LEGAL CHALLENGES TO HOME SCHOOLING: A REVIEW OF RECENT CASE LAW

Lyndon G. Furst
Professor of Educational Administration
Andrews University
Berrien Springs, Michigan 49104

Keywords: Homeschooling, home schooling, home education, legal, law.

THROUGHOUT HISTORY PARENTS have schooled their children within the confines of the home. It has been only in recent times that government has taken the responsibility to educate children in state operated schools. For example, it was not until 1837 that Massachusetts established the first state board of education. However, by the end of the 19th centuxy compulsory school attendance laws were common in America (Meyer, 1965).
Home schooling then, is not a recent phenomenon even though the media has in the last several years given greater attention to it. In our complex society there is the necessity for some type of formal schooling. A democracy is dependent upon a literate population which it is assumed attendance at school will provide. A recognition of this need has resulted in compulsory school attendance laws in all of the 50 states.
In 1922, the state of Oregon enacted a law requiring all children to attend public schools. The Supreme Court overturned that law, affirming the right of private schools to exist (Pierce v. Society of Sisters 1925). In the same decision, however, the court identified the right of the state to enact reasonable regulations for all schools, including those not operated by the government.
More recently, a group of Amish parents challenged Wisconsin’s compulsory attendance law. In that case, the Supreme Court ruled that Wisconsin’s compulsory attendance law could not be applied to the Amish because of their religious convictions against schooling beyond the eighth grade (State of Wisconsin v. Yoder. 1972). While the court ruled in favor of the Amish, it did indicate that the state had a strong compelling interest in ensuring that the children of the state received an adequate education regardless of whether the children attended the public schools, private schools, or home schools.
Throughout the last fifty years there have been a variety of legal challenges to the right of parents to school their children at home and conversely by parents challenging the right of the state to interfere with such schooling. In any study of the legalities of home schooling, it must be realized that there are various aspects of the law which affect the right of parents to educate their children at home. The basic law of the nation is the Constitution. Additionally, legal principles are codified in statutes enacted by state legislatures and interpreted through rules and regulations developed by state departments of education.
However, this paper focuses on a third source of legal guidance—the case law or common law that includes decisions by the judicial branch of government regarding the constitutionality of statutes and their application to specific situations. Specifically, this article will review and summarize the case law from 1988 to the present in order to analyze the directions the courts are taking which will directly affect the right of parents to educate their children at home.

The Review of Literature

MUCH HAS BEEN written in recent years regarding the matter of home schooling. The value of home schooling and the educational achievement of children who are home schooled has been well documented (Ray, 1990). Research has also been conducted to estimate the total number of children involved in home schooling with the best estimate being about 350,000 (Lines, 1991). There have been several research investigations into the legalities of home schooling. Ray (1989) did a comprehensive study of various states and discovered that there are a variety of statutes and regulations among the states that affect home schools. One year later Yastrow (1990) confirmed Ray’s findings and concluded that there was wide variety in both the law and the enforcement of the law among the states. While parents have some right to choose educational alternatives for their children, the state has the right to regulate those choices. Home instruction is viewed by the courts as a public policy issue which must be decided by the legislatures.
Buchanan (1987) investigated the evolution of parental rights and concluded that in recent years the courts have generally ruled in favor of parents in matters of home education. Two other studies tend to contradict this conclusion. Sacken (1988) found that parental choices are substantially constrained in many states. He concluded that the authority of the states to regulate all forms of education, including home schools, remains intact. Another more recent study (Henderson, Golanda, & Lee, 1991) found that the state maintains sovereignty in guardianship over all children and that generally the statutes restricting home schooling have been upheld.
The following sections of this paper address two primary goals. First, this paper provides a review and analysis of recent court decisions relating to home schooling in order to determine what changes of direction, if any, have been evidenced by the courts as they look at the conflict between the state’s interest in regulating home schools and the desire of the parents to be free from such regulations. The review is focussed on the time period since 1988 because (a) a number of thorough reviews of legal issues have been written covering the period prior to 1988, and (b) a number of significant decisions affecting home education have occurred since 1988.
Second, this paper assesses the extent of freedom afforded to parents as they choose the best educational setting for their children and suggests how parents can most effectively influence public policy in the area of home education.

