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This Appendix summarizes five cases involving challenges to requirements that home schools be approved by local school district officials. In all of these cases, the approval requirement or process was upheld.

A. NEW YORK CASE: Blackwelder v. Safnauer In Blackwelder v. Safnauer, 689 F. Supp. 106 (N.D.N.Y. 1988), the plaintiffs' brought an action under 42 U.S.C. s. 1983, alleging various violations of their constitutional rights. The plaintiffs asserted that their religious beliefs compelled them to give their children a "Christian education," which they understand to be an education in which their religious values are interwoven into every area of study in which their children engage. They contended that allowing their children to attend public schools, where "religiously integrated" studies are prohibited, would violate their fundamental religious tenets. Particularly offensive to them was the study of evolution and what they termed an "amoral" approach to sex education in the public schools.

The challenged New York law required educational services provided to a minor "elsewhere than at public school" to be at least "substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides." The law also required that such services be provided by "competent" instructors.

Under New York law, the primary responsibility for ensuring compliance with the compulsory education requirements rested with the local boards of education for the various school districts throughout the state. The superintendent of schools in each district commonly acted as the board's agent in carrying out that responsibility. The local boards had the initial responsibility of determining whether an alternative educational program, including a home schooling program, provided instruction "substantially equivalent" to that provided in the public schools in that school district and was provided by "competent" instructors. Such determinations were subject to review by the Commissioner of Education of the State of New York.

1. Free Exercise of Religion

In analyzing the plaintiffs' free exercise of religion claim, the Court applied the strict scrutiny framework set forth in Part I of the body of this Memorandum.

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The plaintiffs argued that New York's compulsory attendance laws burdened their exercise of religion because the state retained the power to approve or disapprove the manner in which they accomplished what they viewed as a religious command; that is, the manner in which they educated their children.

The District Court said that, in applying the first part of the strict scrutiny test, a court is forced to distinguish between incidental governmental burdens on religious conduct and those governmental burdens of the type which rise to the level of a violation of the Free Exercise Clause. The Court said that it was not clear how the requirements of the New York law conflicted with the plaintiffs' beliefs or how the manner in which the requirements of the New York law were enforced by the state's local school districts impinged upon the plaintiffs' religious practices. It seemed to the Court that underlying the objection to the statutory requirement was a certain distrust of public school officials among home schoolers, including the plaintiffs. The Court said that, apparently, there was some fear that those charged with enforcing New York's compulsory attendance laws would require the teaching of secular matters that were inconsistent with the plaintiffs' fundamentalist Christian beliefs. However, the Court said that there was nothing in the language of the New York law that mandated such friction and noted that this case involved a facial challenge to the law.

The Court then went on to say that, even if the New York law burdened practices that were at the core of the plaintiffs' religion, the burden was justified by compelling state interests. Also, according to the Court, the law was as narrowly tailored as was feasible to accommodate the religious conduct at issue without sacrificing those important state interests. The District Court cited the U.S. Supreme Court for the proposition that "education is perhaps the most important function of state and local governments" [Brown v. Board of Education, 347 U.S. 483, 493, 74 S. Ct. 686, 691 (1954)]. The Court stressed two of the governmental interests involved. The first is a significant societal interest in the perpetuation of its political and economic structure; education has long been deemed vital to the preservation of a democratic system of government. The second interest is that education provides the basic tools by which individuals might lead economically productive lives to the benefit of all [citing Plyler v. Doe, 457 U.S. 202, 221, 102 S. Ct. 2382, 2396 (1982), Wisconsin v. Yoder, 406 U.S. at 221, 92 S. Ct. at 1536; and other U.S. Supreme Court cases].

The District Court also stressed that these are not the only matters of concern. Citing Wisconsin v. Yoder, the District Court said that when a child lacking the maturity and experience to make an independent judgment concerning the course of his or her educational future is denied the paramount privilege of an education which meets basic minimum standards, a compelling state interest is implicated.

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The Court concluded that New York's compulsory education scheme seemed to be the least- restrictive means to serve the state's overriding governmental interest. It said that the "substantially equivalent" standard is flexible enough to allow local school officials to accommodate the special requirements of diverse religious groups without sacrificing the vital state interest at issue. According to the Court, - there might be cases in which the manner the state enforces the compulsory attendance law unnecessarily infringes upon the free exercise rights of particular parents, but the mere possibility that such cases might arise was not enough to invalidate the law on its face.

