This Information Memorandum was prepared for the Legislative Council's Special Committee on Home- Based Private Educational Programs. It summarizes reported court cases, decided since 1980, which examined the validity, under various provisions of the U.S. Constitution, of regulations and related enforcement procedures applicable to home schools under other states' laws.

The body of this Memorandum discusses the courts' analyses of the major constitutional issues raised in the cases and is organized by constitutional issue.

To provide more detailed information about individual cases, appendices are included, each of which summarizes individual cases discussing the constitutionality of a particular type of regulation or related enforcement procedure.

In reviewing this Memorandum, it should be noted that:

1. The U.S. Supreme Court has not yet decided any cases directly involving state regulation of home schools. Thus, all of the cases discussed in this Memorandum were decided by lower courts, specifically federal district courts, federal courts of appeals and state appeals courts, including state supreme courts.

2. Because there is no general reporting system for state trial court decisions (as opposed to state appeals court decisions), state trial court decisions are not included in this Memorandum. Federal trial court

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decisions (i.e., decisions of federal district courts) are included since there is a reporting system for them.

3. Where a court decision on the merits of a constitutional issue relating to a home school regulation has been reviewed by a higher court on appeal, the lower court's decision in the case is not discussed.

4. Only majority opinions are discussed in this Memorandum; dissenting opinions are not summarized.

5. Some of the laws examined by the courts in the cases described in this Memorandum have been amended since the case was decided. [For descriptions of current state statutes regarding home schooling, see MEMO NO. 3, Examples of Home Schooling Provisions in Other States' Laws Relating to Reporting and Recordkeeping, Student Performance Assessment Instructor Competency and Program Approval, dated October 12, 1990.]

This Memorandum is intended to be a thorough discussion of recent (1980 and after) reported case law on the topics taken up. The reader will note that the trend of the cases discussed in this Memorandum is to uphold the constitutionality of state laws regulating home schools. Because of the pronounced nature of this trend, special care was taken to attempt to find reported cases striking down state regulations. With the limited exception of cases which found regulations to be unconstitutionally vague, that effort was unsuccessful, which tends to indicate that there are few, if any, such cases.

This Memorandum is organized as follows:

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This Memorandum discusses cases which involved challenges based on:

1. The right to free exercise of religion under the First Amendment to the U.S. Constitution; and the right of parents to direct the upbringing and education of their children, based primarily on privacy and liberty interests under the 14th Amendment.

2. The right to equal protection of the laws under the 14th Amendment.

3. The right to an impartial decision maker under the Due Process Clause of the 14th Amendment.

4. The prohibition against the establishment of religion by Congress or the states under the First Amendment.

5. The privilege against self incrimination under the 5th Amendment.

6. The prohibition against unreasonable searches under the 4th Amendment.

7. Due process rights under the 14th Amendment relating to the "void for vagueness" doctrine and improper delegation of authority.

In two of the cases discussed in this Memorandum, the courts held that requirements relating to instructor qualifications were unconstitutionally vague because they failed to provide adequate standards by which persons attempting to comply with or enforce the laws could know whether a violation had occurred. In all the remaining cases, the courts upheld the laws.

In these cases, different courts sometimes applied different standards to analyze the same constitutional issue or emphasized different factors. These differences reflected, in part, the factual situations before the courts, but they also reflected some inconsistencies in the legal analyses used by the courts.

This Memorandum discusses, for each of the major constitutional issues raised in the cases summarized, the standards and reasoning used by the courts in analyzing that issue and the factors that the courts emphasized in reaching their conclusions.

See the appendices to this Memorandum for more detailed descriptions of the individual cases.

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I. FREE EXERCISE OF RELIGION AND RIGHT TO DIRECT CHILD'S EDUCATION

Two of the major claims made in cases which challenge the validity of specific home school regulations are that the regulation infringes upon: (a) the Free Exercise of Religion Clause of the First Amendment to the U.S. Constitution; or (b) parents' liberty or privacy rights, based primarily on the 14th Amendment, to direct the upbringing and education of their children.

