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STANDARDIZED TESTING

This Appendix summarizes the decision of the U.S. Court of Appeals for the 8th Circuit upholding an Arkansas requirement that standardized tests be given to home school students under the supervision of a test administrator.

ARKANSAS CASE: MURPHY V. ARKANSAS

The plaintiffs in Murphy v. Arkansas, 852 F. 2d 1039 (8th Cir. 1988), were Evangelical Christians who believed that Christian scriptures required them, as parents, to take personal responsibility for every aspect of their children's training and education. They challenged Arkansas laws relating to home schools as violating their rights under the Free Exercise of Religion Clause of the First Amendment and the Equal Protection Clause of the 14th Amendment. They also alleged a violation of their constitutional right to privacy.

1. Free Exercise of Religion

The parties stipulated that the Arkansas testing requirements interfered with the plaintiffs' sincerely- held religious beliefs. Thus, the Court said that the resolution of the plaintiffs' claim under the Free Exercise of Religion Clause of the First Amendment involved answering two questions: does the state have a compelling interest in the education of all children and, if so, is the statutory scheme the least- restrictive means of achieving that objective?

Citing the Northwest Ordinance, the U.S. Supreme Court decisions in Wisconsin v. Yoder, 406 U.S. at 221, 925 S. Ct. at 1536, Brown v. Board of Education, 347 U.S. at 493, 74 S. Ct. at 691, and Board of Education v. Allen, 392 U.S. at 245- 46, 88 S. Ct. at 1927- 28, the Court of Appeals said that it is settled beyond dispute, as a legal matter, that the state has a compelling interest in ensuring that all its citizens are being adequately educated.

Examining the question of whether the testing requirement was the least- restrictive means to achieve the state's interest, the Court said that the state must have a mechanism by which it can confidently and objectively be assured that its citizens are being adequately educated. According to the Court, upon examination, it would appear that Arkansas created the least- restrictive system possible to assure its goal. By providing the option of home schooling, Arkansas allowed parents vast responsibility and accountability in terms of their children's education - - control far in excess of that required under previous cases. [The Court cited its previous decision in Fellowship Baptist Church v.

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Benton, 815 F. 2d 485 (8th Cir. 1987), upholding Iowa's teacher certification requirement as it applied to private "church" schools; and the lower court's decision in that case, upon remand, upholding regulations prescribing curriculum in such schools, 678 F. Supp. 213 (S. Ct. Iowa 1988).]

The Court said that even regarding the standardized testing requirement, the State of Arkansas allows wide latitude to the parents. Parents may choose a test administered from a list of nationally-recognized standard achievement tests and may be present when the test is being administered.

Finally, the Court said that the plaintiffs made no showing, as made by the Amish in Wisconsin v. Yoder, that the state can be assured that its interest will be attained if their religious beliefs are accommodated. The Court specifically rejected the plaintiffs' argument that parental testing of children provides a sufficient safeguard to assure the state's interest. Similarly, the Court said that parental affidavits concerning the children's progress would be insufficient.

2. Equal Protection

The plaintiffs argued that the Arkansas law violated the Equal Protection Clause of the 14th Amendment. Specifically, they claimed that those who school their children at home for religious reasons are a

suspect class or, alternatively, that parental control over a child's education involves a fundamental right. They argued that because the law discriminated against this class or burdened this right, it failed the strict scrutiny test of the Equal Protection Clause.

The plaintiffs made an additional equal protection argument based on the features of the Arkansas law which required various filings with the local school district superintendent, testing by the state and remedial action for unsatisfactory test results, while no such requirements were imposed on persons who educated their children in public or private schools. Also, the plaintiffs noted that although Arkansas public schools are subject to pervasive regulation, private schools in Arkansas are virtually free of any such supervision. Thus, the plaintiffs contended that the state appeared to "irrationally" allow parents to educate their children in religious private schools without any state regulatory supervision, but subjected children schooled at home to various requirements.

The Circuit Court of Appeals said that it could be argued that the Arkansas law, while superficially neutral, had a discriminatory impact on the category of deeply religious individuals impelled by their convictions to school their children at home. However, the Court said that even if such discriminatory impact was shown, it would not be sufficient to invoke

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strict scrutiny. The plaintiffs would still bear the burden of proving discriminatory purpose or intent and no such showing had been made.