2. Right to Direct Child's Education

The District Court also rejected the plaintiffs' claim that the New York law violated their rights to privacy under the Due Process Clause of the 14th Amendment. The Court said that the U.S. Supreme Court has long recognized that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Due Process Clause. However, the Court said that the degree of judicial scrutiny to be applied to a governmental action that interferes with the privacy interests is not clear. Specifically, the Court said that, in Meyer v. Nebraska, 262 U.S. at 399- 400, 43 S. Ct. at 626- 627, and Pierce v. Society of Sisters, 268 U.S. at 534- 35, 45 S. Ct. at 573, the U.S. Supreme Court indicated that a parent's right to "establish a home and bring up children ... to worship God according to the dictates of his own conscience" and "to direct the upbringing and education of children under their control" may not be interfered with by state action which is "arbitrary or without reasonable relation to some purpose within the competency of the state to effect." The District Court questioned, however, whether the U.S. Supreme Court's understanding of the "rationality analysis" in the mid - 1920's was the same as under modern substantive due process analysis. Further, the Court said that more recent cases involving the constitutional right to privacy indicate that state regulations burdening such a right may be justified only by "compelling state interests" and must be narrowly drawn to further only those interests.

Without stating additional reasons, the District Court concluded, however, that whatever standard or review was applied, the New York compulsory attendance laws survived scrutiny.

3. Establishment of Religion

The plaintiffs, in Blackwelder v. Safnauer, also claimed that the New York compulsory education law violated the Establishment Clause of the First Amendment which prohibits Congress or the states from enacting laws respecting the establishment of religion (i.e., requires separation of church and state). First, the plaintiffs asserted that the statute

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required that the "imprimatur" of the government be placed upon religious education as a condition to the practice of religious education. Second, they maintained that the home visits demanded by the superintendents constituted an excessive intrusion by public school officials into the operation of religious schools.

In analyzing this issue, the District Court used the three- part test set forth in Part IV of the body of this Memorandum.

First, the District Court found that the New York compulsory education law served the important state interest of preserving basic political and economic institutions, as well as assuring that children are intellectually and socially prepared to become self- reliant members of society. According to the Court, these were clearly legitimate secular purposes.

Next, the Court said that the law did not treat the plaintiffs any differently than it did other private schools in the state. Rather than communicating a message of disapproval of the plaintiffs' religion, the Court said that the state had attempted to accommodate the plaintiffs' religious beliefs while assuring that educational standards were maintained. On the other hand, the Court said that such accommodation did not approach the level where the government itself had advanced religion through its own activities or influence. Thus, the Court concluded that the New York law met the second part of the three- part test, that its primary effect neither advanced nor inhibited religion.

The Court then applied the third part of the Establishment Clause test. The plaintiffs maintained that the type of educational standards contemplated by New York, particularly the insistence of the superintendents on prearranged home visits during the instruction of the children, posed a significant threat of fostering the excessive entanglement of government with religion. The Court rejected this claim, stressing that ongoing inspections were not required (the defendant superintendents required one or two prearranged visits to the home instruction sites during the school year) and that the inspections were limited in purpose.

The plaintiffs also argued that a more pervasive involvement on the part of the state might occur if a home schooling program had difficulty in obtaining the approval of local school officials. The District Court rejected this argument saying that a certain amount of contact between government and religious organizations is inevitable and that no state interference with the religious training given students attending home schools was contemplated.

For a discussion of other issues related to these on- site visits, see Appendix IV.

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B. MAINE CASES

1. State v. McDonough

In State v. McDonough, 468 A. 2d 977 (Maine 1983), the defendants appealed their convictions as persons in control of children who were habitually truant. Maine law required that home schools be approved by local school officials but the defendants refused to submit a home instruction proposal for approval.

a. Right to Direct Child's Education

The defendants claimed that the requirement, under the Maine law, that home schools be approved by local school officials violated their right to educate their children at home. The defendants based their claim on the guarantee in the 14th Amendment that no state shall deprive any person of liberty without due process of law.

In examining this claim, the Supreme Judicial Court of Maine did not apply the strict scrutiny analysis summarized in Part I of the body of this Memorandum. Instead, citing the U.S. Supreme Court decision in Wisconsin v. Yoder, the Court said that the requirement that parents seek the approval of public school authorities for home educational plans was fully justified by the state's "high responsibility" for the education of its citizens.