Review of Cases

HOME SCHOOL PARENTS often assert that they have a constitutional right to direct the education of their children unfettered by rules of the State. This assertion was recently contested in a federal court in Michigan (Clonlara v. Runkel, 1989). In this case, parents sought to have the court declare that they had a fundamental right under the Constitution to direct the education of their children. While such a finding would not remove state control of home schools, such controls would be subjected to a high level of judicial review (called “strict scrutiny”) to determine if the state was unconstitutionally restricting the parents’ right to the free exercise of religion. The court concluded that the parents had “no fundamental right to educate their children at home free from reasonable government regulation.”
The second issue in the Clonlara case was whether the Michigan law affecting home school parents was unconstitutionally vague. While this legal construct was used successfully as a challenge to Minnesota’s compulsory school attendance law (State v. Newstrom, 1985) it did not prevail in the case of the Michigan law. The Minnesota law provided criminal penalties for non-compliance while such penalties were not available in Michigan. Thus the court found that the Michigan law was not unconstitutionally vague.

Teacher Qualifications
Much of the home school litigation in past years has been as a result of regulations requiring state-certified instructors for children being schooled at home. Four recent cases have dealt with this issue. In a North Dakota case, State v. Melin (1988), the State Supreme Court followed the general pattern of review when an individual claims the state’s regulation unconstitutionally infringes upon the right to the free exercise of religion. In such cases the courts have a four-step process to determine if the particular law in question violates the protections guaranteed by the Constitution. First, it must be determined if the individuals have sincerely held religious beliefs. Second, it must be determined whether their religion is burdened by the particular regulation involved. Third, it must be determined if the state has a compelling interest that is furthered by the regulation and that justifies the burden placed upon the individual’s religious freedom. Finally, if there is a compelling state interest, it must be determined whether the state’s regulation is the least restrictive possible to achieve that interest on the part of the state (State v. Melin, 1988, at 232).
In the Melin case it was determined that the parents had sincerely held religious beliefs and that their religion was burdened by the regulation that home school children must be taught by certified teachers. Further, it was determined that the state had a compelling interest in the education of the children in the state.
The question then turned to addressing whether the regulation was the least restrictive method of carrying out the state’s interest. The state claimed that requiring certified teachers answered this best while the parents believed that there were other methods which would be less restrictive. The court decided in favor of the state, citing a long list of cases as precedent. The Melin case can be considered typical of many other cases that have dealt with the requirement of certified teachers in private and home schools. It appears that states can enact such a requirement without unconstitutionally infringing upon the religious freedom of the parents.
This same reasoning was followed by the Court of Appeals in the state of Michigan in determining that, while the state’s requirement that
home school children be taught by certified teachers imposes a burden on the parents’ First Amendment rights, the state does have a compelling interest and the certification requirement was the least intrusive method to carry out that interest (People v. De Jonge, 1989).
A Tennessee case departs from the usual format for challenges to home school regulations (Crites v. Smith, 1991). In Tennessee, state law requires that home school teachers have a baccalaureate degree to provide home education. However, parents are allowed to request an exemption from this requirement on a year-by-year basis. The Commissioner of Education has the authority to either grant or deny this request. In the Crites case, parents asked the court to find that the commissioner’s denial of their request for an exemption was arbitrary and capricious and therefore unconstitutional. However, the court declined to do so since the statute did not require an exemption to be granted.
The state of South Carolina has regulations which require parents to hold only a high school diploma and to pass a basic skills examination in order for their home schools to be certified as meeting the compulsory school attendance law. Parents who have more than a high school diploma are not required to take the examination. In an unusual case (Lawrence v. South Carolina State Bd. of Educ., 1991) the issue was the process of validating the basic skills examination. Even though home school parents had a high pass rate on the examination, the State Supreme Court ruled that the process for validating the exam, which was required by the statutory law, was not reasonable and therefore the requirement for parents to pass the examination was not enforceable.
In summary, it can be seen that states have wide latitude to impose regulations for the qualifications of teachers in home schools, be they parents or others who have been retained as tutors. This conclusion is consistent with previous court decisions and has been solidified with recent cases. It appears without question that parents will generally be required to abide by the statutory regulations that require specific qualifications if they intend to home school their children. Agents of the state, however, may not go beyond the specific requirements of the statutes.