The 1972 decision, Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972), is the most recent U.S. Supreme Court case to directly review a conflict between parental interests and compulsory attendance laws. In that case, the Court balanced the parents' First Amendment right to free exercise of religion with the state's interest in ensuring the education of all children.

Since Wisconsin v. Yoder, the U.S. Supreme Court has changed the general framework of analysis of First and 14th Amendment cases from a balancing of rights or interests to a "strict scrutiny" analysis. Under the strict scrutiny analysis, the burden is on the person raising the constitutional challenge to a government regulation to initially demonstrate both of the following:

a. That the person's interest is fundamental. [In the case of a claim that a regulation violates the Free Exercise of Religion Clause of the First Amendment, a sincerely held religious belief must be shown.]

b. That the challenged regulation burdens the fundamental interest.

If the challenger meets the above requirements, the state can prevail only if both of the following are found:

c. That the challenged regulation is motivated by a compelling state interest.

d. That the state's actions are the least restrictive means to achieving the compelling state interest. [See the discussion in Rose, Daniel J., "Compulsory Education and Parent Rights: A Judicial Framework of Analysis," Boston College Law Review, Vol. 30 861 (May 1989).]

In cases where no constitutionally protected fundamental right is involved, or there is no burden on such a right, rather than applying the strict scrutiny analysis, the courts look to whether the state regulation is "reasonable." This difference in the analytical standard can be crucial in determining the outcome of a case: it is more difficult for a state regulation to be overturned under a "reasonableness" analysis than under a strict scrutiny analysis.

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A. Free Exercise of Religion

Although the U.S. Supreme Court has not yet had the opportunity to apply its strict scrutiny analysis to compulsory school attendance cases, courts throughout the country have applied that analysis to home school cases involving free exercise of religion claims. However, not all courts have used this analysis and, where used, its application has not been uniform.

For example, in Jernigan v. State, 412 So. 2d 1242 (C.C.A. Ala. 1982), the Court of Criminal Appeals o? Alabama did not use the strict scrutiny analysis in reviewing that state's home school teacher certification requirement. Instead, citing the U.S. Supreme Court's decision in Wisconsin v. Yoder, the Court balanced the interests of the state against the religious interests asserted by the parents [Jernigan V. State is summarized in Part C of Appendix II to this Memorandum].

Also, in a series of cases relating to the application of North Dakota's teacher certification requirement to home schools, the North Dakota Supreme Court set forth the applicable analysis as a three part test, rather than the four part strict scrutiny analysis summarized above. The Court replaced the third and fourth elements, as described above, with an analysis that appeared to have elements of the balancing test used in Wisconsin v. Yoder. 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. [See State v. Patzner, 382 N.W. 2d 631 (N.D. 1986), and the following cases summarized in Part B of Appendix II.]

Notwithstanding the variations just described in most of the recent home school cases which involved free exercise of religion claims, the courts applied the strict scrutiny analysis. In these cases, the parties stipulated or the courts, without lengthy discussion, recognized the involvement of a fundamental interest a sincerely held religious belief. Also, in most of these cases, the courts found at least some burden on the free exercise of religion. [However, see Blackwelder v. Safnauer, 189 F. Supp. 106 (N.D.N.Y. 1988), summarized in Part A of Appendix I; State v. Schmidt, 505 N.E. 2d 627 (Ohio 1987), cert. den., 484 U.S. 942, 108 S. Ct. 327, summarized in Part D of Appendix I; and People v. De Jonge, 179 Mich. App. 225, 449 N.W. 2d 899 (1989), summarized in Part A, 2, of Appendix II.]

Most of the courts' discussion of free exercise of religion claims dealt with the last two parts of the strict scrutiny analysis: (1) whether the challenged regulation was motivated by a compelling state interest; and (2) whether the state's actions were the least restrictive means to achieving the compelling state interest.

