When state legislators attempt to enact laws that burden or break our constitutional rights, they often cite concerns related to the “health, safety, and welfare” of the public. And while these generalized concerns may fall within the so-called residual police power left to states in our federal system, they are not a license for states to do anything they want. All too often these justifications are nothing more than pretense for pursuing a preferred, possibly unconstitutional, policy goal. An example of this troubling dynamic are two bills recently introduced in the California Legislature.
As originally introduced, CA Assembly Bill 2756 would have required the compilation and dissemination of separate lists of all private schools with six or more students and five or fewer students in California, and would have required the inspection of all included schools for compliance with fire safety building codes applicable to public schools. This listing would have included private homes where parents decided to homeschool their children. CA Assembly Bill 2926, on the other hand would have recommended to a forthcoming home school advisory committee that they consider the “the appropriateness and feasibility of imposing…health and safety inspections” on the private homes of California home schooling parents. As we previously commented, AB 2756’s fire safety inspections introduced a whole bevy of constitutional issues, including possible violations of the Fourth Amendment. Perhaps hoping to avoid further controversy, the bill’s text was soon modified to remove this offending language. But AB 2926’s mandate that “health and safety inspections” be considered remained.
In a comment letter we prepared, but ultimately did not submit for reasons explained below, we explain in detail the unconstitutional nature of these proposed warrantless searches.
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Both reasonable expectations of privacy, and property rights are protected by the Fourth Amendment. Generally speaking, to be constitutional, the search of seizure of a person, their property, or their home, by government agents must occur pursuant to a warrant based upon probable cause and issued by a neutral magistrate. Whether considered on a privacy, or property rights based approach, both of which are protected under the Fourth Amendment, warrantless “health and safety” inspections of the private homes of California home schoolers would be constitutionally problematic.
And while there are several narrowly drawn exceptions to the warrant requirement, such as so-called administrative searches, these do not operate as a complete license for the government to search or seize at will and for any reason. While officials can obtain warrants for “area inspections” to further public health and safety in specific settings, where either the government searches every person, place, or thing in a specific location or involved in a specific activity or where groups of individuals with reduced expectations of privacy are searched, homeowners or leaseholders have a “constitutional right to insist that the inspectors obtain a warrant to search…”. In addition, “to be constitutional, the subject of an administrative search must, among other things, be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” Unlike administrative searches previously held to be constitutional, home schooling families do not have a lowered expectation of privacy, like a public school student who is suspected of carrying contraband. Just because private citizens have opted to home school their own child or children legally under California law does not mean that they have a lowered expectation of privacy in their own homes.
Conveniently however, yesterday the sponsor of AB 2926, Assemblymember Susan Eggman, amended the bill (as was done with AB 2756), to remove the questionable language regarding “health and safety inspections.” But given the bills as originally written, the actual intent of the legislators is clear. We are left with the inescapable conclusion that AB 2756 and AB 2926 are not really about protecting the health and safety of home schooled children in California at all: They are intended to regulate, control, and shut down the ability of California parents to homeschool their own children, through a breach of the Fourth Amendment if necessary. We can only hope that these provisions will not be clandestinely re-added to the bills at a later time, as all too often happens. These efforts should be resisted by the members of the California Legislature who care about educational freedom and the Bill of Rights.
PLF will continue to monitor and report on the situation.