The Washington Times
January 22, 2007

Washington Times Op-ed—Fourth Amendment a Learning Tool

by J. Michael Smith
HSLDA President

When the Home School Legal Defense Association was established in 1983, very few states had laws recognizing a right to homeschooling.

We asserted that the constitutional right of parents to direct the upbringing and the education of their children encompassed the right to homeschooling. For religious parents, we asserted that the free exercise of religion guaranteed by the First Amendment gave them the right to provide a religious education at home.

Ultimately, more than 30 states passed legislation recognizing this fundamental right.

There is another constitutional right that some homeschoolers have had to become familiar with: the Fourth Amendment right to be secure in our homes and on our person against unreasonable searches and seizures by government officials.

One application of the Fourth Amendment for homeschoolers came about when school officials in Massachusetts, as part of approving a homeschool family’s right to homeschooling, asserted that the school district should have the authority to make unannounced visits to the home to determine that the family was legitimately teaching the children at home.

In 1998, the Supreme Judicial Court of Massachusetts ruled that the Fourth Amendment protected the family from unwarranted intrusion into their home by school officials. The court ruled that absent consent by the family, the school district was not entitled to enter the family’s home. Further, the court ruled that the school district’s approval of the homeschooling proposal must not be conditioned on an agreement to consent to home visits.

The Fourth Amendment comes up in another context that homeschoolers uniquely address, and it occurs in the course of an investigation regarding suspected abuse and/or neglect of a child. Generally, when police officers or social workers receive an allegation of neglect or abuse, the first action on the part of the government official is to attempt to contact the child.

Since approximately 90 percent of all school-age children are enrolled in public schools, the logical place to contact the child is at his or her school. States generally allow police officers and social workers to contact children enrolled in public schools without consent from parents or guardians.

Some states require that school personnel be present, or at least the child has that option during the interview. The social worker or police officer will then determine whether any contact with the parents is necessary.

Since most state policies require child-protective services workers to make contact with the child, that contact with the homeschooling family will generally be initiated at the home.

The initial legal issue when entrance is demanded to interview the child or inspect the home is whether the Fourth Amendment applies to this type of government activity.

In 1999, in the case of Calabretta v. Yolo County Department of Social Services, the U.S. Circuit Court for the Ninth District unanimously affirmed a lower-court decision finding that the Fourth Amendment applies to a child-abuse investigation. This is an important protection in light of the fact that, according to the U.S. Department of Health and Human Services, only 20 percent of child-abuse reports in 2004 were substantiated.

This means when government officials are investigating an allegation of abuse or neglect and they do not obtain consent to enter the home, they generally have to apply to the court to obtain an order to enter the home. That order must be based upon probable cause (reliable evidence) and supported by an oath or affirmation as to the facts.

An exception to the court order or warrant requirement is the “exigent circumstance” exception. If police have probable cause to believe that the child is in imminent danger, they may enter without consent or a court order.

Our forefathers had great wisdom in enacting the Fourth Amendment. It provides protection from unlawful attempts to gain entry into homes by government officials. It is one of the hallmarks of a free society where a man’s home is his castle.

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.

 Other Resources

Family Times Column