The Court of Appeals also rejected the argument that strict scrutiny be applied to the equal protection claim because a fundamental right was involved. The Court said that no persuasive arguments had been advanced that there was a fundamental right of parents to supervise their children's education to the extent that the plaintiffs contended. According to the Court, recognition of such a right would "fly directly in the face" of cases in which the U.S. Supreme Court has recognized a broad power of the state to compel school attendance and regulate curriculum and teacher certification, citing Board of Education v. Allen, 392 U.S. at 245- 46, 88 S. Ct. at 1927- 28; Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S. Ct. at 571, 573. Thus, the Court did not apply strict scrutiny to the equal protection claim.

The Court then addressed the question of whether there was a rational reason to subject home schooling to regulatory requirements, while at the same time freeing private schools from virtually any regulation. The Court said that this step by the Arkansas Legislature may, at first glance, offend common sense and, sitting as a Legislature, the Court might not have made the same decision. However, the Court said that it could be argued that the notion of an actual independent school away from home implies more formality and structure than a home school. This could lead the state to believe that more serious instruction would be occurring in the independent school than in the relaxed atmosphere of a child and parents in their home.

In addition, the Court said that the notion that more than one family is likely to be sending their children to the private school may provide an additional objective indication of the private school's quality that is not present in the context of individual home schools.

Finally, the Court said that, unlike a home school, parents sending a child to a private school have to pay money for education and, therefore, would be more likely to demand their money's worth of instructional quality from the private school.

3. Right to Direct Child's Education

The Court of Appeals rejected the plaintiffs' argument that the "right of privacy" should be extended to protect parental decisions concerning the direction of a child's education from state interference. The Court of Appeals said that the U.S. Supreme Court had specifically rejected this contention, acknowledging the power of the state to reasonably regulate all schools [citing Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586 (1976)].

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This Appendix summarizes a portion of a case in which the Federal District Court for the Northern District of New York reviewed whether required on- site inspections of home schools, by public school authorities or mutually agreed- upon third parties, were "unreasonable searches" under the 4th Amendment to the U.S. Constitution.

NEW YORK CASE: Blackwelder v. Safnauer

As described in Part A of Appendix I, the New York law challenged in Blackwelder v. Safnauer, 689 F. Supp. 106 (N.D.N.Y. 1988), required that educational services provided to a minor "elsewhere" than at a public school 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 resided. The law was enforced through on- site visits by public school authorities or mutually agreed- upon third parties. The plaintiffs argued that the on- site visits violated their right to privacy guaranteed by the 4th and 14th Amendments to the U.S. Constitution and violated the Establishment Clause of the First Amendment allowing excessive intrusion by public school officials into the operation of religious schools.

1. Unreasonable Search

The 4th Amendment prohibits "unreasonable searches and seizures" and provides that no warrant shall be issued "but upon probable cause, supported by oath or affirmation." The 4th Amendment's prohibitions have been made applicable to states through the Due Process Clause of the 14th Amendment.

The defendant school districts had a policy of making final approval of home schooling programs contingent upon the results of one or two scheduled on- site visits made while home instruction was in progress by representatives of the school districts or mutually acceptable third parties. There was no specific provision in the New York law requiring such on- site visits, nor was there a specified procedure through which a superintendent could obtain an administrative warrant to conduct such a visit if the parents refused to consent to the visit.

The District Court indicated that, for the purposes of the 4th Amendment, a "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. In analyzing this case, the Court first noted that, by utilizing their homes as schools, the plaintiffs did not forfeit all reasonable expectations of privacy in their homes. Thus, the Court had to determine whether conditioning an approval

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of home schooling programs on such visits was an "unreasonable search" within the meaning of the 4th Amendment when there was no procedure through which a warrant authorizing such visits could be obtained from a neutral judicial officer. The Court said that, except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable," unless it has been authorized by a valid search warrant.

The Court said that, in those classes of cases in which the U.S. Supreme Court has held that an invasion of 4th Amendment privacy interests may be deemed "reasonable" without the benefit of a warrant, the public interest in permitting warrantless searches has been found to outweigh the individual privacy interests implicated by the search. The Court went on to say that three established exceptions to the warrant requirement were arguably applicable to the home school visits and concluded that one of those exceptions was applicable in this case. That exception applied to searches conducted with the consent of the party whose privacy interest is implicated.