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Generally, in these cases, the courts had little difficulty finding a compelling state interest. Factors stressed by the courts included that education is perhaps the most important function of state and local governments; an educated citizenry is vital to the preservation of a democratic system of government; and education provides the basic tools by which individuals might lead economically productive lives. Other factors mentioned by individual courts included the following:

1. 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 [Blackwelder v. Safnauer, supra, summarized in Part A of Appendix I].

2. The state's interest is not simply an interest in education but an interest in the quality of education [Blount v. Department of Educational and Cultural Services, 551 A. 2d 1377 (Maine 1988), summarized in Part B, 2, of Appendix I].

3. It would eviscerate the state's interest in education to restrict the state to assuring the mere physical presence of school children in some facility purporting to be a classroom [Blount v. Department of Educational and Cultural Services, supra, summarized in Part B, 2, of Appendix I].

In examining the state's interest (as well as the burden on the parents' religious beliefs), many of the courts distinguished the home schoolers' religious beliefs from the religious beliefs of the Amish involved in Wisconsin v. Yoder. For example, in Jernigan v. State, supra, summarized in Part C of Appendix II, the Court of Criminal Appeals of Alabama noted that the Amish parents in Wisconsin v. Yoder did not object to elementary education through the first eight grades, while the parents in Jernigan v. State 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 Alabama Court, unlike the Amish, the parents had not demonstrated that their home teachings were successful in preparing their children for life; that their entire way of life was inextricable from their religious beliefs; or that public schooling would substantially interfere with their religious practices.

Courts made the following general comments regarding the fourth step of the strict scrutiny analysis that the state's actions are the least restrictive means to achieving the compelling state interest:

1. 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

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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 [Blount v. Department of Educational and Cultural Services, supra, summarized in Part B, 2, of Appendix 1].

2. The imposition of less restrictive home schooling regulations by one or more other states does not demonstrate that a particular state's law is not the least restrictive means of fulfilling that state's compelling interest in educational quality. Other state's choices are entitled to no more deference than are any other proposed regulatory alternatives. [See Blount v. Department of Educational and Cultural Services, supra, summarized in Part B, 2, of Appendix I. Also, see People v. De Jonge, supra, summarized in Part A, 2, of Appendix II; and State v. Patzner, 382 N.W. 2d 631 (N.D. 1986), cert. den., 469 U.S. 825, 107 S. Ct. 99 (1988), summarized in Part B, 1, of Appendix II.]

3. A state must have a mechanism by which it can confidently and objectively be assured that its citizens are being adequately educated. [See Murphy v. Arkansas, 852 Fed. 2d 1039 (8th Cir. 1988), summarized in Appendix III.]

Applying the "least restrictive" analysis to specific of home school regulations, courts made the following comments regarding those regulations and alternatives to them:

1. The Maine Supreme Court said that the less restrictive alternative that the plaintiffs offered to Maine's teacher certification requirement as the most promising was standardized testing. However, the plaintiffs were only willing to submit test scores if the scores were not used as 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 [Blount v. Department of Educational and Cultural Services, supra, summarized in Part B, 2, of Appendix I].

2. The Michigan Court of Appeals held that Michigan's teacher certification requirement was the least obtrusive means of achieving the state's interest. According to the Court, the defendants implicitly argued that curriculum and attendance requirements were sufficient to protect the state's interest. The Court said that curriculum and attendance requirements ensure that the student and the educational material are in the same place at the same time, but do nothing to ensure that the material is imparted to the child in such a way as to be understandable [People v. De Jonge, supra, summarized in Part A, 2, of Appendix II].