Testing
Several states require students who have been home schooled to submit to testing so that their educational progress can be determined. In recent years there have been a number of challenges to the mandates for testing of home school students. A leading case dealing with the testing issue is Murphy v. State of Arkansas (1988). At issue in this case was the requirement by the state of Arkansas that children who are being taught at home by parents must be given a standardized achievement test each year. In Arkansas, parents have the right to choose which test will be administered from a list of nationally-recognized examinations. Parents also have the right to be present while the test is administered, however, both the parent and the student are under the supervision of a person designated by the public school to administer the test. It is interesting to note that for students in public, private, and parochial schools no such testing is required.
The challenge in Murphy came because the testing requirement interfered with the sincerely held religious beliefs of the parents. The parents argued that their religious beliefs required them to be completely responsible for every aspect of their children’s education. However, the federal circuit court ruled that achievement testing was the least restrictive method by which Arkansas could achieve its compelling interest in ensuring that children in the state were educated. A similar testing requirement was upheld by an Idaho court (Bayes v. State, 1989). It is interesting to note that some courts have found testing to be more intrusive than other methods of determining that the children were receiving an adequate education, such as requiring the use of certified teachers. Examples of this line of reasoning can be found in Sheridan Road Baptist v. Department of Educ., 1986 and New Life Baptist Church Academy v. East Lon2meadow. 1989.
From a slightly different prospective a federal circuit court upheld a Kentucky requirement that students who transferred from a home school to a public school would be required to submit to an equivalency examination in order to gain credit for the courses they took at home. In this case, Vandiver v. Harden County Bd. of Educ. (1991), a student contended that the extra burden placed on him for passing the examination was a violation of his religious belief. He believed that the necessity to take the examination was unfair and more of a burden than God would want him to bear. The court however ruled otherwise.
In a different case, Stobaugh v. Wallace (1990), a federal court ruled that a Pennsylvania superintendent who required a home school student to take an achievement test was acting outside the law since the home school statute for the state did not specifically require tests to be taken. Instead it was left up to the discretion of parents whether the student should take achievement tests. A Minnesota court dealt with a situation where the state intended to remove children from the home because the parents refused to allow them to take a standardized norm-referenced test mandated by state statute (Matter of Welfare of T.K., 1991). The court ruled that the lower court was premature in its motion to remove the children because it was instituting a harsher response to the parents’ noncompliance than if the children had taken the tests and fallen below the criterion required by state law. In such an event the local public school superintendent would have had to go through a multi-step procedure to determine if the children were receiving an adequate education. If such was not the case, the county attorney could file misdemeanor charges against the parents. Here the court found that removing the children from the home because of the parent’s refusal to have them take the achievement test was beyond what the statutory authority allowed.
Taken together, the recent cases involving testing suggest that the state can impose requirements for achievement testing upon children who are home schooled. However the courts have generally been careful to implement these procedures according to the specific statutory procedures. Educational agents will not be allowed to function beyond what the statute requires. While this gives some freedom to home school parents from the long arm of the bureaucracy, they must still be in strict compliance with the specific requirements of the statutes.