According to the Court, for the state to allow home education without imposing some standards as to quality and duration would be, in many cases, to allow parents to deprive their children of any education whatsoever. The Court said that not all parents who would hold their children out of school under such an unlimited exception would have the sincere desire to provide their children with adequate instruction. Furthermore, many parents, even though they have a sincere desire to educate their children at home, lack the necessary training and facilities to do so. b. Self- Incrimination

In State v. McDonough, the Court found no merit in the defendants argument that their constitutional privilege against self- incrimination was violated by the prior approval requirement. The Court noted that the privilege against self- incrimination applies only to criminal cases (this case involved a civil violation).

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2. Blount v. Department of Educational and Cultural Services

In Blount v. Department of Educational and Cultural Services, 551 A. 2d 1377 (Maine 1988), the plaintiffs sought a declaration that their home program was in compliance with Maine's compulsory attendance law and that any licensing, powers asserted by the state violated their rights under the Free Exercise of Religion Clauses of the First Amendment of the U.S. Constitution and the Maine Constitution.

a. Free Exercise of Religion

In Blount v. Department of Educational and Cultural Services, the Maine Supreme Court noted that when it affirmed the validity of state regulation of home schooling in State v. McDonough (described immediately above), it observed that the defendants had not argued that the state interfered with their free exercise of religion.

In analyzing the plaintiff's First Amendment claim, the Maine Supreme Court applied the strict scrutiny analysis set forth in Part I of the body of this Memorandum. First, the Court noted that the sincerity of the plaintiffs' religious beliefs was unquestioned. With regard to the second part of the strict scrutiny analysis, the state argued that the plaintiffs had admitted, on cross- examination, that it was not a "fundamental tenet of being a fundamental Christian ... that a parent should teach, must teach their children at home." However, the Court said that the issue was the plaintiffs' beliefs, not those of their co-parishioners, and the plaintiffs' testimony that God had called them to educate their children in their home was perfectly consistent with their testimony that they believed other families have different callings. The Court found that the burden on the plaintiffs' religious exercise was sufficient to trigger the strict scrutiny analysis.

According to the Maine Supreme Court, in applying the strict scrutiny analysis to a state's claim of a compelling interest, the Court must keep in mind that every individual's freedom of religion is itself The most compelling public interests. To justify a regulation that has been shown to diminish that freedom, the state must prove that the social purpose served by the challenged regulation is so essential that the loss of freedom is clearly outweighed by the benefit.

The Maine Supreme Court concluded that, in this case, the state had met its burden. The Court quoted the U.S. Supreme Court in Brown v. Board of Education, 347 U.S. at 493, 74 S. Ct. at 691, for the proposition that education is perhaps the most important function of state and local governments. The Maine Supreme Court stressed that it is important to recognize that the state interest is not simply an interest in education but an interest in the quality of education. According to the Court, it would eviscerate the state's interest in education to restrict it to

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assuring the mere physical presence of school children in some facility purporting to be a classroom.

The Maine Court then concluded that prior approval of home schooling is the least- restrictive means by which the public interest in educational quality can be adequately fulfilled. The Court said that despite its categorical phrasing, the "least- restrictive means" analysis amounts to a balancing test: the state must prove that all less- restrictive means advanced by the plaintiffs would cause too much harm to the public interest in educational quality to justify the increased burden to the plaintiffs' exercise of religion. The state need not meet the impossible burden of proving that no adequate less- restrictive alternative can be developed; it need only show that none has been proposed.

The plaintiffs argued that one less- restrictive means would be to apply the "equivalent instruction" standard which applied to private schools in Maine. Maine law allowed a "non-approved private school" to file an annual letter which constituted sufficient evidence to establish that its students were receiving "equivalent instruction." Maine's rules for home schooling and guidelines for non-approved private schools required teacher competence, compliance with state curriculum and calendar standards and assessment of students' academic progress. The home school rules differed from the guidelines for non-approved private schools by requiring parents to apply to their local school board for approval, providing for closer supervision by local school officials and spelling out more detailed standards.

The Maine Supreme Court characterized the home schooling standards as "flexible," stating that parents could, for example, arrange for the assessment of the child's academic progress by annual standardized tests, by annual examination by a certified teacher or by review under the auspices of an official state or local home schooling advisory board. The Court also found flexible the provision of Maine law which allowed a home schooling program to either have a tutor who was eligible for state certification or be assisted by a satisfactory support system.