3. In examining North Dakota's teacher certification requirement, the North Dakota Supreme Court said the alternative of standardized

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testing would not reveal possible deficiencies until the end of a school term and would likely not satisfy the state's interest. Also, the Court 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 [State v. Patzner, supra, summarized in Part B, 1, of Appendix

4. Examining Arkansas' standardized testing requirement, the U.S. Court of Appeals for the 8th Circuit specifically rejected the argument that parental testing of children would provide a sufficient safeguard to assure the state's interest. Similarly, the Court said that parental affidavits concerning the children's progress would be insufficient [Murphy v. Arkansas, supra, summarized in Part A of Appendix III].

Finally, in a number of these cases, the courts specifically noted the flexibility provided to home schoolers under some of the states' laws, as support for their conclusions that the regulations being challenged were not overly restrictive. [Specifically, see Blackwelder v. Safnauer, supra, summarized in Part A of Appendix I; Blount v. Department of Educational and Cultural Services, supra, summarized in Part B, 2, of Appendix I; and Murphy v. Arkansas, supra, summarized in Appendix III.]

B. Right to Direct Child's Education

In a number of cases, claims were made that specific home school regulations violated parents' privacy and liberty interests under the Due Process Clause of the 14th Amendment. In nThese cases did the court specifically apply the strict scrutiny analysis and, in a number of the cases, the courts directly rejected the application of that analysis.

For example, in examining one such claim involving Michigan's teacher certification requirement, the Federal District Court for the Western District of Michigan, Southern Division, said 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. However, the Court said that the plaintiffs had cited no cases holding that parents have such a fundamental constitutional right. The Court said that, instead, the plaintiffs relied on dicta from several U.S. Supreme Court decisions, including Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923), Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571 (1925), and Wisconsin v. Yoder, supra. The Court also distinguished the plaintiffs' claim from the claims of the Amish in Wisconsin v. Yoder, stressing that the plaintiffs' claim was not based on religious beliefs. The Court concluded that the plaintiffs' claimed right to educate their children at home free from Michigan's teacher certification law did not rise above a "personal or philosophical choice"

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and, therefore, was not within the bounds of constitutional protection. As a result, the state need not demonstrate a "compelling interest" but only that it acted "reasonably" [Hanson v. Cushman, 490 F. Supp. 109 (W.D.S.D. Mich. 1980), described in Part A, 1, of Appendix III].

The Federal District Court's analysis in Hanson v. Cushman, supra, was followed in two other cases involving the Michigan teacher certification requirement: People v. De Jonge, supra, summarized in Part A, 2, of Appendix II; and Clonlara v. Runkel, 722 F. Supp. 1442 (E.D.S.D. Mich. 1989), summarized in Part A, 3, of Appendix II. In Clonlara v. Runkel, the Court emphasized that, in Wisconsin v. Yoder, the U.S. Supreme Court characterized the parents' fundamental right involved as the right to direct their child's religious upbringing, not their child's education

per se.

Also, see Murphy v. Arkansas, supra, summarized in Appendix III, in which the Court rejected the extension of the right to privacy to parental decisions concerning the direction of their child's education.

The following cases which rejected claims based on the right to direct a child's education did not clearly articulate the standard being used.

1. In State v. McDonough, 468 A. 2d 977 (Maine 1983), summarized in Part B of Appendix I, the Supreme Judicial Court of Maine did not apply the strict scrutiny analysis. Instead, citing 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.

2. In Care and Protection of Charles and Others, 504 N.E. 2d 592 (Mass. 1987), summarized in Part C of Appendix I, the Court said that parents' liberty interests, protected by the 14th Amendment, extend to activities involving child rearing and education and parents have a basic right to direct the education of their children. However, in upholding Massachusetts' home school approval requirement, the Court said this right is not absolute and "must be reconciled" with the substantial state interest in the education of its citizenry.

3. In Jernigan v. State, supra, summarized in Part C of Appendix II, the Alabama Court of Criminal Appeals cited the U.S. Supreme Court's opinion in Meyer v. Nebraska, supra, 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 Court found that statement to be equally true for children who receive their education in the home and ample justification for what it characterized as the state's "reasonably narrow requirement" of certification.

