the Fourth Amendment, which protects against unreasonable searches and seizures by government officials. Many homeschooling families experienced this form of harassment from government officials over their choice of education.

The earliest and most prominent victory in this area was the Pustell case in Massachusetts, which was decided unanimously by the Massachusetts Supreme Court in favor of the Pustells in 1999. The Pustells, a homeschooling family, prevailed when they stood on their Fourth Amendment right to prevent school officials from entering their home uninvited. Home visits were ruled unconstitutional.

Despite this victory, homeschoolers continue to experience investigations for abuse and neglect. Anyone can report that children are not in school, and in some states this is sufficient to trigger an educational neglect investigation. Some social services workers are suspicious of homeschooling families because the choice to homeschool is made by a small minority and the reasons for the choice may not respected by the social worker.

HSLDA has challenged various state laws since 1983, and the legal landscape has changed. Homeschoolers have been able to gain significant victories in the courts. Once a higher court has ruled to uphold Fourth Amendment protection, the lower courts in that state are bound by the ruling. But sometimes the settlement of a case outside of litigation can result in a favorable decision as well.

This happened recently in one Southwest state where the policy was changed to recognize the application of the Fourth Amendment to abuse and neglect investigations as a result of a lawsuit against the Department of Social Services that was settled out of court.

As a result of the work of the HSLDA and others, social workers, government officials and local courts are recognizing the right of families to be secure in their homes against unreasonable searches and seizures. There is still much work to do, but progress is being made and the attitudes and approach of social service agencies across the country slowly is changing for the better.

Michael Smith is the president of the Home School Legal Defense Association. He may be contacted at (540)338-5600; or send email to media@hslda.org.

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