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This Appendix summarizes 13 cases in which courts have examined constitutional issues related to state requirements that home school teachers be certified or meet other qualifications. With the exception of two of the "vagueness" cases summarized in Part D of this Appendix, all of the teacher qualification requirements examined in these cases were upheld.

A. MICHIGAN CASES

1. Hanson v. Cushman

In Hanson v. Cushman, 490 F. Supp. 109 (W.D.S.D. Mich. 1980), the Federal District Court for the Western District of Michigan, Southern Division, upheld a Michigan law requiring state certification of all persons who give instruction to children in the state, as that law applies to home schools. The plaintiffs brought an action under 42 U.S.C. s. 1983, alleging the deprivation under color of state law of rights protected by the U.S. Constitution.

a. Right to Direct Child's Education

The plaintiffs claimed that the parental right to control the education of their children was protected by the penumbras of the first nine Amendments and the 14th Amendment to the U.S. Constitution. The District Court stated that the case "stands or falls" on the plaintiffs' argument that the claimed right to control the education of their children rises to the level of a fundamental constitutional right. According to the Court, the plaintiffs cited no cases holding that parents have a fundamental constitutional right to educate their children in their home nor had the Court's own research uncovered any such cases. Rather, according to the Court, the plaintiffs attempted to establish their right through reliance upon dicta from several U.S. Supreme Court decisions, including Meyer v. Nebraska and Pierce v. Society of Sisters. In addition, the District Court noted that the plaintiffs relied on Wisconsin v. Yoder. However, the District Court distinguished the plaintiffs' claim from the claims of the Amish in Wisconsin v. Yoder stressing that the plaintiffs' claim was not based on religious belief.

The District Court concluded that the plaintiffs' claimed right to educate their children through a program of home study free from the requirement of compliance with the teacher certification law did not rise above a "personal or philosophical choice" and, therefore, was not within the bounds of constitutional protection. The Court said that the plaintiffs had established no fundamental right that was abridged by the

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Michigan law. Thus, the state did not need to demonstrate a "compelling interest" but only that it acted "reasonably" in requiring children to attend school and requiring that children be taught only by certified teachers.

b. Equal Protection

The plaintiffs also made an equal protection claim, arguing that the state was treating parents who wished to educate their children at home differently depending upon whether or not the parents were certified teachers.

The District Court said that this distinction did not have any adverse impact peculiar to a member of a constitutionally protected suspect class and no "fundamental" right was involved. Therefore, the traditional standard of review used in equal protection cases required only that there be a "rational relationship" between the distinction being made between the two classes of parents and a legitimate state purpose.

The Court found such a rational relationship based upon the difficulty and expense that the state would have in examining and supervising a "host of facilities and individuals, widely scattered," who might instruct their children at home without certification, as compared to the less difficult and less expensive mechanism of requiring certification. According to the District Court, this clearly satisfied the state's burden of acting "rationally and reasonably."

2. People v. De Jonge

The defendants, in People v. De Jonge, 179 Mich. App. 225, 449 N.W. 2d 899 (1989), were parents who had been found guilty of violating Michigan's compulsory attendance law. The case involved children who were taught at home through a program administered by the Church of Christian Liberty and Academy of Arlington Heights, Illinois. The parents contended that Michigan's teacher certification requirement violated their First Amendment right to free exercise of their religious beliefs and their 14th Amendment fundamental right to educate their children.

a. Free Exercise of Religion

Examining the defendants' free exercise of religion claim, the Michigan Court of Appeals substantially followed the strict scrutiny analysis set forth in Part I of the body of this Memorandum. However, the Court referred to a "less obtrusive" form of regulation, rather than the "least- restrictive" means.

The Michigan Court found that the defendants had a sincere religious belief that they had the sole responsibility and authority to educate

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their children. However, the Court also found that the burden imposed on the defendants' religious beliefs by the teacher certification requirement was minimal. The Court noted that the defendants' religious beliefs did not prohibit them from hiring certified teachers and the defendants had failed to show that they could not hire a certified teacher who met their qualifications. The Court also said that all of the state certification requirements could be fulfilled through attendance at either religious or nonreligious institutions and that the teacher certification regulations did not require anyone to attend courses taught from a perspective contrary to their beliefs. Therefore, the Court held that the infringement on free exercise rights was minimal and outweighed by the state's interests.

In addition, the Court of Appeals held that the state has a compelling interest which justifies the "minimal" burden on religious freedom imposed by teacher certification. The Court noted Michigan's intense concern about the quality of education of its citizens stating that such concern has been evident in each of its Constitutions, its case law and a long line of legislative enactments.