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In only The cases discussed in this Memorandum did a court indicate that the strict scrutiny analysis should be used to evaluate claims regarding the parents' rights to direct their children's education. The Federal District Court for the Northern District of New York said that recent cases involving the constitutional right to privacy indicate that the strict scrutiny analysis should be used. However, the Court said that whatever standard was applied, the New York compulsory attendance laws survived scrutiny [Blackwelder v. Safnauer, supra, summarized in Part A of Appendix I].

In cases involving parents' rights to direct the education of their children, factors noted by the courts as supporting specific state regulations included the following:

1. 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. Not all parents who would hold their children out of school under an unlimited exception to the compulsory attendance laws would have the sincere desire to provide their children with adequate instruction [State v. McDonough, supra, summarized in Part B, 1, of Appendix II].

2. Many parents, even though they have a sincere desire to educate their children at home, lack the necessary training and facilities to do so [State v. McDonough, supra, summarized in Part B, 1, of Appendix II].

3. Without an approval process, the state would be powerless to assert its interests in the education of a child who is being "otherwise instructed" (e.g., instructed at home) [Care and Protection of Charles and Others, supra, summarized in Part C of Appendix II].

Also, see the factors considered by the courts in cases involving the right to free exercise of religion, listed under Part I, above.

II. EQUAL PROTECTION

In a number of cases, parents made 14th Amendment equal protection claims. In each of these cases, the courts applied a "rational basis" test, rather than the strict scrutiny analysis which is applied to equal protection claims involving "suspect" classifications, such as race or religion.

Parents argued that states' distinctions between home schooling programs and private schools were "arbitrary" or "irrational" in Blount v. Department of Educational and Cultural Services, supra, described in Part B, 2, of Appendix I, and Murphy v. Arkansas, supra, described in Appendix

In Blount v. Department of Educational and Cultural Services, the Maine Supreme Court rejected the equal protection argument, noting that this claim was a "reprise" of a previously discussed argument raised by the parents under their free exercise of religion claim. The Blounts had argued that Maine's distinction between home schooling programs and private schools was arbitrary. According to the Blounts, any valid reason the state might have for supervising home schooling more closely than organized private schools could not be grounded in a public interest sufficiently compelling to allow the state to enforce the distinction against religious conscientious objectors. The Court disagreed stating that 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. The Court said that since the law had already survived strict scrutiny analysis under the First Amendment free exercise of religion claim, the classification would easily pass the equal protection rational basis test.

In Murphy v. Arkansas, the U.S. Court of Appeals for the 8th Circuit said that it could be argued that the Arkansas law requiring standardized testing, 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, even if such discriminatory impact was shown, it would not be sufficient to invoke strict scrutiny. The plaintiffs would still bear the burden of proving discriminatory purpose or intent and no showing had been made. The Court of Appeals also rejected the argument that strict scrutiny should 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 the parents contended.

The Court of Appeals then said that there was a rational reason to subject home schooling to regulatory requirements, while freeing private schools from virtually any regulation. According to the Court, it could be argued that the notion of an actual, independent school, away from home, implies more formality and structure than a home school which could lead the state to believe that more serious instruction would be occurring than in the relaxed atmosphere of home; the notion that more than one family is likely to be sending their children to a private school may provide an additional objective indication of the private school's quality; and 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.

In Hanson v. Cushman, supra, summarized in Part A, 1, of Appendix II, the plaintiffs claimed an equal protection violation, arguing that Michigan's law treated parents who wished to educate their children at home differently depending upon whether or not the parents were certified

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teachers. The Federal 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, there need be only a "rational relationship" between the distinction being made. and a legitimate state purpose. The Court found such a 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.

