LEGAL MEMORANDUM ON THE UNCONSTITUTIONALITY OF HOME VISITS

By Christopher J. Klicka

Certain school districts in various states have taken the liberty of imposing a “home visit” requirement on home schoolers. Home schoolers who refuse to allow home visits are “disapproved” and often charged with criminal truancy. Usually under a home visit requirement, a school official can visit a home school at any time, observe instruction in the home, inspect facilities, and demand certain changes.

These school districts which have home visit requirements are in states where the education statues do not mandate home visits. In other words, the various state legislatures have never delegated this authority to the school districts in the first place.

The purpose of this analysis is to establish that home visits should not be practiced in any state because they are inherently unconstitutional for four basic reasons.

I. HOME VISITS VIOLATE THE HOME SCHOOLERS’ PRIVACY AND FOURTH AMENDMENT RIGHTS

Home visits are a violation of the home school family’s right to privacy and their right to be free from the warrantless searches and seizures as guaranteed by the Fourth Amendment.

On August 7, 1986, in Kindstedt v. East Greenwich School Committee, State of Rhode Island, HSLDA won a case striking down the practice of home visits, setting precedent for the entire state. The Commissioner held in a written opinion,

It is our view that both the 4th Amendment and also the constitutionally derived right to privacy and autonomy which the U.S. Supreme Court has recognized, protect individuals from the unwanted and warrantless visits to the home by agents of the state.

(Kindstedt, p. 5, ft. nt. 12). Furthermore, he stated, “In view of the legal and constitutional considerations, we are unable to perceive any rationale whereby a home visitation requirement would be justifiable under the circumstances such as these.” (Kindstedt, p. 7).

It is clear that home visitation cannot be mandated by public school officials over parental objection. The privacy of the parents, family, and home is at stake. Such privacy  of the parents was protected by the U.S. Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1965).

A school official can only inspect a home schooler’s home if the family voluntarily allows them to come in or if the state official has a warrant or court order. Any home school family who does not want to voluntarily participate in home visits cannot be required to do so without violation their Fourth Amendment and privacy rights.

It is a fundamental principle of due process that if a government official comes into one’s home for the purpose of making a determination as to whether or not a criminal law is being complied with, then such an intrusion into the home is a search within the meaning of the Fourth Amendment. Since violation of the compulsory attendance law is a crime, a home visit by a public school official to determine compliance with the law is a violations of the home schooler’s Fourth Amendment rights.

It is obvious that one’s own home is a zone which creates a reasonable expectation of privacy and therefore warrantless searches thereof are ordinarily illegal. “Except under special circumstances, we have consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant.” Steagald v. United States, 451 U.S. 204, 211 (1981). It seems apparent that home visits are unconstitutional.

Most school district officials seem to treat their demand for a search of a person’s private home as an inconsequential request to which consent should be readily given. Fortunately, our founding fathers thought otherwise. One of the greatest American jurists, Justice Harlan, (the first), said in Boyd v. United States, 116 U.S. 616, 635 (1886):

Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that is is unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rules that constitutional provisions for the security of person and property should be liberally construed. A closed and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sounds than in substance.

It is proper to take constitutional offense at warrantless searches such as home visits. There is neither statutory authority or constitutional justification for the demand to yield to a few “inconsequential” searches.

II. HOME VISITS VIOLATE THE FIFTH AMENDMENT REQUIREMENT OF DUE PROCESS

During the last several years, four states, New York, Pennsylvania, South Carolina, and South Dakota, were engaging in home visits of home schools even though it was not specifically mandated by law. In all these states, the practice of home visits was abruptly discontinued by case precedent and subsequent legislation.