The plaintiffs also argued that the state's distinction between home schooling programs and private schools was arbitrary and that any valid reasons the state might have for supervising home schooling more closely than organized private schools could not be sufficiently compelling to allow the state to enforce this distinction against religious conscientious objectors. The Maine Supreme Court disagreed. It said the reason the state may monitor organized schools at a distance is the presence of an active intermediary and monitor - - the parents. Parents, by the nature of things, cannot give their own home schooling program the same arm's- length supervision. According to the Court, the additional burden imposed on home schooling families is far outweighed by the benefit to the public interest in education.

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The Maine Supreme Court also rejected the plaintiff's argument that other states, by their less- restrictive regulation of home schooling, have demonstrated that Maine has not chosen the least- restrictive means of fulfilling its compelling interest in educational quality. The Maine Supreme Court said that these other states' choices are entitled to no more deference than are any other proposed regulatory alternatives. According to the Court, the least- restrictive means need not be the lowest common denominator.

The Maine Supreme Court said that the less- restrictive alternative that the plaintiffs offered as the most promising was reliance on standardized testing. However, the Court said that this would satisfy neither the plaintiffs' interests nor the state's. The plaintiffs had testified that they could submit test scores to a school committee only if this was not part of an approval process. According to the Court, it strained the imagination to envision how testing could function as a substitute for state approval, rather than as a mechanism for approval. What, asked the Court, is the state's interest in having these scores in its archives if it is powerless to take any action on them?

b. Equal Protection

The plaintiffs also made an equal protection claim under the 14th Amendment. The Court said that this claim was a reprise of the plaintiff's previously- discussed argument that the distinction between home schooling programs and private schools is unconstitutional. According to the Court, this distinction had already withstood the plaintiff's strongest attack - -its interference with religious exercise; the distinction did not become any more pernicious by being a "classification" subject to equal protection analysis.

The Court said that the equal protection claim could acquire independent value in this case only if questions regarding the burden on religion were set to one side and the equal protection issue was analyzed simply as an educational decision. In that case, the applicable test would be whether there was a "rational basis" for the distinction. The Court said that having already survived strict scrutiny under the First Amendment, the classification easily passed the rational basis test.

C. MASSACHUSETTS: CARE AND PROTECTION OF CHARLES AND OTHERS

Care and Protection of Charles and Others, 504 N.E. 2d 592 (Mass. 1987), involved an appeal of a determination that children being educated at home were in need of care and protection with respect to their educational care.

Massachusetts law required the school committee of each town to provide for and enforce the school attendance of all children residing in

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the town. In this case, the school committee had accepted the recommendation of the school district superintendent to deny the parents permission to educate their children at home citing three major objections. First, the superintendent had not been given reason to believe that the parents were competent to teach their children. Second, the parents had indicated that the children would spend less time on formal instruction than would children in a public school. Third, the parents objected to the school district's efforts to monitor or observe the instructional methods used in the home school and periodically test the children to determine whether they were making reasonable progress.

1. Right to Direct Child's- Education

The plaintiffs contended that the process for approving home schools in Massachusetts infringed upon their claimed right, under the 14th Amendment, to control the upbringing and education of their own children.

Citing Pierce v. Society of Sisters, 268 U.S. at 535, 45 S. Ct. at 573, and Meyer v. Nebraska, 262 U.S. at 399, 43 S. Ct. at 626, the Massachusetts Supreme Court said that the U.S. Supreme Court has made it clear that the liberty interests protected by the 14th Amendment extend to activities involving child rearing and education. Furthermore, the primary role of parents in upbringing their children is now established beyond debate as an enduring American tradition.

The Court agreed with the parents that they possessed a basic right to direct the education of their children but said that this right is not absolute - - it must be reconciled with the substantial state interest in the education of its citizenry. The Massachusetts Court also agreed with the parents that the state's interest is not in educating all children or in dictating the educational process in the minutest detail, but only in knowing that the children are being educated. However, the Court concluded that the Massachusetts approval process was necessary to promote that substantial state interest. The Court said that, without an approval process, the state would be powerless to assert its interest in the case of a child who is being "otherwise instructed."

The Court did not analyze this claim in terms of the strict scrutiny test set forth in Part I of the body of this Memorandum, but citing the Maine Supreme Court's decision in State v. McDonough, described in Section B, 1, of this Appendix, the Court said that the approval process was necessary to promote the state's substantial interest.