In Clonlara v. Runkel, supra, summarized in Part A 3, of Appendix II, the plaintiffs made an equal protection claim under 42 U.S.C. s. 1985 (3), apparently based on differential treatment of members of a class of people who wished to provide for their children's education at home. The Court held that the plaintiffs had not shown the kind of "class based invidiously discriminatory animus" needed to sustain a claim under that statute.

III. DECISION MAKER

In four cases discussed in this Memorandum, the courts examined home school parents' claims that their 14th Amendment due process rights were violated by the role of local public school officials in approving or making other decisions relating to home schools.

In three of these cases, the parents argued that a conflict of interest existed because the public school district received state funds based on the number of pupils enrolled in the school district [Blackwelder v. Safnauer, supra, summarized in Part A of Appendix I; State v. Anderson, supra, summarized in Part B, 2, of Appendix II; and People v. De Jonge, supra, summarized in Part A, 2, of Appendix II]. The Courts rejected each of these claims but for different reasons, as follows:

a. In Blackwelder v. Safnauer, the Federal District Court rejected the state aid argument noting that the plaintiffs failed to demonstrate that the decision maker had a personal financial stake or official motive in the outcome of his or her decision. The Court said that even assuming that a financial incentive did exist for the school district, a school superintendent in New York is not responsible for assuring that the money necessary to run the school system is provided school boards have that responsibility.

b. In State v. Anderson, the North Dakota Supreme Court said that if a statute is susceptible of two constructions, one of which would render it of doubtful constitutionality and one of which would not, the latter construction must be adopted. In order to remove any doubt of due process infirmities due to the state aid issue, the Court construed the law to

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require the local school board to "monitor" whether or not a school age child was attending an approved school. According to the Court, the local school board act was a ministerial function, rather than a discretionary, decision making function.

c. In People v. De Jonge, the Michigan Court of Appeals disagreed with the defendants' interpretation of Michigan law and held that no home school approval process existed.

A different issue was addressed by the North Dakota Supreme Court in State v. Brewer, 444 N.W. 2d 923 (N.D. 1989), described in Part B, 2, of Appendix V. In that case, the defendants argued that the local public school district was the "institutional opponent" of home schoolers. 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. The Court also said that there was no factual evidence in the record of the case which reflected an actual bias on the part of the particular school board officials.

IV. ESTABLISHMENT OF RELIGION

Defendants claimed that home school regulations violated the Establishment Clause of the First Amendment in Blackwelder v. Safnauer, supra, described in Part A of Appendix I, and State v. Anderson, supra, described in Part B, 2, of Appendix II. The Establishment Clause prohibits Congress from enacting laws respecting the establishment of religion (i.e., the Establishment Clause requires separation of church and state) and is applied to the states by application of the 14th Amendment.

Both courts used the three part test developed by the U.S. Supreme Court for analyzing whether a statute violates the Establishment Clause. Under this test to be valid:

a. The statute must have a secular purpose.

b. Its principal or primary effect must be one that neither advances nor inhibits religion.

c. The statute must not foster an excessive government entanglement with religion [see Lemon v. Kurtzman, 403 U.S. 601, 91 S. Ct. 2105 (1971)].

In Blackwelder v. Safnauer, the Court found that the statute served legitimate secular purposes related to the education of its citizens and accommodated religious beliefs without approaching the level where the government itself had advanced them through its own activities or influence. The Court said that the third part of the three part test was

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the most directly implicated by the plaintiffs' contentions. The plaintiffs argued that the type of educational standards contemplated by New York, particularly the insistence of local school superintendents on prearranged home visits during the instruction of children, posed a significant threat of fostering the excessive entanglement of government and religion. The Court rejected this claim, stressing that ongoing inspections were not required 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 religious training given students attending home schools was contemplated.

