Several weeks ago I was going to speak at an Indiana home school conference.
Due to the coronavirus, the conference didn’t happen, but since I couldn’t share this with the attendees in person, I want to take this opportunity to share with you a few of the reasons why I fight for parental rights, and what that fight looks like for all of us today.
This country is facing the question of our age: whether children are better served when fit parents raise, nurture, and educate them. We at ParentalRights.org firmly believe that the answer is yes, they are.
Sadly, we’ve all seen how this basic understanding is being slowly eroded.
It’s a long-standing truth, but it is challenged every day. That’s why we’re both fighting bills that threaten your rights and working on positive legislation to protect American families on the state, national, and international levels.
Our goal is that parental rights will be protected as we continue to move forward with the Parental Rights Amendment, the long-term project that would help protect Americans against unnecessary intrusion and tragedy.
We think that the common sense reforms I mention below, and others, will result in less trauma to children and will free up child welfare workers to focus where they are really needed.
We believe that children are best served when fit parents have great liberty to raise, nurture, and educate them. But we have a lot of work to do, and I welcome your support.
Watch the full message here.
Do you believe that children are better served when fit parents have great liberty to raise, nurture, and educate them? Or do think children are better off when the judgments of loving parents are influenced, modified, and sometimes replaced by state-appointed experts, who believe they are acting in the best interests of your child?
That is the question of our age, as more and more of the zone traditionally left to the decision-making of fit parents is intruded upon by an ever-growing state mechanism that thinks it knows best and by cultural changes that increasingly put pressure on the traditional understanding of the role of parents in the lives of their children.
I’m Jim Mason, Vice President of Home School Legal Defense Association and President of Parentalrights.org. And I answer this question—we answer this question—that we believe that children thrive best when loving parents are free to make decisions in the best interests of their children without undue interference from the state. We agree with the United States Court of Appeals for the Ninth Circuit, which said in one of our early cases:
“The government’s interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.”
Notice that the Court said that children have an interest in the authority of their parents that the state should protect.
Because we perceived that this traditional understanding has been slowly eroding over time we have been working towards amending the US Constitution to include a parental rights amendment, to put the traditionally understood fundamental right into the text of the Constitution in black and white.
Amending the US Constitution is a marathon broken into two-year sprints. Each new Congress we must find a sponsor in the House and the Senate; the resolution must be supported by 2/3 of both houses during that single two year Congress; then ratified by 3/4 of the state legislatures, in a time usually included in the Congressional resolution, often 7 years.
Constitutional amendments are hard to pass. The first effort to pass an Equal Rights Amendment began in 1921. It finally passed Congress in 1972, a month before President Nixon’s friends broke into the Watergate. Then it fell short of ratification in the states—maybe. The original resolution put a 7 year deadline on ratification. That deadline was adopted by 2/3 of each house. As the deadline approached, a simple majority in each house passed a resolution to extend the deadline an additional three years. Those additional three years elapsed without reaching the magic number of state ratifications.
But the ERA is back in the news as the newly minted Virginia General Assembly earlier this year became the 38th state to vote to ratify it, which would be three-fourths of states if Virginia’s vote is valid—and other moving parts are also valid.
But this vote was well after both the first and the putative second deadline have passed. What’s more, in the ensuing years, 5 states that at first ratified the ERA have rescinded their ratification—if they legally can. Proponents of the ERA say that once a state has ratified the amendment it can’t change its mind, and that the deadlines are not exactly deadlines—they’re more of what you’d call “guidelines” than actual rules, as Captain Barbossa might say. Almost a hundred years in the making and much Con-law mayhem is about to ensue, in the courts, in state legislatures, and in talking head land.
Our founder Mike Farris’s original idea for forming Parentalrights.org in 2006 was to pass a parental rights amendment quickly, before society had moved too far away from a traditional understanding of the role of parents in the lives of children, and to prevent further erosion and growing state intrusions between parents and children.
