The Dangers of the Fluharty Amendment

by | Feb 26, 2024 | Legislative, News

A legislative Call to Action was sent out this evening because the “Revised Fluharty Amendment” to HB 5180 appears on the House calendar for discussion and a vote Monday morning, February 26th

While Fluharty and other delegates may mean well, their “fix” for protecting children is terribly flawed. It targets homeschooling families and the clear implication is that abuse is more common in the homeschooling community.  Even if that were true (and it’s not), it doesn’t remove any children from abusive homes. It only precludes homeschooling.

What the amendment does is give power to the school superintendent to preclude homeschooling for a period of 14 days when a child abuse or neglect complaint to CPS has been initiated by a teacher or other school personnel. The effect of this new amendment, much like the original, is to usurp the role of CPS, unnecessarily inform additional people in the school system about an otherwise confidential investigation, and potentially give the superintendent inappropriate power.

This amendment arguably empowers the superintendent to make a judgment call about whether the complaint is “substantiated.”

Yet if the “substantiation” call rests with CPS, the amendment essentially prioritizes CPS complaints against homeschoolers over all other CPS complaints (including those where children are clearly in danger). This underscores another constitutional concern about this bill—the potential violation of equal protection—because it only applies to homeschooling.

It is a laudable and critical goal to protect vulnerable children!  But this law automatically and irrationally assumes homeschoolers face greater vulnerability, based on a few tragic, but anecdotal cases. The only way to protect ALL children fairly is to reform CPS and fund it appropriately. By contrast, the mission of public schools is to educate, not to enforce laws or conduct investigations.

Let’s look at more details.

Constitutional Concerns

The Fluharty Amendment circumvents existing procedural protections – without any evidentiary showing. This raises important constitutional questions.

Due Process: CHEWV has published more detailed information here. In a nutshell, both the state and federal Constitutions prevent citizens’ rights from being taken away without due process of law. The Fluharty Amendment takes away a right based only on an accusation, without any investigation or opportunity for the accused parent to present a defense.

Equal Protection: The proposed amendment essentially targets homeschooling without providing similar provisions for other types of education. If a CPS referral was made for children who were enrolled in a private school, charter school, learning pod, hybrid school, or public school, no preclusion of education would take place for them.

Further, although current law requires an investigation within 14 days after CPS referrals, CPS has only been investigating about half of its complaints within the required 14-day period. If CPS prioritizes homeschoolers over other complaints, then they are, again, targeting homeschoolers.

Yet for all that, the amendment doesn’t prevent a homeschooled child from living in the potentially-abusive situation. Despite the appearance that something has been done, nothing effective would actually be done. Actual abuse requires effective follow-up – something that has been lacking in the anecdotal cases that have precipitated these bills and amendments.

Ineffective Approach

Again, this law automatically and irrationally assumes homeschooling kids face greater vulnerability, based on a few tragic, but anecdotal cases.  It bears repeating: the only way to protect ALL children fairly is to reform CPS and fund it appropriately.  CPS’s job, by definition and title, is to protect children. A mountain of evidence indicates that public schools are less successful in protecting children than are homeschooling families.

“What about the innocent child?” one may ask. This amendment does nothing to require action by CPS any faster. It does nothing to take a child out of an abusive situation any sooner.  If a complaint has been made, the investigation process proceeds as it would otherwise.

Privacy Concerns

As a general rule, CPS investigations are supposed to be confidential [WV Code §49-5-101(a)].  The amendment invites more expansive communication in the school system about the details of the investigation, permitting information about an ongoing investigation to be shared with county board personnel. That this goes beyond a simple notification about an initial referral is an important privacy concern. This country has a system of checks and balances to protect the innocent. This amendment bypasses that process.