A “chill” on the First Amendment and minimal interference of parental authority

That was part of the Seventh Circuit  Court of Appeals explanation on a reversal and remanding of an Indiana curfew law in 2004. 
Hodgkins v. Peterson

From the Wisconsin Law Journal- Curfews on minors violate First Amendment: A curfew on minors impermissibly chills the exercise of their First Amendment rights and is unconstitutional, the Seventh Circuit held on Jan. 22.

In Arthur last week at the homeschool support group meeting, there was discussion about daytime curfews.  There have been several passed.  It’s hard to keep track of which Illinois towns and cities homeschoolers, (and others not on The Public School Schedule), might have to prove they’re legally walking the streets or playing in their front yard.   One comment on the Illinois Review about Maywood gives an idea of what’s heading our way:

Nothing Quick and Easy about More Curfews

Lincoln was one of the towns dealing with a daytime curfew.  The proper term in municipalities is truancy ordinance and the daytime curfew was passed this week (with exemptions…chilliness), as reported by the Lincoln Courier.

This same Lincoln council had a member who suggested that homeschoolers wear badges if they care to venture outside during school hours.  The ordinance stands. Kids found out and about are guilty until proven innocent.  Here’s an article synopsis timeline of Lincoln events and the degradation of freedom rights.

Truancy proposal rappedPublished Wednesday, April 11, 2007

Alderman Wanda Rohlfs, who mentioned the possibility of badges identifying home schoolers, said, "I see an awful lot of kids in Scully Park," across from the Main Street Lincoln office she directs.

Rohlfs is a retired Lincoln Community High School teacher and counselor.

Be careful with truancy ordinance Editorial published Saturday, April 14, 2007

Home school parents are concerned because they fear an impingement on freedom, that passage of an ordinance might intimidate their children and make them reluctant to perform assignments away from home during “school hours.”


We oppose that idea.[Wanda Rolfs’] Home schooled kids, just by virtue of being schooled at home, already belong to a group of “different” kids. We see no reason to further single them out for further ostracizing.

Home schooled kids as a group generally are bright, motivated and skilled at studying independently. While every group has its problems, we see no reason to single out home schoolers simply because they might not be in a classroom.

That, we think, is the fear of the parents. That their children would feel inhibited and restricted.

It’s about freedom, they say.

Council stands by truancy ordinance Home-school parents voice concerns
Published Wednesday, November 28, 2007

In their version of the ordinance, the parents removed the word "student" several times and replaced it with "truant."

Bates said he is especially concerned with the home-school parents’ desire to change the definition of a truant. All students – including those who are home-schooled and those enrolled in public or private schools – "are all subject to compulsory attendance," Bates said.

Students become truants, he said when they have an unexcused absence from attending class.

But according to the group’s suggested definition, a student could not be labeled a truant unless he or she has been previously identified as such by Jean Anderson, superintendent of the Regional Office of Education, or by school administrators.

"If they’re not on Jean’s list, they’re not a truant," Bates said, referring to that key point in the parents’ revisions. "That’s not what I consider a minor change."

It might be not be a minor change, but it might be accurate.  This issue regressed in Lincoln to this point:

City adopts truancy measure

The home-school parents raised their objections late last year as the council was poised to vote on the measure. Neitzel tabled the measure and promised the home-school group she would have one more committee meeting to air their concerns.

When that meeting finally took place last month, the home-school parents said instead of extensively rewriting the ordinance, they would be satisfied if one simple provision be added to the enforcement section of the proposal. That provision requires a police or truancy officer to contact the school or the regional superintendent’s office to determine a child’s status before a citation is written.

Well, kids, you’re guilty until that contact is made. If I’m understanding correctly, Anderson’s office or the school office gets a phone call from the police or truancy officer about any potential 7-17 year old outside their house.  Baby, it’s cold outside.

Here’s part of the conclusion of the 7th Circuit Court of Appeals in reversing the nighttime curfew for this Indiana case: Hodgkins vs Peterson

Consequently, we reverse the judgment and remand with directions to enjoin the enforcement of Indiana’s curfew until such time as the State’s legislature removes the chill that the statute places on the exercise of First Amendment rights by minors. Although this case is before us on the appeal of a denial of a motion for preliminary injunction, given the manner in which the parties and district court agree that the affirmative defenses will operate, the constitutional defect in this case is clear. There’s no need for further proceedings on this matter and judicial efficiency will best be served with an instruction tithe district court to permanently enjoin the enforcement of the curfew law.