With regard to the fourth element of the four- part strict scrutiny analysis, the Michigan Court of Appeals held that the certification requirement was the least- obtrusive means of achieving the state's interest. According to the Court, the defendants did not propose an alternative and based their position on the assertion that most other states do not require certified teachers in home schools. The Court said that the defendants argued, implicitly, that curriculum and attendance requirements were sufficient to protect the state's interests.

The Court disagreed. According to the Court, curriculum and attendance requirements ensure that the student and the educational material are in the same place at the same time. However, they do nothing to ensure that the material is imparted to the child in such a way as to be understandable. Alone, curriculum and attendance requirements are unlikely to stimulate intellectual curiosity and inquiry or creative thought. The Court said that state licensure would not guarantee quality teachers but one could not ignore the "high likelihood" that a person who meets the qualifications for certification has absorbed the knowledge a competent teacher should have.

b. Right to Direct Child's Education

The Court said that since it had determined that the certification requirement did not violate the rights of free exercise of religion under the First Amendment, it need not analyze the defendants' claim to a 14th Amendment right to educate their children at home. According to the Court, there is no stricter standard of review than that imposed by the First Amendment.

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However, the Court went on to express its disagreement with the defendants' assertions as to the applicable standard of review where the issue is the parents' right to control their children's education. Citing Hanson v. Cushman (summarized above in this Appendix), the Court said that the correct test is whether the state's regulation bears a "rational relationship to some legitimate state purpose," not whether governmental regulation is justified as necessary to achieve a compelling state interest. The Court said that the state certification requirement met the rational relationship standard.

3. Clonlara v. Runkel

The plaintiffs in Clonlara v. Runkel, 722 F. Supp. 1442 (E.D.S.D. Mich. 1989), brought a federal civil rights action under 42 U.S.C. ss. 1983, 1985 and 1986, alleging a deprivation of the right to educate their children at home, denial of due process and a conspiracy to violate their civil rights.

a. - Right to Direct Child's Education

The plaintiffs alleged that they had a fundamental right to privacy, protected by the Due Process Clause of the 14th Amendment, which includes a right to raise , nurture and control the education and upbringing of their children.

The Federal District Court for the Eastern District, Southern Division, Michigan cited the Federal District Court's decision in Hanson v. Cushman (summarized above in this Appendix) for its analysis of the U.S. Supreme Court decisions in Pierce v. Society of Sisters, Meyer v. Nebraska and Wisconsin v. Yoder. In addition, in Clonlara, the Court emphasized that, in Wisconsin v. Yoder, the U.S. Supreme Court characterized the fundamental right involved as the right to direct their child's religious upbringing, not their child's education per se.

Rejecting a strict scrutiny analysis, the Court said that no case has yet found a generalized right to privacy under the Constitution which would allow parents to home school their children free from reasonable government regulation. According to the Court, the plaintiffs neither alleged nor argued that the requirement that home schooled children be taught by certified teachers was unreasonable. The Court had not been asked to and did not reach the question concerning the reasonableness of such a regulation.

b. Equal Protection

The plaintiffs also made an equal protection claim, under 42 U.S.C. s. 1985 (3), alleging that they were members of a class of people who

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wished to provide for their children's education at home. The Court said that the statute only applied to "class- based invidiously discriminatory animus"; that is, the class must be based on race, ethnic origin, sex or religion.

According to the Court, the classes protected by 42 U.S.C. s. 1985 (3) are rooted in traditional equal protection analysis. Thus, the Court held that the plaintiffs could not sustain this claim under 42 U.S.C. s. 1985 (3).

B. NORTH DAKOTA CASES

1. State v. Patzner

The defendants in State v. Patzner, 382 N.W. 2d 631 (N.D. 1986), cert. den., 469 U.S. 825, 107 S. Ct. 99, were parents who had refused to send their children to school and instead sought to educate them in their homes. The parents were convicted of violating North Dakota's compulsory attendance laws. NThe parents was a certified teacher or certifiable under the North Dakota law, nor were their children being taught by certified teachers in the homes.

a. Free Exercise of Religion The parents asserted that the state certification requirement was a violation of the Free Exercise of Religion Clause of the First Amendment.