According to the Court, the school districts pointed out that they had never conducted forceful inspections of the premises of home schoolers who refused to allow such visits. The home schoolers asserted, however, that by refusing to approve home schooling programs without first conducting an on- site inspection, the superintendents were using the powers vested in them by law to coerce the waiver of the plaintiffs' 4th Amendment rights.

In analyzing the application of the consent exception to this case, the District Court said that plaintiffs may have a right protected by the U.S. Constitution to teach their children at home, but that right is not unqualified. According to the Court, in Pierce v. Society of Sisters, 268 U.S. at 534, 45 S. Ct. at 569, the U.S. Supreme Court indicated that it would be permissible for a state to condition such a right on the ability of its officials to conduct reasonable inspections.

The District Court also noted that the on- site visits were infrequent, were limited to the area in the home in which instruction was given, and were conducted only at a mutually agreed- upon time. More importantly, the refusal of the school district to approval of a home schooling program without first conducting on- site visits did not necessarily mean that a finding of educational neglect was unavoidable. Under the compulsory attendance law, parents had the burden of demonstrating that their children were receiving an education substantially equivalent to that offered in the public schools. Obtaining the local school superintendent's approval of a home schooling program was one way to discharge that burden but not necessarily the only way. The parents still had an opportunity to convince a family court judge that their children were receiving an education meeting minimum state standards in an educational neglect proceeding. Thus, by refusing to consent to

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on-site visits, parents did not necessarily forfeit their "right" to teach their children at home. The Court concluded by saying that, under these circumstances, it could not find that the ability of plaintiffs to freely and voluntarily consent to on- site inspections had been impaired.

2. Establishment of Religion

This portion of the Court's decision is described in Part A, 3, of Appendix I.

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DECISION-MAKER

This Appendix summarizes four cases in which courts examined home school parents' claims that their rights to procedural due process, under the 14th Amendment, were violated by the role of local public school officials in approving or making decisions relating to home schools. The arguments in three of the cases were based on the concept that a conflict of interest exists when a public school district receives state funds based on the number of pupils enrolled in the school. In the remaining case, the parents argued that the local public school district was the "institutional opponent" of home schoolers. In each of the four cases summarized in this Appendix, the courts found no conflict of interest.

A. NEW YORK CASE: Blackwelder v. Safnauer

In Blackwelder v. Safnauer, 689 F. Supp. 106 (N.D.N.Y 1988) (facts summarized under Part A of Appendix I), the plaintiffs argued that by entrusting approval of their home schooling programs to local school officials, the New York law violated their procedural due process rights, under the 14th Amendment, to an impartial decision- maker. Specifically, the plaintiffs argued that, because certain school districts in New York received state funds on a per- pupil basis, local school officials had an incentive to disapprove home instruction programs so that enrollments would be increased in their districts.

The Federal District Court for the Northern District of New York said that a challenge to procedures used by state actors in reaching a decision implicating the interests of private parties requires a balancing of those private interests against the state's interest in the challenged procedure. The Court also noted that different standards would apply depending upon whether or not the official's decisions were adjudicative in nature. However, the Court said that, in this case, it was unnecessary to resolve the question of whether the superintendents performed adjudicative functions in assessing home schooling programs. According to the Court, even if it was assumed that they did perform such functions, the plaintiffs had failed to show that their interest in having their home school program assessed by an "impartial" adjudicator was threatened.

First, the Court said that school district officials involved with the evaluation of home school programs did not have a personal financial stake in the decision made.

Second, the Court said that the plaintiffs had failed to demonstrate that there was any "official motive" for New York superintendents to disapprove home instruction programs, or even a perceptible tendency for them to do so, in order to increase their school districts' funding. Specifically, the Court noted that the costs of educating a child in each

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of the school districts whose superintendents were defendants exceeded the amount of state aid that those districts received for each child enrolled in their schools. Also, the Court said that even assuming that a financial incentive did exist, a school superintendent in New York is not responsible for assuring that the money necessary to run his or her school system is provided - - school boards have that responsibility.