Although this disposition renders it unnecessary to reach the plaintiff parents’ due process claim, the nature of the curfew’s affirmative defenses leads us to make one final observation about that claim. The premise of the due process claim is that parents have a right to make decisions about their children’s upbringing without undue interference by the state. Courts sustaining curfew laws against this type of claim typically cite the laws’ exceptions and defenses as evidence that the laws interfere only minimally with parental authority.

Valerie has good links and good information about this issue.  It’s another cutting edge onslaught and it hurts:

Curfew reports around the country


A “chill” on the First Amendment and minimal interference of parental authority — 10 Comments

  1. It is bizarre.

    The schools assert their authority to the communities and the communities cave. There are truant officers in the school system, but the school has such authority that the community doesn’t just tell them to take a flying leap and do their job.

    It is a moneymaker. The municipalities also lay a few fines on the kids’ backs. Or community service. The kids are truant because they’re not engaged in what the schools have to offer. But there’s no accountability about that.

    Lincoln’s curfew…ordinance was based on Rockford’s and I ran into this Winnebago County (Rockford) powerpoint.
    For 2006 Significant Issues Affecting Education of Children in Our County
    41.1% were concerned about the Quality of teachers
    15.1% were concerned about truancy.
    What did the schools/Rockford go with but truancy as that was the next to the bottom concern of the community. The community stood for it.

    Hope Canada stays far away from this issue, Dawn. It’s oppressive.

  2. What I don’t understand is why the school cannot simply look through their attendance records and send their truancy officers out to deal with the kids who are truant. And if a group of teens is actually causing problems somewhere, they can be questioned by police anytime of day.

    Why make being outside illegal during certain times of the day? I don’t see how this is even addressing the problem they want to solve.

    My senior year, I went to public school but only for two classes. I would have had to figure in the possibility of being stopped by police making me late for school. : )

  3. I graduated high school early, but would have been harrassed as being truant under these laws.

    It seems the schools are not content to deal with their problem–report truancy to parents and to the truant officer. Now they want the local police to deal with their problems.

    I think the chill is greater than we realized. This is not about younger children, who would be supervised by their parents. This is about teens, who are assumed to be guilty until proven innocent.
    And finally, it is about control.

    I have a friend whose daughter–the in high school- was truant every day for almost an entire quarter. She was depressed over a teacher’s suicide, which was highly publicized in all the gory details. She rode the city bus around town all day and came home at the usual time–on the school bus! The school did not once call my friend to find out what was wrong.

    And now they want to control the homeschool kids. They ought to do their own jobs first!

    I say, let the schools handle the problem by properly reporting to the parents–who are ultimately responsible. This way the homeschoolers do not have to wear yellow stars–oops, badges, that violate their privacy as well.

  4. So Dana and Elisheva and my daughter would have been stopped on the street by police. Along with anyone else who looked about the right age. As if the police didn’t have anything better to do. There is no logic to any of this.

    Lincoln’s council was approached by the Regional Office of Ed Supt Anderson. Why not, as pride isn’t an issue and she had nothing to lose and everything to gain. Her responsibility for solving the truancy problem is now part of the city’s problem. Why do the tax payers stand for this double dipping into their pockets?
    I emphasized that point in an editorial about the Rockford curfew. Same problem, and from looking at the powerpoint presentation linked in my 1st comment, they’re not solving the truancy problem either. The kids just got a little smarter.

    But so did these officials. Why are they continuing with this even as it’s been appealed and declared unconstitutional? Because they can.

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  6. We think of homeschooled kids rights being trampled with curfews, but honestly any child who is excused from attendance on any given day is at risk of being criminalized. And this doesn’t just offend the First Amendment. Actually, the statement from the alderman,

    “I see an awful lot of kids in Scully Park,” across from the Main Street Lincoln office she directs.

    indicates that she would also be willing to violate

    the Fourth Amendment in which a person is secure from unreasonable warrant-less search of their person. Warrants require the specificity of place person and reason. Playing, walking, sitting, reading or just plain gathering is not probable
    cause. All of these activities are covered under peaceable assembly of the First Amendment.

    Truants are breaking the law. Skipping a day of school does not make someone truant in most communities. A child must miss around 14 unexcused days which do not have to be consecutive in our district. By the time this occurs, one would think that officers should be presented with descriptions and vitals about the “dangerous” criminals they are hunting down. By that time they should also have acquired a warrant for the specific person. That would eliminate unnecessary questioning of countless children when looking for truants.

    Treat truants like the criminals they are and you don’t have to treat children like criminals.

  7. I totally agree with your point that all citizens should be concerned about this curfew issue. What I don’t understand is why many homeschoolers (particularly in IL) aren’t engaged in contesting this issue.
    The issue of truancy stems from the school system and results from the school system. Truancy officers are pd by school district monies to deal with truants. Why the buck didn’t stop there just blows my mind.

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