An Open Letter to Ohio Senators Cafaro, Brown, Turner and Schiavoni RE Senate Bill 248

UPDATE: VICTORY! http://hslda.org/hs/state/oh/248_withdrawl_statement.docx. Here and after I already printed, signed and sealed my copies of the letter. Oh well. At least I didn’t stamp them. I will definitely have to keep my eye on this issue though.

I live in Ohio. I home school. This hits home. Senate Bill 248 is an attack on home schooling families. Read more here and here. In response, I have drafted the following letter that I plan to send to the sponsoring legislators. I will also be sending a modified version to the senator from my district urging his opposition to this.

To whom it may concern:

I am writing to urge you to withdraw Senate Bill 248. I understand the urge to do something that would prevent a similar tragedy as what befell Teddy Foltz-Tedesco. Unfortunately, this bill is not the answer. Those responsible for Teddy’s wrongful death should be brought to justice and can be under existing law, but this bill confuses justice with prevention. In your zeal to prevent the crimes of abuse and murder, you have created a bill that would treat every home schooling family in the state as guilty until they prove their innocence. Not only does this mislay the blame for Teddy’s death and do nothing to solve the problems that led to it, this bill violates fundamental American values and no fewer than four rights enshrined in the US Constitution.

Because many parents home school for religious reasons,  and because this bill would require them to obtain government blessing before home schooling (which is a form of prior restraint) it would violate their First Amendment rights to free speech and the free exercise of religion. This bill would give the state power to override parents’ curriculum choices, many of which were based upon strongly held religious conviction. The merits of evolution or sex education aside, no government at any level has the authority to mandate that parents violate their conscience in the educational choices they make for their children.

Worse yet, the very nature of this law is to hold the freedom to home school hostage on the condition that parents allow Children’s Services to first make sure they are not abusive. This presumption that there must be something about home schooling families that inherently makes them more abusive is discriminatory and not supported by data of any kind. It takes one isolated incident, jumps to a conclusion based on correlation and over-reacts. Surely abuse can happen in non-home schooling families? Indeed it does! Yet this bill targets home schooling parents, presumes they are guilty of a crime, and forces them to testify “in their defense” before ever being charged with a crime. What does a child’s curriculum have to do with whether he is abused in the home? Children’s Services is already a monstrous, tyrannical government agency that’s very modus operandi consistently violates the Fourth, Fifth and Sixth Amendments of the US Constitution. This bill only makes things worse.

Because the very nature of this law is to treat every home schooling family in the state as an abuse-or-wrongful-death-waiting-to-happen by taking an active, ongoing monitoring role in their education, it violates the presumption of innocence inherent in the Fifth, Sixth and Fourteenth Amendments and upheld in Coffin v. United States. No person should ever have to prove his innocence against an accusation, and no citizen should have to volunteer evidence of innocence in order to avoid an accusation in the first place. The burden of proof is on the state.

Furthermore, there is to be no such thing as a “General Warrant” in the United States, which would give government officials and police the right to go around looking for people doing some undesirable behavior. Warrants are to be for specific crimes, persons and objects. Because this bill would place a “general warrant” on all home schooling parents, sending Children’s Services looking for those who abuse, it would be a violation of each family’s Fourth Amendment rights.

Add to that the fact that being interviewed and forced to provide portfolios and curricula to the government official for review in order to get a stamp of approval amounts to compulsion of self-incrimination – at least for those who the official accuses of crime. Whether that “crime” is abuse, or insufficiently educating their children; whether the reaction is to remove the children from the home permanently, or just for seven hours every weekday by forcing them to go to public school, the accusation will come based on an unlawfully forced self-incrimination.

Further, because this law will amount to a ban on home schooling by default until permission is obtained from the government, the Children’s Services worker would have the power to pass judgment without due process. In violation of parents’ Fifth Amendment protection against being deprived of life, liberty or property without due process, this law deprives every family of the liberty to home school until they obtain special permission. In violation of parents’ Sixth Amendment rights to a trial by a jury of his peers wherein the burden of proof will be on the government officials to prove their case beyond a reasonable doubt, this bill would empower Children’s Services workers to manipulate and control families on the basis of their judgment alone apart from the burden of needing to charge them with a crime and prove their case in court.

In short, this bill is unconstitutional by its form and its function. It is unlawful by function because the activities needed to enforce it are unconstitutional, and it is unlawful by form because its very nature is unconstitutional. These protections were enshrined in the Constitution to prevent corrupt government officials from hounding peaceful citizens until they find an excuse to accuse them of trumped-up charges. If this bill is passed, it empowers Children’s Services agents with less than honorable motives to scrutinize families as closely as they like until they find some excuse to barge in. Children’s Services agencies around the country are already out of control, entering homes without warrants, taking children from families with no probable cause, amassing a long track record of overreacting to false accusations from anonymous tips and claims that are outright silly. What’s worse is that they show absolutely no remorse for the agony and terror they leave in their wake – even, in cases, refusing to return children who have been wrongfully separated from their parents. This behavior is unjust,  unconstitutional and immoral. It violates the very first principle of the Bill of Rights which is that the government ought to assume that its people are innocent until probable cause leads the authorities to accuse them of a crime and a trial by jury convicts them. This law turns it on its head. Families are presumed guilty until they can prove their innocence.

If SB 248 is allowed to become law, you will unleash the monster of Children’s Services on peaceful, non-violent, law-abiding citizens who have done absolutely no harm to anybody. This would be morally reprehensible and must be avoided, or this bill will do more harm than good. What’s more, it is entirely unnecessary. The circumstances of Teddy’s situation were such that the proper authorities had the probable cause they needed to rescue him from his abusive home without violating the Constitution. Unfortunately, the Children’s Services workers did nothing for him. I submit that this is likely because Children’s Services resources are stretched too thin. By wasting time, money and man-power chasing down every unsubstantiated, silly, and false accusation, Children’s Services hinders their own capacity to respond to situations like Teddy’s – the exact kind of case that Children’s Services was intended to handle, falling within their just and necessary jurisdiction. Yet because the agency is poorly managed and stretched too thin, they did nothing for him. The solution is not to take the already thinly stretched resources of Children’s Services and stretch them further. The solution is to rein the agency in and have them focus their efforts on the cases, like Teddy’s, where legitimate probable cause grants them proper constitutional authority to rescue children who are truly being abused.

I will give you the benefit of the doubt that you have not merely capitalized on the opportunity presented by Teddy’s death to launch an attack on home schooling. I have no proof that your motives are anything other than what you present them to be: that you truly desire to prevent similar tragedies. But as well-intentioned as its creation was, this bill must die a quick and merciless death. If you at all honor your oath of office, I would urge you to please reconsider. There are other, more effective and more equitable ways to do so without waging war on innocent families.

Thank you for your service, time and consideration.

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