There was a template for this. Although the idea of lowering the voting age from 21 to 18 had been around since 1941, the Vietnam War became a catalyst. After the Supreme Court held in 1970 that a federal statute lowering the voting age was unconstitutional as applied to state elections, President Nixon asked Congress to amend the US Constitution. Congress sent the 26th Amendment to the states on March 23, 1971 and it was ratified by the states on July 1, 1971.
But that didn’t happen with the parental rights amendment, so we are in it for the long haul, confident that as the need becomes clear to more and more people it will gain traction in Congress. Remember, this is a marathon broken into two-year sprints. Once upon a time I completed the Portland marathon—I won’t say I ran the Portland marathon—but I did complete it. I can attest that completing a marathon is not something most people decide to do one day then go out and do the next day. It requires daily discipline over a long period of time. I ran over a thousand miles the year I did the marathon, each week extending my long run by about ten percent over the previous week, until my weekly long run became 17 miles then 18 miles and so on.
The supporters of the ERA have been at it for a hundred years and they haven’t given up—and neither will we.
But in the meantime there is other important and useful work that we are doing and that we need your support in doing.
Criminal justice reform has been much in the news lately. I’m here to talk to you about another kind of related reform that is much needed but is not talked about very much. This country’s child protective services are in great need of reform because the way they operate today needlessly harms many children in pursuit of the noble goal of protecting children.
So I’m here today to explain why we at Parentalrights.org and Parental Rights Foundation have taken up the issue of reforming the way child welfare investigations are conducted. With a few commonsense reforms we could reduce needless harm to millions of children and their parents each year while allowing child-welfare investigators to devote their limited resources more efficiently to the children who are truly in need.
I wear two hats—one, as Vice President of Home School Legal Defense Association, which is a national nonprofit organization whose mission is to protect the fundamental constitutional right of parents to direct the education of their children. With over 80,000 member families in fifty states, HSLDA is the world’s largest homeschool advocacy organization.
Parentalrights.org and the Parental Rights Foundation were born out of the experience HSLDA gained helping homeschooling families, realizing that other children and parents also need help. In the early days of the modern homeschooling movement, we discovered that child-welfare investigators routinely avoid interacting with parents at the beginning of an investigation by going to the child’s school or pre-school to interview and physically examine the child without parental knowledge or consent. But because homeschooled children are at home when they are at school, child-welfare investigators could not routinely avoid parents.
This led to many distressing encounters at the front door of homeschooling family’s homes, often simply because they homeschooled at a time when it was not as accepted as it is today. Often the allegations would be something like this, “There’s a really religious family on my street and the kids are always at home during school hours.”
It was HSLDA’s position then, as it is now, that child-welfare investigators have a difficult and often thankless job in protecting children from abuse and neglect, but the government also has an important interest, as I mentioned earlier, in protecting the interests of children in the privacy and dignity of their homes and in the lawfully-exercised authority of their parents—especially while investigating allegations of abuse or neglect.
From its founding in 1983, HSLDA has assisted thousands of families in protecting those interests during these encounters, often commenced in response to anonymous or malicious hotline tips that later prove to be unfounded. HSLDA was lead counsel in Calabretta v. Floyd, in which the Ninth Circuit case I quoted from earlier, held that the nonconsensual entry into the home and subsequent strip search of the children violated the Fourth Amendment rights of that homeschooling family.
In North Carolina and Pennsylvania, we defended families in investigations that led to statewide appellate court decisions that reinforced that child-welfare investigations are subject to the Fourth Amendment, which many CPS investigators disagree with or ignore in the name of “the children.”
HSLDA is currently representing a homeschooling mother in Kentucky. The investigator was responding to a non-emergency report that the mom had left her children in the car for less than ten minutes the day before while she ran into Cobbler’s Café to buy the kids some muffins on the way to karate practice. The children were never in danger, no harm came to them, and in any event, the allegation had nothing to do with the condition of the home or physical abuse that would justify looking for signs of physical injury. And it was not illegal in Kentucky for parents to leave their children unattended in a safe and responsible manner (although this is one of those cultural shifts that has recently occurred. It is far more common today for members of the public to second-guess the decisions parents make and then make a hotline call, apparently oblivious to what they will be unleashing on an innocent family).
