The Debate Over Daytime Curfews

Published with Permission
Written by Antony Barone Kolenc
www.antonykolenc.com
www.TOSMagazine.com

My family lives just a mile away from an excellent county library, which my homeschooled children can visit on a nice day in order to check out books for school research or additional reading. They enjoy the stroll with their older sister and feel empowered to use the library’s resources. But would they take that walk if they knew that a police officer would stop them, question them, and possibly ticket them or drive them home in the back of a police car? I think not.

That is just one example of potential harm that a daytime curfew poses for homeschooling families. These laws—a trend that began to catch on in cities and counties during the 1990s—prohibit minors from being in public places during school hours, often at the risk of a stiff fine or a hearing before a judge. Are these laws necessary, and do they really pose a risk to homeschoolers?  

Why a Daytime Curfew?

Proponents of daytime curfews are motivated by good intentions: to decrease juvenile crime and increase the high school graduation rate. Rarely, if ever, are such laws intended to target homeschoolers. In fact, those children taught at home are often excepted from the curfew rules. Yet homeschool advocacy groups, including the Home School Legal Defense Association (HSLDA), are among the most vocal opponents of these laws.

Statistics on the effectiveness of daytime curfews vary widely. For instance, in December 2011—during a debate on whether to enact such a law in Covington, Kentucky (a Cincinnati suburb), the acting police chief of neighboring Newport estimated that his town’s curfew had lowered the rate of daytime crimes committed by minors “probably by over 70 percent.”1 Yet others, such as Ken Adams, Professor of Criminal Justice at the University of Central Florida, have studied the issue and suggest that these laws result in little statistical improvement to the juvenile crime rate and may even increase truancy.2

Whatever their actual impact, daytime curfews continue to be a popular means by which local governments address perceived juvenile problems. In 2011, cities and counties across the United States considered implementing these laws, passing them in towns such as Concord, California, and Covington, Kentucky, while rejecting passage in places such as Carlinville, Illinois, and Stoughton, Wisconsin.

Are These Laws Permissible?

Opponents of daytime curfews assert several reasons why such laws might be impermissible. To name just a few, they argue that such laws interfere with a minor’s constitutional rights to freedom of movement or to be secure from unreasonable searches and seizures. These statutes might also be unconstitutionally vague, making it unclear exactly what conduct is prohibited. Further, they can infringe on parents’ rights to rear their children.

There are also concerns that curfews unfairly target minority students. Recently, the Los Angeles City Council considered changes to its law after the American Civil Liberties Union (ACLU) raised various concerns, including the over-ticketing of Latino and African-American students.

Even where exceptions for home education are built into a daytime curfew, there is cause for concern. The chance that a child will experience an inconvenient and potentially intimidating encounter with police is likely to “chill” a homeschooler’s freedom to go outside during school hours. After all, there is no way for police to distinguish between a home-educated child and a truant public school student, unless the law also sets up an intrusive registration and ID card system.

The Supreme Court of the United States has never ruled on the constitutionality of a daytime juvenile curfew. And, despite legal challenges, some courts have upheld these curfews.3 However, other judges have found them to be problematic and impermissible on several grounds.4 Regardless of these mixed results, communities across the nation have passed, and continue to adopt, curfews as a matter of routine. Very few of them will ever face judicial scrutiny.

What Should Homeschoolers Do?

Daytime curfews have the potential to cause problems for homeschooling families. For that reason, I offer three points of advice in this area.

First, know whether there is currently a daytime curfew in place for your community and whether it contains an exception for homeschooled children. The time to learn the law is now, not when your child comes home in the back of a police car.

Second, keep tabs on local government agendas so you will know if your community is considering a daytime curfew. If so, you may wish to work with other families to fight against these laws or at least to ensure they contain an exception for home-educated children. On its website, HSLDA has prepared a helpful discussion outlining the objections to these laws, along with a package on how to present your views against them.5 Third, if your child is negatively impacted by a curfew, consult with homeschool legal advocates to determine whether they can get the citation dismissed or perhaps even bring a suit against the potentially impermissible law.

Curfew proponents and law enforcement officials have the best of intentions in passing and enforcing these statutes. Where an unintended side effect of the law impacts your family’s right to homeschool, you are not powerless; consider taking action. Above all, know the law and know your rights.

Endnotes:

1. Mike Rutledge, “Daytime Curfew Causes Clamor,” Cincinnati.Com (December 4, 2011), available at news.cincinnati.com/apps/pbcs.dll/article?AID=/AB/20111203/NEWS0108/112040314.

2. Kenneth Adams, “The Effectiveness of Daytime Curfews at Juvenile Crime Prevention,” The Annals of the American Academy of Political and Social Science 587 (136), available at http://ann.sagepub.com/cgi/reprint/587/1/136.

3. For instance, juvenile curfews were approved by the courts in Bykofsky v. Borough of Middletown, 401 F. Supp. 1242 (D. Pa. 1975), aff’d, 535 F.2d 1245 (3d Cir. 1976), Qutb v. Strauss, 11 F.3d 488 (5th Cir. 1993), and Schleifer v. City of Charlottesville, 159 F.3d 843 (4th Cir. 1998).

4. For instance, juvenile curfews were struck down in the following cases: Nunez v. San Diego, 114 F.3d 935 (9th Cir. 1997), and Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003).

5. HSLDA’s packet of information for homeschooler inquiries about daytime curfew laws is available at

www.hslda.org/docs/nche/000010/200308130.pdf.

Antony B. Kolenc (J.D., University of Florida College of Law) is an attorney, author, and speaker. He and his wife have homeschooled their five children for over a decade. He is author of The Chronicles of Xan historical fiction trilogy, as well as several legal articles. Learn more about him at www.antonykolenc.com.

Copyright 2012, used with permission. All rights reserved by author. Originally appeared in the March 2012 issue of The Old Schoolhouse® Magazine, the education magazine. Read the magazine free atwww.TOSMagazine.com  or read it on the go and download the free apps atwww.TOSApps.com to read the magazine on your mobile devices.

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