1. In New York, two county court decision, In the Matter of Dixon, No. N-37-86, Family Court of Oswego County, Nov. 21, 1988, and In the Matter of Standish, NO. N-125-86, Oswego County, Dec. 23,1988, both held home visits to be unconstitutional, In Dixon, the Court held:
   …this Court firmly believes that the insistence of the Hannibal Central School District authorities to effect the desired on-site inspection was arbitrary, unreasonable, unwarranted, and violative of the Respondents’ [home school parents] due process rights guaranteed under the Fifth Amendment of the Constitution of the U.S. The school district cannot expect to put itself in the position of conducting the inspection and then turning around and impartially or objectively determining whether the program subject to that inspection meets the required criteria for valid home instruction.Dixon, Slip Op. p. 5. Regarding protection from self-incrimination, the Court explained:The Respondents, further, cannot reasonably be put in a situation where they in effect are being forced to give evidence that might be used against them at a future date…

   Dixon, p. 5. The Court concluded that the home visit requirement is both “unconstitutional” and “unenforceable.” This reasoning of the decision was confirmed in In the Matter of Standish, supra.

   In order to cure the vagueness in the New York compulsory attendance law, the State Education Department issued “Regulation of the Commissioner of Education” for home schooling. The regulations give the local school boards no authority to conduct home visits (unless the home school is on probation), thereby ending the practice of routine home visits.

2. In Pennsylvania, at least one quarter of the 501 school districts were mandating home visits although not required by law. HSLDA, as a result, sued eleven school districts for violating the civil and constitutional rights of the home schoolers. The Federal Court ruled in our favor, Jeffery v.  O’Donnell, 702 F. Supp. 516 (M.D. PA 1988), and declared the law “unconstitutional for vagueness.” The legislature subsequently passed § 13-1327.1 which clearly ended the practice of home visits.
3. South Carolina also sought to impose home visits on homes schoolers even though not mandated in the law. On February 27, 1989, the Attorney General said such a practice of mandatory home visit was prohibited by the intent of law:

   Because the amendments do not expressly provide for an on-site visit and because the only reference to the site is the “description” of the place of instruction, a reasonable reading of the whole statute (Sutherland Statutory Construction, Volume 2A, sec. K6.05) indicated that the legislature’s intent was not ot authorize blanket requirements for on-site visits.

   OAG, p. 2. This option effectively ended the practice of home visits on home schoolers in South Carolina.

4. In South Dakota, HSLDA brought a federal civil rights case (Davis v. Newell School District, U.S. District Court, Western Division, January 20. 1993) challenging the state’s compulsory attendance law which allowed school district to require home visits of home school parents up to three times a year. This case served as a catalyst for the legislature to pass House Bill 1260 during the 1993 legislative session. This bill repealed the unconstitutional requirement of home visits. As a result, home schoolers in South Dakota no longer are subjected to home visits.

In conclusion, where home visits are not clearly mandated by law, local school district policies that have tried to impose such requirements are routinely found to be arbitrary, unconstitutional, and in several instances, based on unconstitutionally vague laws.

III. THE HOME VISIT REQUIREMENT VIOLATES THE FIRST AMENDMENT PROHIBITION OF ESTABLISHMENT OF RELIGION

The home visitation requirement violates the First Amendment prohibition of establishment of religion. Approximately 85-90% of home schoolers are operating home schools based on their religious convictions. In effect, these families are operating religious schools in their homes.

In Aguilar v. Felton, 87 L.Ed. 2d. 290 (1985), the U.S. Supreme Court held that the establishment clause bars the use of federal funds to send public school teachers and other professionals into religious schools to carry on instruction or to provide clinical and guidance services. The Court further ruled that use of state and federal aid to assist religious schools violated the establishment clause by creating an excessive entanglement of church and state, since the aid was provided in a pervasively sectarian environment.

In addition, the aid, which was in the form of public school teachers and professionals, required ongoing public inspection in order to insure the absence of a religious message. This inspection would require pervasive state presence in the religious schools who utilized the advice of these public school teachers. Justice Powell went so far as to say that such guidance by public school teachers in religious schools constituted direct state subsidy to those schools.

The Court specifically condemned the fact that “agents of the state must visit and inspect the religious school regularly.” 473 U.S., at 413. It also found unconstitutional that religious schools “must endure the ongoing presence of state personnel whose primary purpose is to monitor teachers and students…” Id.

Most local home visit provisions give the local public school system the right to come into the religious home school, review their religious instructional materials, discuss the families’ religious instructional program, and to observe the actual instruction. This service is provided with the use of state and federal money. Since many home schools are pervasively religious schools engaged in pervasively religious instruction, such home visits and their subsequent cost to the state, constitute excessive entanglement with the religious home schools.