2. Free Exercise of Religion

The Court said that it recognized that the parents had also presented arguments based on the Free Exercise of Religion Clause of the First

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Amendment. However, the Court said that because it concluded that parents have a basic right, under the 14th Amendment, to direct the educational upbringing of their children, it need not address the First Amendment arguments. According to the Court, neither the First Amendment nor the relevant provisions of the Massachusetts Constitution would entitle the parents to any greater protection than the Court granted them in its opinion.

D. OHIO CASE: State v. Schmidt

The plaintiffs in State v. Schmidt, 505 N.E. 2d 627 (Ohio 1987), cert. den., 484 U.S. 942, 108 S. Ct. 327, were "born- again Christians" who believed that it was their undelegable duty as parents to educate their daughter themselves. The defendants were prosecuted for violating Ohio's compulsory attendance law by not sending their daughter to school. The Ohio law required that application be made to the local superintendent of schools for approval of a home education program.

Free Exercise of Religion

The defendants argued that the approval requirement violated their rights to free exercise of religion under the First Amendment.

Applying the strict scrutiny analysis described in Part I of the body of this Memorandum, the Ohio Supreme Court concluded that the defendants failed to demonstrate that the approval requirements of the Ohio law would have infringed upon their right to free exercise of religion. According to the Court, the Ohio law acknowledged the right of parents to educate their children and guarded against the abuse of that right by requiring parents to obtain approval for the home education program from the local school district superintendent. Despite an invitation from the superintendent to discuss their plan for educating their daughter at home, the plaintiffs failed to submit a proposal requesting that approval.

The Ohio Supreme Court refused to speculate as to what the result might have been had the defendants submitted a proposal and refused to presume that the superintendent's actions would have been unconstitutional. The Court said that without an application and proposal from the plaintiffs, there was no way to balance the plaintiffs' right to free exercise of religion against the state's interest. Therefore, the Court did not reach the question of whether the state had a compelling interest or whether that interest could be achieved through a "lesser infringement" on the plaintiff's right to free exercise of religion.

The Court went on to hold that the requirement that parents seek the superintendent's approval for their home education program reasonably

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furthered the state's interest in the education of its citizens and did not infringe upon the free exercise of religion.

See Part D of Appendix II for a brief summary of vagueness and delegation of authority issues raised in this case, regarding Ohio's teacher qualification approval requirement.

E. VAGUENESS AND IMPROPER DELEGATION OF AUTHORITY

In addition to questioning the validity of requiring approval of home schools, two of the cases described above in this Appendix upheld home school approval laws against challenges that they were unconstitutionally vague under the "void for vagueness" doctrine or an improper delegation of authority to the person making the approval decision. These cases include:

1. Blackwelder v. Safnauer, 689 F. Supp. 106 (N.D.N.Y. 1988) (also described in Part A of this Appendix). The Court upheld, against a vagueness challenge, the requirement that minors in home schools receive instruction from a "competent teacher" and that the instruction be at least "substantially equivalent" to that provided students in the public schools. The Court said that the New York home school law was not vague on its face because it was beyond dispute that a parent who withdrew his or her child from public school and afforded that child no education whatsoever would be in violation of the law. With regard to application of the law in this particular case, the Court noted that the law established a comparative standard that made direct reference to the minimum educational standards for the state's public schools. The Court found that the standards governing public schools were sufficiently comprehensible, noting various statutes, regulations and guidelines governing days of instruction, recordkeeping and the substantive content of the studies of public school children.

2. Care and Protection of Charles and Others, 504 N.W. 2d 592 (Mass. 1987) (also described in Part C of this Appendix). Massachusetts law required the school committee of each town to provide for and enforce the school attendance of all children residing in the town. The parents argued that the law was vague because it failed to provide any standards or procedures for approval. The Massachusetts Supreme Court upheld the law, noting that home schools fell under the law's enunciated standard of approval for private schools: that the studies required by law be "equal, in thoroughness and efficiency, and in progress made therein," to those in the public schools in the same town. The statutes also set forth subjects to be taught in public schools and requirements for teacher qualifications. The Court also said that an important factor in a vagueness challenge is whether the law threatens to inhibit the exercise of a constitutionally protected right and the Massachusetts law

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specifically prohibited a school committee from withholding approval of private schools on account of religious teachings.

In Care and Protection of Charles and Others, the parents also argued that the law was an unlawful delegation of legislative power to the superintendent- and the school committee. The Court said that the Legislature may delegate to a board or officer the working out of the details of a policy adopted by the Legislature; although school committees exercised considerable discretion, it was not unbridled.