Approval
A number of states have instituted regulations which require approval of home schools by agents of the state such as a local public school superintendent, the local board of education, or even the state commissioner of education. The purpose for this type of regulation is to ensure that the interest of the state in achieving an educated populace is carried out by home schools. It is assumed that in the public schools there is sufficient control by the state to ensure that education takes place. However, because home schools often operate outside of state control, many states have enacted statutes requiring some form of supervision or approval of home schools.
There are number of challenges in both state and federal courts to the supervision and approval of home schools by the state or its agents. The leading case in the state courts comes from Maine (Blount v. Department of Educ. and Cultural Serv., 1988). In this case, the parents had agreed to provide all the information that school officials requested but denied that the state had the right to use such information in the approval process. The Supreme Court of Maine used the same process for scrutinizing the constitutionality of the law as used in an earlier cited case, State v. Melin (1988). As in Melin, they found that the family had sincerely held religious beliefs and the regulation restrained the free exercise of those beliefs. However, they also found that the state had a compelling interest in ensuring the education of the children and that there was no less restrictive means available to ensure that its interest was carried out. The parents had pointed out that the state had less intrusive requirements for non-approved private schools than for home schools. The parents had attempted to file as a non-approved private school without success. However, the court differentiated between a private school and a home school noting that the statute defined a private school as having two or more unrelated students. The court reasoned that the state needed to monitor home schools more rigorously than private schools because in such schools the parents act as monitors over the school.
Also in 1988, a challenge was brought in federal court in New York concerning statutes which provided for scheduled visits to home schools by state representatives for the purpose of determining whether proper education was taking place (Blackwelder v. Safnauer, 1988). The parents challenged the statute on a number of issues. Two issues of special interest were the vagueness doctrine in which the parents argued that the statute was unconstitutionally vague in that it used the words “competent” and “substantially equivalent.” The court however, indicated that these words were of sufficiently narrow application to pass constitutional muster. The parents also claimed that the law which provides for on-site visits by the superintendent violates the establishment clause of the First Amendment. The court cited the Lemon v. Kurtzman (1971) case at length identifying the three part test advanced there and concluded that the New York law does not result in a pervasive governmental presence in the home such that it results in an “excessive entanglement~ between government and religious matters. Also, the parents claimed that since the superintendent was not an impartial decision maker and that the whole process of his visitation and approval was a violation of their due process rights under the Fourteenth Amendment to the Constitution. The court denied these claims also.
The Blackwelders had at the same time filed in a state court as well as the federal court. In a surprising decision (Matter of Blackwelder, 1988) the state court upheld the right of the state to evaluate the home school program, but declined to find educational neglect even though the parents had refused to allow the superintendent to evaluate their program. The court stated that it was the duty of the superintendent to prove that neglect was taking place and not merely show that he was unable to evaluate the children. In another federal case the district court ruled that a
– Pennsylvania statute~was unconstitutionally vague (Jeffery v. O’Donnell, 1988). The court referred to the Blackwelder decision and differentiated the situation in Pennsylvania from that in New York in that the New York requirement that schooling be provided by a competent teacher and be substantially equivalent to that of the public school was supplemented by extensive regulations which explain the meaning of the law and its application. Such was not the case in Pennsylvania. Here the district superintendent was allowed to make an arbitrary decision. Evidence was presented that different superintendents had applied the law differently, and that there was wide disparity among the types of programs that were approved. The court ruled that the Pennsylvania law was unconstitutionally vague as it was applied to home schools.
A Michigan court ruled in favor of parents on a different basis (Clonlara. Inc. v. State Bd. of Educ., 1991). In Clonlara, the parents asked for an injunction to prevent the State Board of Education from enforcing rules for home school compliance procedures. These procedures were developed as a method of enforcing the state’s statute. However, they went beyond what the statutes required and as such were defined by the court as rules not mere explanations. Michigan has an established process which must be followed before such rules can be implemented. The State Department of Education had not followed this process in promulgating its rules; hence, they were declared not to be enforced.
In Ohio, parents challenged the right of the superintendent to make decisions regarding their qualifications to conduct a home school (State v. Levy, 1988). The court upheld the delegation of authority by the state to the superintendent as being constitutionally sound. In a similar case in North Dakota, a state statute allowed the superintendent of public instruction to exempt a child from the compulsory school attendance law. Parents who home schooled their children appealed the denial of their request for an exemption by the superintendent. However, the court declined to hear the appeal because the statute that provided for the superintendent’s authority gave no right of appeal of the superintendent’s decision (Van Inwagen v. Sanstead, 1989).
A Virginia law specifically exempts from compulsory attendance at school any family that has bona fide religious beliefs opposed to attendance at school. In Johnson v. Prince William Cty. Sch. Bd. (1991), the Virginia Supreme Court upheld a local school board’s denial of a request for an exemption because it was ascertained that the parents’ beliefs were not bona fide religious but were personal, philosophical beliefs. While the court did not say what would constitute a bona fide religious belief, it identified serious discrepancies in the testimony of the parents as to just what their belief system was.
As can be seen from the cases presented here, states appear to have broad authority to provide systems for approval or disapproval of home school programs. There have been no successful challenges to the state authority under the federal constitution. Those challenges which have been successful have involved the specific application of the statutes and have given the home school parents very little protection from the statutes. The only protection seen in recent years are when educational personnel become overly adventuresome in applying the statutes beyond their original intent.