In State v. Patzner, the North Dakota Supreme Court set forth the applicable analysis as a three- part test, rather than the four- part strict scrutiny analysis summarized in Part I of the body of this Memorandum. The difference between the North Dakota Supreme Court's statement of the test and the statement given in Part I of the body of this Memorandum relates to the third and fourth elements of the test as stated in Part I. The North Dakota Supreme Court replaced those elements with the requirement that the state have a compelling interest in the regulation which justifies the burden on the free exercise of religion and "overrides the interest" of the parents in exercising their religious practices. However, in applying its test, the North Dakota Supreme Court indicated that the state must bear the burden of demonstrating the unavailability of less restrictive means of achieving its aims. In State v. Patzner, there was no dispute that the parents' decisions to educate their children in their homes were motivated by sincerely- held religious beliefs. However, the state contended that the defendants failed to establish that the compulsory attendance statutes imposed a burden upon the free exercise of their religious beliefs. The Court disagreed, noting that the claim made was that the parents' religious beliefs dictated that they educate their children at home, but the parents

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did not have and could not, without substantial hardship, obtain the educational requirements necessary for teacher certification and state approval of their home schools.

After finding a burden on the defendants' religious beliefs, the Court said that its next inquiry was whether there was a state interest of sufficient magnitude to "override the interest" claimed to be protected under the Free Exercise of Religion Clause. As discussed above, the Court said that only a compelling state interest can justify burdening the free exercise of religion and the state must bear the burden of demonstrating the unavailability of less restrictive means of achieving its aims.

The Court had no trouble finding a compelling state interest. It noted that the state's interest in the education of its children had been characterized by the U.S. Supreme Court as " perhaps the most important function of state and local governments" [citing Brown v. Board of Education, 347 U.S. at 493, 74 S. Ct. at 6911. Also, the Court said that the circumstances in this case lacked the exceptional circumstances present in Wisconsin v. Yoder. Among other distinctions, the Court said that the defendants, unlike the Amish, were not members of a community with a long history of being a successful, self- sufficient segment of society.

The defendants argued that the state had failed to meet its burden of showing that the teacher certification requirement constituted the "least- restrictive means" of ensuring that its primary interest in the education of children was met. The defendants claimed that teacher certification could not be the least- restrictive means because most other states in the country had done away with teacher certification requirements for home and private schools.

The Court reviewed other means of achieving the state's interests. It said that standardized testing does not reveal possible deficiencies until the end of a school term and would likely not satisfy the state's interest. It noted that some states had enacted educational "equivalency statutes" in an attempt to accommodate home schools without requiring certification of parents, but that such statutes had undergone numerous vagueness challenges. The Court also said that having local or state officials make subjective evaluations of parents' ability or lack of ability to teach their children might very well be considered a more restrictive or intrusive measure of gauging the parents' qualifications as educators than the teacher certification requirement.

In conclusion, the Court found that the balance in this case was in favor of the state teacher certification requirement.

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2. State v. Anderson

In State v. Anderson, 427 N.W. 2d 316 (N.D. 1988), cert. den., U.S. , 109 S. Ct. 491, the defendants appealed their convictions for violating North Dakota's compulsory attendance law. Among other things, they contended that the North Dakota teacher certification and advance governmental approval requirements violated both the Establishment Clause and the Free Exercise of the First Amendment to the U.S. Constitution.

a. Free Exercise of Religion

In making their claim that the compulsory school attendance law violated the Free Exercise of Religion Clause of the First Amendment, the defendants attempted to differentiate their case from State v. Patzner (summarized above in this Appendix). Based on a study done at the request of the North Dakota Superintendent of Public Instruction, the defendants argued that the state's own experts now conceded that less restrictive alternatives would satisfy the state's compelling interest in education.

In rejecting this argument, the North Dakota Supreme Court said that it was not persuaded that the proposals necessarily provided less restrictive alternatives which satisfied the state's compelling interest in education and avoided excessive entanglement of government with religion proscribed by the Establishment Clause of the First Amendment (discussed below). Accordingly, it adhered to its decision in State v. Patzner that teacher certification does not violate the Free Exercise of Religion Clause of the First Amendment.

b. Establishment of Religion

The defendants also claimed that the North Dakota certification and approval requirements violated the Establishment Clause of the First Amendment, which prevents Congress or the states from enacting laws respecting the establishment of religion (i.e., requires separation of church and state).

After summarizing the three- part test set forth in Part IV of the body of this Memorandum, the North Dakota Supreme Court discussed a U.S. Circuit Court of Appeals decision in Stark v. St. Cloud State University, 802 F. 2d 1046 (8th Cir. 1986). In that case, St. Cloud University, a Minnesota public university, permitted students seeking to become licensed teachers to fulfill student teaching requirements by instructing at a parochial high school. Under the circumstances of the case, the Court of Appeals concluded that the participating parochial schools were pervasively sectarian institutions and that the University student- teaching program could not help but communicate a message of government endorsement of the parochial schools and their religious messages.

