Under the Microscope: What to do when the sheriff knocks?
Not often, but every year it still happens. An Idaho homeschool family has an investigator from the Department of Health and Welfare show up at the door.
The first reaction is typically horror. We all remember the stories about the families from 25 years ago whose children were placed in foster care and whose parents were sent to jail for teaching their children at home.
While those accounts are true, in reality under section 33-202 of Idaho's current laws, we have the freedom to set our own course rather than being required to emulate the public school system.
More importantly, the Idaho Department of Health and Welfare, in collaboration with representatives from ICHE, CHOIS, and HSLDA, has developed a set of protocols to be followed in investigating situations where it is claimed that a homeschooled child is not being properly educated. Those guidelines are printed on the pages adjoining this article.
From the homeschooler's perspective, the department's own Guidelines may be summarized as follows:
- Homeschooling is legal.
- Unless the accusation that initiated the investigation included "credible and sufficient detailed information" demonstrating educational neglect, no further inquiry is to be made.
- If there is such information, the family will be contacted and told the nature of the claim and the specific evidence that is believed to support it.
- The family will then be given an opportunity to rebut the information. They can do so by providing the investigator with, among other things, information about their curriculum, test scores, or lesson plans.
- If the family fails or refuses to provide such information, the investigator will direct the family to certain resources that are available to help with the child's education.
- If the family fails or refuses to take advantage of those resources, the investigator can then consider pursing the matter with the county prosecutor's office.
These guidelines represent a balanced and thoughtful approach to the subject. If followed, they will not jeopardize any homeschooling family unless there is genuine evidence of educational neglect. And where such evidence exists, before any penalties are applied, the family will first have appropriate opportunities to either disprove the accusation or remedy the deficiency.
Hopefully, the days of spiraling tensions during the investigation of such accusations are behind us. And in fairness to the health and welfare investigators, we should keep in mind that they operate on a caricature of homeschoolers as much as we operate on a caricature of them. That combination has historically produced some unfortunate outcomes where tensions were unnecessarily escalated.
As a precaution, each home schooling family in Idaho should make two copies of this article and the Health & Welfare guidelines on the adjoining pages and store them near the front door. In the unlikely event that your family is visited by a Health and Welfare investigator, this information should serve to remind everyone of the proper steps to be followed so that the investigation proceeds (and ends) in an appropriate manner. One of the copies of the state guidelines may be given to the investigator in the event that he or she doesn't have a copy. The family should keep the other to refer to during the initial conversation. If you haven't looked at the guidelines for a while, tell the investigator that you'll need a few minutes to read them over and refresh your recollection of them before answering his or her questions.
If you find yourself face-to-face with a Health and Welfare investigator (with or without a Sheriff's Deputy or Police Officer also present) and once you've re-read the guidelines, here are questions you should ask at the outset:
- Are you familiar with the department's Guidelines for the Assessment of Educational Neglect? (If not, provide the investigator with your extra copy)
- What is the specific accusation that you are investigating? (i.e., Educational neglect? Physical abuse? Other? See item 4 of Guidelines)
- Do you know the identity of the person who made the complaint? (If not, they should not have contacted you. Under item 1 of the Guidelines, the accusation should simply have been noted in their files with no investigation undertaken)
- What specifically is the "credible and sufficient detailed information that my child is not receiving instruction" that you believe exists? (Unless there is such information, the investigator has contacted you prematurely under item 4 of the Guidelines)
- What sorts of information would satisfy you that the accusation is unfounded? (Guidelines item 5)
- How much time will I have to provide you with information to disprove the accusation?
If they ask or demand to see and speak to your children, tell them they may not do so until after you have spoken with an attorney. Do not be dismayed if they threaten to get a court order allowing them to do so. Except in very unusual circumstances, that is a bluff intended to take advantage of your insecurities. But in any event, requiring them to go to the trouble of getting a court order will give you the time you need to find an attorney to intervene on your behalf.
In the highly unlikely event that they threaten to physically force their way into your home to see your children, tell them that you do not give them permission to do so. Tell them that, while you will not prevent them from doing so, you are first going to close the door without locking it. Then do just that. If they do open the door and come in, do nothing further to resist or impede their efforts, but do contact an attorney as soon as possible.
If the investigation has not been terminated in short order, the next question you will face is "who are the best attorneys to represent you?" On that one, there's no contest. The attorneys at Home School Legal Defense Association have been on the front lines of these battles for decades. They know how to negotiate for you appropriately and also how to draw the line where investigators are overstepping their bounds. HSLDA staff attorneys are available any time, day or night, to assist you if you are being investigated. But you will need to become a member before the investigator contacts you in order to take advantage of HSLDA's services.
So if you've not already done so, you should join HSLDA right away. You can do so on-line at www.HSLDA.org by clicking the "Join" tab at the top of the home page. And to receive a substantial discount on the cost of membership, under the Group Discount Information heading, enter the CHOIS group discount number (299536) in the box after you have indicated that you are a "member of a group that is part of HSLDA's Group Discount Program."