Discussion

THIS STUDY REVIEWED and summarized recent case law relating to home schools and identified areas of legal protection for home school parents. Court decisions from 1988 to the present were reviewed. From the cases presented here it can be seen that there are several areas where the courts have risen to the defense of home schools.
First, when regulations written by a state department of education go beyond specific statutory authority, the courts tend to support home schools. Also, when agents of the state such as local school boards or school superintendents function in a manner that is beyond what the statutes allow, the courts rule in favor of home schools. Finally, when either state educational officials or the local officials apply rules or regulations in an arbitrary or unreasonable manner, the courts tend to support home schools.
In analyzing the cases presented it can be seen that there are areas where the courts will not rule in favor of the home school but will instead support the power of the state to regulate such schools. The courts have not overturned state statutes addressing reasonable regulation of home schools. They have consistently allowed states to develop a variety of methods to control home schools including requiring certified teachers, standardized achievement testing of the students, and submission to approval by local educational authorities. Even when parents have sincerely held religious beliefs, the courts have generally upheld state statutes, citing the state’s compelling interest in education.
It appears then, that parents have only a limited recourse in the courts in seeking protection from the power of the state. The courts have in a number of cases indicated that the appropriate place for the development of public policy is the legislative branch of government rather than through the judicial branch. A good example of such policy development is found in Nebraska where, during the 1980s, there were widely publicized legal battles relating to the regulation of private religious schools. The issue there was the requirement for state certified teachers. At every level the court ruled in favor of the state (see State v. First Baptist Church, 1981). However, the adverse publicity was so widespread that the state legislature voted an exemption for parents who have sincerely held religious beliefs which prohibit them from sending their children to state-approved schools. Such people—including home school parents—can now be exempted from the compulsory school attendance law in Nebraska. Other states such as Kansas which have no regulations controlling home schools. Private schools have the option of requesting state accreditation. Those that decline to do so can operate relatively unfettered from state control. Home schools in Kansas are considered as private schools.
In conclusion, it seems that parents have the best opportunity to operate free from government control by working with state legislatures. Through the legislatures, home educators can work toward the development of exemptions to compulsory attendance laws for children who are schooled at home or toward enactment of less restrictive state regulations. Usually this can be attained more easily by home school coalitions than by individual effort. In any event, it appears that there is little hope for protection from the courts to gain relief from state regulation of home schools.