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Next, the North Dakota Supreme Court described the U.S. Supreme Court's decision in Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232 (1985). In that case, New York City used federal funds to pay salaries of public school employees who taught in parochial schools and were supervised by field personnel who made at least one unannounced visit per month. The field supervisors reported to program supervisors who also made occasional unannounced visits to monitor classes in parochial schools. The U.S. Supreme Court held that this program violated the Establishment Clause because the state supervision and administrative cooperation required to monitor the educational program required permanent and pervasive state presence in the sectarian school receiving aid, thus, entangling the church and state in a way that violated the Establishment Clause.

The North Dakota Supreme Court found that the North Dakota's home school teacher certification and approval requirements did not present the same problems as the cases just described, stating (without detailed analysis of the specific requirements of the North Dakota law) that the requirements did not have a primary effect of advancing or inhibiting religion and did not foster an excessive entanglement with religion.

Citing the U.S. Supreme Court in Lemon v. Kurtzman, supra, the North Dakota Supreme Court said that the Establishment Clause does not call for a total separation between church and state; some relationship between the government and religious organizations is inevitable. Specifically, the Court quoted the U.S. Supreme Court's statement that: "Fire inspections, building and zoning regulations, and state requirements under compulsory school- attendance laws are examples of necessary and permissible contacts" [emphasis added; Lemon v. Kurtzman, 403 U.S. at 614, 91 S. Ct. at 2112].

3. State v. Melin

In State v. Melin, 428 N.W. 2d 227 (N.D. 1988), cert. den., _U.S.

109 S. Ct. 367, the state appealed from a trial court's dismissal of a complaint charging the defendants with violating North Dakota's compulsory school attendance law.

Free Exercise of Religion

Among other things, the defendants in State v. Melin argued that North Dakota's teacher certification requirement infringed upon their First Amendment right to freely exercise their religion. As in State v. Anderson, these defendants argued that new evidence differentiated their case from State v. Patzner, citing the study done for the Superintendent of Public Instruction. The Court again rejected that argument, this time noting that the Legislature had declined to adopt those recommendations when they were submitted to it in the 1987 North Dakota Legislative Session. Again, the North Dakota Supreme Court adhered to its holding in State v. Patzner.

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4. State v. Toman

In State v. Toman, 436 N.W. 2d 10 (N.D. 1989), defendants appealed their convictions for violations of the North Dakota's compulsory school attendance law.

Free Exercise of Religion

The issues raised by the defendants on appeal was that the teacher certification requirement for religious schools was not the least- restrictive alternative to achieving the state's interest in providing adequate education for children. The North Dakota Supreme Court said that this issue had been resolved by the Court in prior decisions, citing State v. Anderson and State v. Patzner.

C. ALABAMA CASE: JERNIGAN V. STATE

In Jernigan v. State, 412 So. 2d 1242 (C.C.A. Ala. 1982), the Court of Criminal Appeals of Alabama reviewed the defendants' conviction for causing their children's truancy, dependency or need of supervision based on the defendant's failure to send the children to school in compliance with Alabama's compulsory school attendance law. The defendants were practicing Catholics who belonged to a Catholic Order called the Society of St. Pius X. The educational doctrines of their order were based on the traditional Catholic position that the education of children is a primary responsibility of the parents and that the children should be brought up in a Catholic educational environment. Based on their religious convictions, the defendants refused to send their children to the local public school. There was no parochial school in the county in which the defendants lived. The defendants began educating their children at home using a Catholic correspondence course.

Mrs. Jernigan, who was instructing the children, was unable to qualify under Alabama law as a "private tutor" because she did not have a college degree or formal educational training which would allow her to qualify for a teacher's certificate.

1. Free Exercise of Religion

The defendants asserted that the state must permit them to educate at home as an incident of their right to free exercise of religion. In reviewing this claim, the Alabama Criminal Court of Appeals did not apply the strict scrutiny analysis described in Part I of the body of this Memorandum. Instead, it discussed the case in terms of the U.S. Supreme Court's decisions in Wisconsin v. Yoder and Meyer v. Nebraska.

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The Alabama Court of Criminal Appeals said that, while the sincerity of the defendants' beliefs was not questioned, other aspects of this case were significantly different from those in Wisconsin v. Yoder . The Alabama Court noted, among other things, that the Amish parents in Wisconsin v. Yoder did not object to elementary education through the first eight grades. According to the Court, the defendants sought to exempt their children from all public education without any showing that the home education they practiced was an adequate substitute or replacement. Also, according to the Court, there was no indication of Mrs. Jernigan's competence or ability to teach her own children other than the bare fact that she had a high school diploma. The Court said that, unlike the Amish parents in Wisconsin v. Yoder, the defendants had not demonstrated that their home teachings were successful in preparing their children for life, that their entire way of life is inextricable from their religious beliefs or that public schooling would substantially interfere with their religious practices.

