While the Second Amendment is being hacked away in Congress and across the country, lawmakers in Connecticut have proposed Bill 374, to take a stab at the Fourth Amendment. The proposed bill will call for a confidential behavioral health assessment of every public and homeschooled student in certain grades, regardless of any evidence of behavioral issues or not. Private schools are not mentioned in the bill. This appears to be a response to the Sandy Hook massacre. In an article by Michael Haverluck, the attorney, Dee Black, from Home School Legal Defense (HSLDA) contends that this bill would “essentially authorize the state to conduct regular social services investigations of homeschooling families without any basis to do do.” I don’t know, I read that, and have visions of black booted soldiers in brown jackets knocking on doors at midnight and herding suspects onto dark trains in the black night.
HSLDA Attorney Dee Black makes an important point about the intended privacy of the assessments. The results are supposed to only be disclosed to the parents, however, the unspecified healthcare provider must also verify to the State Board of Education that the testing has been completed. Black warns that the expectation of privacy may not be as assured as the state claims.
The Fourth Amendment states:
“The 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.”
Key to understanding this amendment is the legal definition of search and seizure. There have been multiple cases argued before the Supreme Court. In the 1967 case, Katz v. United States, 389 U.S. 347, the Supreme Court ruled that a search occurs when 1) a person expects privacy in the thing searched and 2) society believes that expectation is reasonable. The case involved a phonebooth conversation that Charles Katz had reasonably expected to be private. The conversation was wiretapped by the government, and the court ruled that it was an unconstitutional search, based on that reasonable expectation of privacy.
Applying that reasoning to the proposed Bill 374, if the social worker uncovered what they considered behavioral issues, and divulged that information, that would be an unconstitutional search, since there was the stated and therefore reasonable expectation of privacy. Yet, if the purpose of the assessments were to uncover behavior that might be a threat to others, then it is highly unlikely the results would be divulged only to the parents, as stated. It is from inception, a constitutional conundrum. Police may not enter a private home with no reasonable expectation that criminal activity has occurred without a search warrant. Fishing expeditions to find evidence without probable cause are a constitutional no-no. Such evidence would be inadmissible in court. This safeguard was put in place to protect people from exactly what the state of Connecticut is proposing.
The constitutional definition of seizure applies to this case as well. In the case United States V Mendenhall, in the context of the Fourth Amendment, seizure has occurred when by show of force or authority, a person’s freedom of movement is restrained. Key to the court’s finding was that if the person remained free to ignore government questioning, then there was no intrusion upon the person’s liberty or privacy, and there was no seizure.
If a government official, however, such as a social service worker, forces a behavioral assessment upon a homeschool family, and that family is not free to disregard that assessment, their liberty and privacy under the Fourth Amendment would be intruded upon, and thereby, unconstitutional seizure would occur.
And just for argument’s sake, why are private schools exempt? At least if the constitution is going to be tossed out the window, why not apply the blatant disregard indiscriminately? Or is Connecticut simply convinced private school students don’t have behavioral problems?
I have a personal connection to the Sandy Hook massacre. My cousin was the Sunday school teacher of some of those children. She knew the principal that was murdered, as well as many of the families who suffered such unfathomable loss. However, to trample on the freedoms of innocent families, taking poorly considered action that denigrates the rights of all people is ill-advised at best. You cannot legislate away evil. But sometimes legislation can become evil, and that is my concern.
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