The Kentucky child-welfare investigator bullied her way into the home with an armed police officer, without a warrant or consent, by threatening to take the kids into foster care. The investigator then strip searched all six kids, euphemistically calling it a “body check.” After the investigation was closed as unfounded, the investigator referred to it as “an oopsie-daisy.”
To vindicate the family and hopefully set a precedent that will change things for the better for all families, we sued the investigator—which we like to think of as her oopsie-daisy. We are waiting for the judge to rule on the CPS investigator’s motion to throw the case out of court.
At her deposition the investigator said, “This is what I always do.” And her testimony is consistent with our experience all over the country.
Because homeschooling depends on the recognition of the right of all parents to direct the education of their children, the abuses we discovered on behalf of homeschoolers led us to start the sister organization to advocate for all parents.
Parental Rights Foundation is concerned about the erosion of the legal protection of parents to raise, nurture, and educate their children without undue state interference, and about the unfortunate, unintended consequences to innocent children caused by the routine overreach of the child-welfare system. We seek to protect children by educating those in government and the public about the need to roll back some of the intrusive state mechanisms that have worked to harm more children than they help.
In her seminal article on the effect of child-welfare investigations, Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment, (2005), Duke University law professor, Doriane Coleman, said, “The investigations undermine the fundamental values of privacy, dignity, personal security, and mobility that are protected by the Fourth Amendment.”
Often the only recourse for families wrongly treated is to sue for federal civil rights violations. But the doctrine of qualified immunity shields many state actors from ever being held responsible. That doctrine is designed to protect law enforcement and others from being held liable for money damages when they must make split-second decisions in the field, often life and death decisions. But the doctrine has been expanded by the courts so far that it has become increasingly difficult to establish when public officials violate a family’s constitutional rights.
Much research shows that the state, in its effort to investigate child abuse and neglect, can often cause more harm than good. As Professor Coleman wrote, “The majority of intrusions on family privacy do not directly benefit the children involved, and in many instances actually cause them demonstrable harm.” More recently, Professor Teri Dobbins Baxter wrote, “Research has shown that investigations, particularly those that are unnecessarily intrusive or that separate children from their caregivers, can be traumatic and psychologically harmful to the children as well as damaging to the family as a whole.”
Another law professor wrote that, “children, of course, have a strong interest in being free from abuse. But they also have a strong interest in being free from intrusive, traumatic questioning by strangers.”
Millions of child-welfare investigations are conducted every year, and the vast majority of these investigations, roughly 80 percent, end with a finding that the children were not victims.
The numbers are staggering. In 2002, according to HHS reports, there were approximately 1.8 million child-welfare investigations nationwide. Only twenty-eight percent of the children “were ultimately found to be victims of abuse or neglect.” Coleman, supra at 417. More recent numbers are even more sobering. According to HHS statistics from 2016, 4 million children, nearly double the 2002 numbers, were investigated, and fewer than 20% were actual victims.
In other words, for every family investigated and found to be neglectful or abusive, four other families are disrupted by an investigation that finds no victim.
And many of those in the 20% who were determined to be neglectful never get a day in court—they are instead placed on a central child abuse registry, where their name comes up in background checks for jobs like teaching, for security clearances, for adoption, for volunteering to teach Sunday school or coach rec-league soccer. In most states, parents are put on the central register based on the judgment of a local child-welfare office and must go through an administrative appeal to protest that determination and be removed from the registry.
“Perhaps even more of these investigations should close without findings of abuse or neglect. The United States Court of Appeals for the Second Circuit has described administrative findings of abuse or neglect as “at best imperfect,” noting that three-quarters of administrative challenges succeed in reversing such findings.” Gupta-Kagan, supra at 362.