References

Bayes v. State, 785 P.2d 660 (Idaho App. 1989). Blackwelder v. Safnauer, 689 F. Supp. 106
(N.D.N.Y. 1988).
Blount  v. Department of Educ. and Cultural Serv., 551 A.2nd 1377 (Me. 1988).
Buchanan, Suzanne (1987). Chalk talk: Evolution of parental rights in education. Journal of Law and Education, 16(3), 339-349.
Clonlara, Inc. v. Runkel, 722 F. Supp. 1442 (E.D. Mich. 1989).
Clonlara, Inc. v. State Bd. of Educ., 469 N.W.2d 66 (Mich. App. 1991).
Crites v. Smith, 826 S.W.2d 459 (Tenn. App. 1991).
Henderson, Donald H., Golanda, Eugene L., & Lee, Robert E. (1991). Legal conflicts involving home instruction of school-aged children. Education Law Reporter 64 999-1014.
Jeffery v. O’Donnell, 702 F. Supp. 516 (M.D. Pa. 1988).
Johnson v. Prince William Cty. Sch. Bd., 404 S.E.2d 209 (Va 1991).
Lawrence v. South Carolina State Bd. of Educ., 412 S.E.2d 394 (S.C. 1991).
Lemon v. Kurtzman, 403 U.S. 602 (1971).
Lines, Patricia M. (1991). Estimating the home
schooled population. (Report No. OR-91-537). Washington, DC: Office of Educational Research and Improvement
(ED). (ERIC Document Reproduction
Service No. ED 337 903)
Matter   of Welfare of T.K., 475 N.W.2d 88 (Minn. App. 1991).
Matter of Blackwelder, 528 N.Y.S. 2d 759 (Sup. 1988).
Meyer, Adolphe (1965). An educational history of the western world. New York: McGraw-Hill.
Murphy  v. State of Arkansas., 852 F.2d 1039 (8th Cir. 1988).
New Life Baptist Church Academy v. East Longmeadow, 885 F.2d 940 (1st Cir. 1989), cert. denied, 494 U.S. 1066 (1990).
People v. De Jonge, 449 N.W.2d 899 (Mich. App. 1989), aff’d on reh’g 470 N.W.2d 433 (Mich. App. 1991).
Pierce v. Society of Sisters, 268 U.S. 510 (1925). Ray, Brian D. (1990, April). Social capital, value
consistency, and the achievement outcomes of home education. Paper presented at the annual meeting of the American Educational Research Association, Boston, MA.
Ray, Brian D. (1989, April). Setting the context for state regulation of home-schoolin2 parents.
Paper presented at the meeting of the
American Educational Research
Association, San Francisco, CA. (ERIC
Document Reproduction Service No. ED
308 585)
Sacken, Donal M. (1988). Regulating nonpublic education: A search for just law and policy. American Journal of Education 96(3) 394-420.
Sheridan Road Baptist v. Department of Educ., 396 N.W.2d 373 (Mich. 1986), cert. denied, 481 U.S. 1050 (1987).
State v. Faith Baptist Church, 301 N.W.2d 571 (Neb. 1981).
State v. Levy, 563 N.E. 2d 358 (Ohio App. 1988). State v. Melin, 428 N.W. 2d 227 (N.D. 1988), cert. denied 488 U.S. 942 (1988).
State v. Newstrom, 371 N.W.2d 525 (Minn. 1985).
State of Wisconsin v. Yoder, 406 U.S. 205 (1972).
Stobaugh v. Wallace, 757 F. Supp. 653 (W.D. Pa. 1990).
Van Inwagen v. Sanstead, 440 N.W.2d 513 (N.D. 1989).
Vandiver v. Hardin County Bd. of Educ., 925 F.2d 927 (6th Cir. 1991).
Yastrow, Sybil (1990). Home instruction: A national study of state law. Home School Researcher, 6(1), 13-18.