In State v. Anderson, the North Dakota Supreme Court described a decision of the U.S. Court of Appeals for the 8th Circuit involving the placement of state university students seeking to become licensed teachers in parochial schools to fulfill their student teaching requirements. In that case, the Court of Appeals found that the program could not help but communicate a message of government endorsement of the parochial schools and their religious messages [Stark v. St. Cloud State University, 802 F. 2d 1046 (8th Cir. 1986)]. The North Dakota Supreme Court also described a U.S. Supreme Court case involving the use of federal funds to pay salaries of public school employees who taught in parochial schools. In that case, the U.S. Supreme Court held that the supervision and administrative cooperation required permanent and pervasive state presence in the sectarian school, thus, entangling church and state [Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232 (1985)].

The North Dakota Supreme Court said that the North Dakota teacher certification requirement did not present the same problems, concluding that the requirement neither advanced nor inhibited religion and did not foster excessive government entanglement with religion.

V. SELF INCRIMINATION

In State v. McDonough, supra, described in Part B, 1, of Appendix I, parents argued that their constitutional privilege against self incrimination was violated by Maine's requirement for prior approval of home schools. The Court found no merit in this argument, noting that the privilege against self incrimination applies only to criminal cases; this case involved a civil violation.

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VI. UNREASONABLE SEARCHES

The issues in Blackwelder v. Safnauer, supra, was whether the enforcement mechanism of New York's home school approval requirement violated the 4th Amendment's prohibition against unreasonable searches. [See Appendix IV.] New York law required that educational services in a home 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 Federal District Court said that the plaintiffs did not forfeit all reasonable expectations of privacy in their homes by utilizing their homes as schools. Thus, the Court had to determine whether conditioning an approval of home schooling 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.

Examining established exceptions to the warrant requirement, the Court concluded that the on site inspections were permissible under an exception which allows searches to be conducted with the consent of the party whose privacy is implicated. The Court rejected the home schoolers, argument 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. According to the Court, by refusing to consent to on site visits, parents did not necessarily forfeit their right to teach their children at home; they 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.

VII. VAGUENESS OR IMPROPER DELEGATION OF AUTHORITY

All of the constitutional issues discussed in previous parts of this Memorandum related to the validity of a state's imposition of a particular type of regulation or a particular procedure for enforcing the state's regulations. In addition to those types of cases, a number of cases have raised the question of whether specific home school regulations are "void for vagueness" or an improper delegation of authority to the person making the approval decision. These issues arise under the Due Process Clause of the 14th Amendment to the U.S. Constitution. [Cases raising this issue with regard to requirements for the approval of home schools are briefly described in Part E of Appendix I and cases raising this issue with regard to teacher qualifications are briefly discussed in Part D of Appendix II.]

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Generally, these cases involved statutory language which required that children in home schools receive instruction from "competent" or "qualified" teachers or tutors or that the instruction they receive be "substantially equivalent," "essentially equivalent" or "equal" in some respect to instruction in the public schools.

An important factor in some of these cases was whether the state had, in addition to the applicable statutory language, detailed regulations issued by the state education agency. The following three cases are illustrative:

a. In State v. Nestrom, 371 N.W. 2d 525 (Minn. 1985), the Minnesota Supreme Court found unconstitutional Minnesota's law which 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.

b. In Blackwelder v. Safnauer, supra, the Federal District Court upheld New York's requirement that children taught outside the public school system receive instruction that was at least "substantially equivalent" to that provided students in the public schools from a "competent" teacher. The District Court distinguished this law from the Minnesota law struck down in State v. Nestrom on the basis of the extensive regulations promulgated by the New York Department of Education and the ability of home schooling parents to clarify the meaning of a regulation and modify their behavior, either through their own inquiry or through an administrative process.

c. In Jeffrey v. O'Donnell, 701 F. Supp. 591 (N.D. Penn. 1988), the Federal District Court found unconstitutional a Pennsylvania statute which provided that instruction by a "properly qualified tutor" would constitute compliance with the compulsory attendance law. In striking down the law, the Court distinguished it from the New York law examined in Blackwelder v. Safnauer on the basis of the lack of clarifying regulations.