My office has handled 8 administrative appeals in the last two years, mostly involving paperwork disputes in the homeschool setting—All 8 were successful in getting the parent off the central registry.
Reforms we would like to see:
First: Adopt into state-law that Fourth Amendment protections—and state constitutional equivalents—apply to child-welfare investigations.
Why? Child Welfare Investigators and supporting law enforcement officers incorrectly believe that the Fourth Amendment does not apply to child-welfare investigations, causing much disruption and harm to innocent families in their own homes—the place the Supreme Court says is most protected and where children need to feel the most safe and secure.
Second: Do not investigate based on uncorroborated anonymous reports—instead require reporters to leave verifiable contact information that will remain confidential unless later determined to be knowingly false or malicious. This should significantly reduce the number of false reports.
Why? Anonymous reports are notoriously unreliable and can be easily weaponized. They are often exploited during divorce and child custody disputes.
A judge of my acquaintance recently had his life turned upside down when a criminal defendant made an anonymous report about his son. The report was scurrilous and implausible on its face. Nevertheless, the day after the judge made an unfavorable ruling against the defendant, his son was pulled out of class at school, questioned by a CPS investigator without his parents knowledge or consent. The boy feared that something bad had happened to his parents or that he must have done something wrong. The first time his parents knew anything about it was when the school called and asked them to pick the boy up because he was so traumatized—that’s the judge’s word—that he could not continue with the school day. The investigator then came to the judge’s home and demanded to see where the boy slept and that there was food in the refrigerator, which is what they almost always want to do.
Our HSLDA attorneys help people in these circumstances all the time. Anonymous reports must go!
Third: Make it clear that investigators may terminate an investigation immediately once they determine the report is false.
An after-hours call I handled a few years ago aptly illustrates the point. A homeschool mom in Virginia said a CPS investigator was at her door demanding to come in and interview her children based on a report that she frequently left her toddlers unattended by the pool in the back yard.
“But Mr. Mason,” she said, “There’s two things wrong with this. First, my children are all teenagers.”
“What’s the second thing?” I asked.
“Well,” she said more calmly than I would have, “I don’t have a swimming pool.”
Forgetting momentarily that I was in CPS investigator-land, I for a moment thought that common sense would prevail. I told our member to take the investigator to the backyard and show him that there was no swimming pool. Then I spoke to him:
“As I am sure you will agree,” I began, certain that my unassailable logic and commonsense would prevail, “the anonymous report is false. There is no swimming pool to leave anyone unattended beside, even if she had toddlers, which she doesn’t.”
As if speaking to a young child, the investigator explained, “It doesn’t really matter that there is no pool. I have started an investigation and I cannot leave until I complete it. I still need to look inside the home and interview the children privately.’
It then became a whole thing. Imagine how much more sense it would make for the investigator to be freed up to acknowledge that the tip was false and then go about his business—HELPING children who were really in need. Our attorneys handle this kind of call regularly.
Fourth: Require notice and opportunity to be heard in an administrative hearing BEFORE being placed on the central register rather than having to fight to get taken off the register.
Following the notorious case of Penn State Coach Jerry Sandusky, Pennsylvania reformed its child-welfare laws in the opposite direction. A few years later a state auditor found that this led to worse rather than better results. More needless investigations led to worker burnout, caused needless distress to more children and parents, and caused actual needy children to fall through the cracks.
We think that the common sense reforms I mentioned, and others, consistent with constitutional rights, will result in less harm to many children and will free up child-welfare workers to focus where they are really needed.
We’re working with a bipartisan coalition to fashion model state legislation to achieve these goals. One of the model bills we worked on together has been introduced in Colorado.
Another thing we’re watching very closely is the re-emergence of the United Nations Convention on the Rights of the Child (UNCRC).