If you've joined HSLDA, as soon as you realize there is a Health and Welfare investigator at your door, you should ask them to wait for a few moments while you call HSLDA and get a staff attorney on the phone for you. You can then hand your phone out the door (with the speaker "on" if possible) so that your attorney can handle the situation from the start.
If you haven't joined HSLDA, you'll be forced to handle the situation on your own at the outset. The questions suggested, above, should prove helpful in narrowing the investigation and insuring that the investigator proceeds in the proper fashion.
The new Guidelines adopted by the Idaho Department of Health and Welfare should provide protections for innocent homeschooling families while still allowing any family that might be negligent in their children's education to be pursued appropriately.
Homeschooling families in Idaho are blessed to have leadership within the Department of Health and Welfare that has been willing to both listen to and honor our perspectives on this important subject. Idaho is the only state in the country where a cooperative collaboration has produced such fair and balanced Guidelines.
Barry Peters is an attorney in private practice with offices in Eagle, Idaho, and is one of the legal advisors for both ICHE and CHOIS. His law practice focuses on the areas of wills, trusts, probate, real estate contracts, and business formations.
Idaho Department of Health & Welfare:
Guidelines for the Assessment of Claims of Educational Neglect
To assess educational neglect, the following assessment process shall be followed:
- If a referent makes an allegation of educational neglect, stating the child is being home schooled, the intake social worker will explain to the referent that "home schooling" does not constitute an allegation of educational neglect. Parents have many choices regarding the method for educating their child as well as the type of instructional materials they can use. If home schooling is the only concern related to educational neglect, the referral will not be assigned for further assessment.
- The role of the intake social worker is to ask specific questions to determine why the referent has reason to believe that educational neglect is occurring. If the referent can supply credible and sufficient detailed information that a child is not receiving instruction in subjects commonly and usually taught in the public schools as is required by Idaho Code, section 33-202, the referral will be assigned a priority three response and a social worker will respond for further assessment. The intake social worker will ask the referent if they have collateral contacts that can offer additional information.
- If the referent does not provide credible and sufficient detailed information that is reasonable to believe educational neglect is occurring, the referral will be recorded as received, "information only." The referral will not be assigned for further assessment.
- If the referral has adequate information and is prioritized for a response, the social worker will contact the family to assess the concern. At initial contact, the parents will be informed of the reason and specifics of the referral, including the specific information which the social worker believes supports the referral.
- If the family provides refuting evidence (consisting of either curriculum, test scores, lesson plans, or description of educational efforts, etc.) or demonstrates that the information from the referral is not credible, the assessment will be closed and dispositioned as unsubstantiated. It is not the role of the social worker to evaluate the quality of the instructional materials selected by the child's parent or guardian, but to encourage parents to insure compliance with Idaho Code, section 33-202. .
- If the family fails or refuses to provide evidence that education is taking place, the social worker will provide the family with referrals to educational programs and resources as appropriate.
- The social worker will check with the family to see if they have taken advantage of the referrals to educational programs and resources.
- If the family does not access or implement referrals to educational programs, the social worker may contact the prosecuting attorney regarding possible court intervention.
Additional Perspectives From Home Educators:
- Home educators often follow unconventional courses of study, which result in a high quality education, but not necessarily on the same schedule or at the same rate as public schooled students.
- There is tremendous variation in the natural rate at which children learn. There are quick learners and slow learners in public, private, and home school. The mere fact that a homeschooled child seems to be at a different academic level than other children of his age is not reason to suspect "educational neglect."
- Some home educators do not use what would appear to be a standard curriculum, choosing instead to use whole books on topics that they are studying, which they have purchased or borrowed from a public library.
- Some home educators employ a teaching method that does not produce early competence in reading, but which will produce high reading ability in later years. Not reading at grade level, is not evidence of educational neglect.
- Children with learning disabilities would not necessarily be working at grade level whether they are in public, private or home school settings.
- Some home school families subtly integrate their instruction with their daily lives to such an extent that the children may scarcely be aware that they are being "schooled", even when they really are. A statement from a child, especially a younger child who is not a mature observer, that "my mom doesn't teach me anything," or similar statements, are not reason to suspect educational neglect.
- Home educators often follow unconventional schedules that don't follow public school start times, recess breaks, or vacations. There is no reason to suspect educational neglect merely because the children are not doing school work in lockstep with public school schedules.
- Sometimes relatives of a home school family oppose the family's decision to home school their children. When they cannot talk them out of homeschooling, sometimes they will report the family to child protective services hoping a social worker will "do something." Social workers should be sensitive to the possibility that, if the referent is a relative, the referent may be attempting to manipulate the social worker to assist them in their personal agenda to get the family to stop homeschooling. Social workers should avoid allowing themselves to be used as a pawn in a dispute of this nature among extended family members.
For further information please call:
Child Welfare Program Manager