Balancing the interests of the state against the religious interests asserted by the defendants, the Alabama Court held the teacher certification requirements did not violate any First Amendment right of freedom of religion.

2. Right to Direct Child's Education

In addition to their religious claims, the defendants, in Jernigan v. State, made a 14th Amendment argument that their liberty, privacy and family integrity were violated by the teacher certification requirement..

The Alabama Criminal Court of Appeals rejected this claim citing the U.S. Supreme Court's decision in Meyer v. Nebraska, 262 U.S. at 400, 43 S. Ct. at 627, for the proposition that education of the young is only possible in schools conducted by specially-qualified persons who devote themselves to educating the young. The Alabama Court found that statement to be equally true for children who receive their education in the home and an ample justification for what it characterized as the state's "reasonably narrow requirement" of certification. The Court also found that there was no unreasonable unconstitutional interference with the right to family integrity.

D. VAGUENESS AND IMPROPER DELEGATION OF AUTHORITY

Rather than, or in addition to, questioning the validity of imposing teacher certification or other teacher qualification requirements, a number of cases have raised the question of whether requirements relating to home school teacher qualifications (other than certification) are unconstitutionally vague under the "void for vagueness" doctrine or an improper delegation of authority to the person making the determination

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regarding whether a teacher is qualified. These issues arise under the Due Process Clause of the 14th Amendment to the U.S. Constitution. These cases include:

1. State v. Riddle, 285 S.E. 2d 359 (W. Va. 1981). The Supreme Court of Appeals of West Virginia upheld, against a vagueness challenge, a provision of West Virginia's law which required that instruction in home be conducted by persons who, in the judgment of the county superintendent and county board of education, were qualified to give instruction in the topics to be taught in the free elementary schools of the state. The Court upheld this law characterizing the requirement as "flexible" rather than vague. The Court said that the requirement was sufficiently definite that an arbitrary and capricious refusal to grant approval to qualified instructors could be corrected by an action for a declaratory judgment or an action in mandamus (e.g., an action to compel an office to great approval).

2. State v. Newstrom, 371 N.W. 2d 525 (Minn. 1985). Minnesota law required that private schools (including home schools) be taught by teachers whose qualifications were "essentially equivalent" to the minimum standards for public school teachers of the same grades or subjects. The Minnesota Supreme Court held that the law was unconstitutionally vague for the purpose of imposing a criminal penalty. The Court said that the law could not be read as requiring teachers to meet formal education criteria, even though to do so would cure the law of lack of specificity.

3. State v. - Schmidt, 505 N.E. 2d 627 (Ohio 1987), cert. den., 484 U.S. 942, 108 S. Ct. 327. Ohio law authorized school districts to make initial determinations as to who was qualified to give home instruction and required parents to receive approval from the local school district superintendent before removing a child from school to a home education program. Ohio law required instruction in a home education program to be given by a person qualified to teach the branches in which instruction was required and such additional branches as the advancement and needs of the child, in the opinion of the local superintendent, required. The Ohio Supreme Court upheld those requirements against challenges of vagueness and improper delegation of authority. According to the Court, Ohio law gave the superintendents an intelligible principle for guidance and the desirable flexibility to accommodate home school programs. Also, an arbitrary and capricious refusal by a superintendent could be corrected under the law's appeal procedures.

4. Blackwelder v. Safnauer, 689 F. Supp. 106 (N.D.N.Y. 1988). New York law provided that minors taught outside the public school system must receive instruction that was at least "substantially equivalent" to that provided students in the public schools from a "competent" teacher. The Federal District Court distinguished this law from the Minnesota law struck down in State v. Newstrom on the basis of the extensive regulations promulgated by the New York Department of Education and the ability of

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home schooling parents to clarify the meaning of a regulation and modify their behavior, either through their own inquiry or through an administrative process. [Also, see the descriptions of this case in Parts A and E of Appendix I.]

5. Jeffrey v. O'Donnell, 701 F. Supp. 519 (N.D. Penn. 1988). The Pennsylvania statute provided that instruction provided by a "properly qualified private tutor" would be considered as compliance with the compulsory attendance law. The Pennsylvania Department of Education issued regulations which lacked a definition of "qualified private tutor." In striking down the Pennsylvania law, the Court distinguished it from the New York law examined in Blackwelder v. Safnauer on the basis of the lack of clarifying regulations.