A Deeper Dive into Due Process

by | Jan 11, 2024 | Uncategorized

The Constitution of the United States states only one command twice. The Fifth Amendment guarantees that no American shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same Due Process Clause to describe a legal obligation of all states.

America was built on a foundation of freedom. Our system of justice protects our freedom by guaranteeing “due process of law” to the accused. That basic constitutional principle is a crucial part of the American fabric.

Why the legal lesson? Because homeschool freedoms are under threat – for what seems like a reasonable cause: protecting children from parental abuse. However, there are those who want to take away parents’ rights if there is but an accusation against them, and that undermines one of our foundational American ideals: that we are presumed innocent until proven guilty. Due process rights must be preserved.

A bill has been introduced in the WV Legislature the past few years that would take away parents’ rights to home educate if there is but an anonymous report of possible abuse or neglect of any sort. According to the proposed language, if a parent is even being investigated for abuse – due to a report from anyone for any reason, they would be disallowed to homeschool for an unspecified time period.  No due process required, which, again, violates our fundamental rights under the U.S. Constitution. Each year, this dangerous bill seems to gain more traction, and we will not be surprised to see an increased effort in this upcoming session.

Public School is NOT a “Safety Net”

The basic assumption of the proposed law is that kids are safer in the public school system than they are at home. But is that a reasonable presupposition?  Many families actually start homeschooling with the purpose of removing their children from harmful situations in the public school.  A web search for “WV school abuse” is troubling.

Ben Salango, who represented several plaintiffs in a multimillion dollar settlement abuse case against the Kanawha County BOE, states, ”People are starting to see this [abuse by public school personnel] on video and starting to understand what’s really going on… This has been going on for years. It’s not just Kanawha County, it’s not just West Virginia.”

While we’re not aiming to condemn the vast majority of public school employees because some have broken the law, we are challenging the assumption that kids are somehow automatically safer in school than at home. Public schools do not qualify as a haven from abuse.

“Presumed Innocent” or “Guilty by Association”

Child abuse is an especially horrendous and shocking crime. No matter who does it or where it occurs, it deeply troubles us all. Yet we shouldn’t presume anyone or any group to be guilty without an investigation and hearing of the facts of the case.

Both ethically and constitutionally, we should presume the innocence of parents – since the vast, vast majority are indeed innocent – unless there is “clear and convincing evidence” to the contrary. (And we might add, clear and convincing evidence of abuse should lead law enforcement well past a prohibition of homeschooling.)

As a society, we certainly presume the innocence of teachers and coaches despite numerous reports of abuse from our public system emerging each year. Teachers are not “guilty by association” because a sinful few have taken advantage of children under their care.

Neither should prejudicial profiling of groups like homeschool families or conservative Christian families be used to unjustifiably link these families to abuse. There is nothing credible, and something terribly wrong, with the idea that parents who homeschool their children or bring them up in the nurture and admonition of the Lord are more likely to abuse their kids. In fact, there’s much evidence to the contrary!

We need to recognize that abuse happens across all demographics, sometimes at the hands of school personnel and sometimes at the hands of a parent. Sometimes coaches, sometimes doctors, and even sometimes pastors. Child abuse allegations of all sorts need to be investigated, then prosecuted and punished as appropriate; but no one should lose their liberty – to homeschool or otherwise – because of an allegation. No entire group of people should lose their right to due process because there was one tragic case of abuse that has been linked to a member of that group – whether the group is public school employees or homeschool parents.