In the sensitive area of First Amendment religious freedoms, the burden is on the school district to show that implementation of home visits will not ultimately infringe upon and entangle it in the affairs of a religion to an extent which the Constitution will not allow. Surinach, 605 F.2d 73, 75-76 (1st Cir. 1979). See also Committee for Public instruction, 444 U.S. at 646.

Furthermore, the home visits are not an end in themselves, but they are part of a regulatory scheme likely to lead official efforts to alter the operations of that religious school. In some instances, the home visit results are used to close down the home school. Such entanglement by the school district is excessive and severely condemned by the U.S. Court.

IV. HOME VISITS ARE NOT THE LEAST RESTRICTIVE MEANS OF FULFILLING THE STATE’S INTEREST IN EDUCATION

The requirement of home visits effectively denies a majority of parents their fundamental right to teach their own children which is guaranteed by the U.S. Constitution.

First of all, the Fourteenth Amendment guarantees all citizens the right to liberty. In a long line of cases, the U.S. Supreme Court has interpreted this right of liberty to include the concept of parental liberty. The u.S. Supreme Court and many state and federal courts have held that “parents have the fundamental right to direct the education and upbringing of their children.” (See Wisconsin v. Yoder, 406 U.S. 205,232 [1972], Pierce v. Society of Sisters, 268 U.S. 510, 534-35 [1925], Ohio v. Whisner, 351 N.E. 2d 750 [1976], Ellis v. O’Hara, [1985, E.D. Mo.], 612 F. Supp. 379, 380-381, Mazenac v. Judson-San Pierre School Corp., 614 F. Supp. 1152 [1985]).

This fundamental right to teach their children is guaranteed because they are parents — not because they have been specifically “approved” by a local school official during a home visit.

Secondly, the First Amendment guarantees all citizens and families the right to freely exercise their religious beliefs. For at least 85-90% of all home schoolers, they must home school in order to be faithful to their religious convictions. These families believe they have been called by God to personally teach their own children, applying God’s Word to every subject. They believe they cannot delegate this authority to either a public or private school because they would be violating God’s command.

All home schoolers who are home schooling for religious reasons, therefore, are prohibited from exercising their First Amendment rights by the requirement of a home visit. Their religious convictions will not allow them to be visited in their home by a public school official.  

All the above First Amendment claims demand the application of the well-known compelling interest test established by the U.S. Supreme Court in Sherbert v. Verner, 374 U.S. 398 (1963). This test has been applied again and again by court throughout the country. This test has four burdens — two burdens which must be met by the parents and two which must be met by the state.

First, the family must prove their religious beliefs are sincere.

Secondly, the family must prove that the state’s action (home visit requirements) burdens their free exercise of their convictions.

Then the burden shifts. The state, or in this instance, the State Board of Education or local school district, must prove two burdens:

1. It must prove that its home visit regulation is “essential” or “necessary” to fulfill its compelling interest in education. U.S. v. Lee, 455 U.S. 252, 257-259 (1982) and Windmar v. Vincent, 454 U.S. 263, 270 (1981). The interest of the State has been defined by the U.S. Supreme Court as being: children will be able to read and write in order to participate in our political system and that the children will become self-sufficient. Yoder, supra, at 221.The courts are clear: the State cannot merely assert a claim that its regulations achieve a compelling interest that justifies the violations of the family’s constitutional rights. Rather, the State (or local district) must prove with evidence that its requirements of a home visit achieve its interest that children are literate.More specifically, the State must present proof that the practice of home visitation has an effect one way or another on the home school student’s academic achievement. The State must present such proof before it can justify the violation of the fundamental constitutional right of the parents by the requirement of home visitation.

   Until the State can present some hard statistics as to the necessity for home visits, this requirement will not be held compelling by the courts.

2. The second burden the State must prove, (if it is able to prove the first burden), is that its home visit requirements are the least restrictive means for fulfilling its interest that children are literate. Thirty-two states have recently passed specific home school laws which have no home visit requirements.

As long as a less restrictive means exists in any state to meet state interest in knowing home schooled children will be literate, mandatory home visits cannot stand constitutional scrutiny.lii