Finally, according to the Court, nothing in the record indicated that, if children attending home instruction were enrolled in public schools, the incremental increase in state aid that might result would be so great as to be considered substantial and vitally important to the fiscal well- being of the school districts.

B. NORTH DAKOTA CASES

1. 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. Their contentions was that the North Dakota law authorized a financially

interested decision- maker, the local school board, to determine whether a student would be excused from public school attendance. Specifically, the defendants asserted that the school district in which they resided received between $1,200 and $1,900 in foundation aid payments from the state for each student attending public school. Therefore, the local school board had a financial interest in not excusing students from the compulsory school attendance law. This, according to the defendants, violated the Due Process Clause of the 14th Amendment.

In assessing the defendants' claim, the North Dakota Supreme Court stressed that the Due Process Clause entitles a litigant to an impartial, neutral and disinterested tribunal in both civil and criminal cases. However, the Court said that if a statute is susceptible of two constructions, one of which would render it of doubtful constitutionality and one which would not, the latter construction must be adopted. In order to remove any doubt of due process infirmities under the North Dakota law, the Court construed the law to require the local school board

to "monitor" whether a school- age child was attending an approved school. According to the Court, attendance at an approved private or parochial school automatically satisfied the compulsory attendance law and the local school board's act was a ministerial function rather than a discretionary, decision- making function.

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2. State v. Brewer

In State v. Brewer, 444 N.W. 2d 923 (N.D. 1989), the defendants appealed their conviction for violating North Dakota's compulsory attendance law. The defendants had applied for a "physical or mental condition" exemption from the compulsory school attendance law for their daughter. A four-person multi-disciplinary team reviewed that request but did not reach a consensus on whether the daughter was entitled to the exemption. After reviewing a transcript of the meeting of the multi-disciplinary team, the local school board denied the defendant's request for an exemption. The defendants appealed to the county superintendent of schools who affirmed the school board's decision. The defendants then appealed to the State Superintendent of Public Instruction who also affirmed the decision. The defendants then applied for an "economic hardship" exemption from the compulsory school attendance law and the local school board denied that request.

In this case, the defendants argued that the local public school district was the "institutional opponent" of home schoolers. According to the defendants, local public school boards, their employees, agents and state education officials are all advocates of public education; the very nature of their positions demands a high degree of loyalty to both the form and philosophy of public schools. The defendants said that religious home schoolers reject such education and, regardless of the monetary gain or loss that each home schooler represents to a public school, public school officials have a total lack of impartiality with regard to decisions in disputes between public schools and those who wish to reject public school services.

The North Dakota Supreme Court declined to hold, as a matter of law, that the probability of actual bias on the part of public school officials approaches a constitutionally impermissible level. Also, the Court said that there was no factual evidence in the record of this case which reflected an actual bias on the part of the particular school board officials. [The Court also said that it did not believe that the "economic hardship" and "physical and mental condition" exemptions were applicable to the factual situation in State v. Brewer].

C. MICHIGAN CASE: PEOPLE V. DE JONGE

In People v. De Jonge, 179 Mich. App. 225, 449 N.W. 2d 889 (1989), the defendants appealed their convictions for violating Michigan's compulsory attendance law. They argued that the compulsory attendance law denied them the right to a neutral magistrate. The defendants claimed that their children could not be compelled to attend a public school or an approved private school until after a statutorily- required hearing established that their home school did not comply with the Michigan law.

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This hearing would be held and the decision made by a public school superintendent.

The defendants contended that their due process rights were violated by the requirement that they have their "home school" approved by a superintendent of a public school system. According to the defendants, a public school superintendent has an interest in encouraging children to attend public schools because public schools receive a significant amount of state aid for each child.

The Michigan Court of Appeals rejected this argument, disagreeing with the defendants' interpretation of the purpose of the statutory hearing under Michigan law. The Court said that no approval process existed. The purpose of the hearing referred to by the defendants was to close a school. The provisions of the law relating to prosecuting parents for failure to cause their children to attend a school was a separate matter. The Court said that the hearings relating to closing a school were directed at school "administrators" and confusion arises because in a home school situation, the parents are the only school administrators.