Some bad ideas just refuse to die. After lying dormant for several years, the UN Convention on the Rights of the Child has once again entered the spotlight via a newly introduced resolution in the US House of Representatives.
On November 20, 1989, the CRC was proposed. By September of the next year, 20 countries had signed it, the threshold needed to bring the treaty into force. Since then, 196 other nations have also signed it.
In 1995, Secretary of State Madeline Albright signed the treaty on behalf of the US, but it was never ratified by the Senate. As of 2020, the US remains the sole country to not have ratified the CRC.
And we are working to keep it that way. We know that children do best when parents are free to make the most beneficial choice for their kids. Parents don’t need an unelected bureaucrat in a faraway land to tell them what’s best for their child. Yet empowering officials to overrule parents is exactly what the CRC does.
One of the main tenets advanced by the CRC is that the government should make decisions based on the “best interest of the child” in all cases. In the United States, this principle has traditionally been used only in cases where parents have been determined to be unfit, thus allowing judges to make major decisions on behalf of children.
But under this international treaty, the application of “best interests” could be broadened to include cases involving fit parents. Under the CRC, this benign-sounding language could be used by courts and child-welfare agencies to usurp the rights of parents, to the detriment of their children. It would grant authorities in the US the power to determine if a parent’s decision regarding education or religion is in the child’s best interest or not.
According to international law expert Geraldine Van Bueren, the leading scholar on the CRC, “‘best interests’ provides decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents, providing it is based on considerations of the best interests of the child. Thus, the convention challenges the concept that family life is always in the best interests of children and that parents are always capable of deciding what is best for children.”
Fit parents should always have the right to make fundamental decisions for their children, particularly regarding education and religion. But the CRC would undermine that right.
In the early years of the fight against the CRC, HSLDA opposed it out of concern that it could be used to restrict homeschooling.
We know now those concerns were well-founded. A number of nations, including England, Northern Ireland, and Sweden, have proposed or imposed regulations that curb the freedom to homeschool, all in the name of the CRC. Other countries, such as Botswana, have handed down negative court rulings or harassed homeschool families under the CRC’s authority.
To some, the fact that the US has still not ratified the treaty is appalling and unacceptable. Representative Ilhan Omar stated in her press release regarding the resolution that “protecting the rights of children is fundamental, and we should be a world leader on this issue, which we can’t be unless we’re a state party to the convention.”
But ratifying the CRC in the US would have zero impact on children in other parts of the world. Instead, it would override many existing American laws on children, dismantling the protections families enjoy today. Currently, family and education laws are created by the states; ratification of the CRC would transfer jurisdiction of those laws to the US Congress. Congress, in turn, would have to follow the mandates of the CRC.
As a House resolution that merely calls on the Senate to ratify the treaty, which ain’t gonna happen this year, HR 854 would substantively do very little. However, the CRC is an ever-present threat. Because the US has signed the treaty, the next step, Senate ratification, can happen at any time—it’s simply a matter of changing the Senate into one that supports the treaty by 2/3 majority.
That’s why, if members of Congress want to once again extoll the virtues of the CRC, we will remind them why ratification should never take place. Not if they truly care about the well-being of American children.
While passing an amendment to the US Constitution is not likely to happen quickly, we need nevertheless to work to preserve the traditional role parents play in the lives of their children. We see this being challenged every day in a host of ways. That’s why we’re working on model legislation, in alliance with a broad coalition, and why we continue to monitor Congress and the UN.
I began by asking if you believe that children are better served when fit parents have great liberty to raise, nurture, and educate them. We have a lot of work to do and I welcome your support. Please go to parentalrights.org or parental rights foundation.org to learn more.
Thank you also to my hosts, Indiana Association of Home Education and Homeschoolers of Maine for allowing me to speak here today. They are the backbone of homeschool freedom, and they know that homeschool freedom depends on the traditionally understood, fundamental right of parents to raise, nurture and educate their children. So please support them as much as you can, especially through these difficult times.