Michigan Home Schoolers Lose Teacher Certification Battle

Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

"...we have not found and defendants have not presented any case that finds the existence of a Fourteenth Amendment fundamental right of parents to direct their children's secular education free of reasonable regulation. We conclude that parents do not have such a constitutional right requiring a strict scrutiny standard. On the contrary, the state may reasonably regulate education, including the imposition of teacher certification and curricula requirements on home-school programs, in order to advance the legitimate interest of compulsory education." 

People v. Bennett, Michigan Supreme Court (May 25, 1993)
 



"We hold that the teacher certification requirement is an unconstitutional violation of the Free Exercise Clause of the First Amendment as applied to families whose religious convictions prohibit the use of certified instructors. Such families, therefore, are exempt from the dictates of the teacher certification requirement."
 

People v. DeJonge, Michigan Supreme Court (May 25, 1993)

State Regulation of Home Schools

Michigan home schoolers have long chafed under an onerous state education law that requires parents who home school their children to provide instructors who are state certified. Curiously enough, only two other states in the U.S. (Alabama and California) continue to insist on teacher certification for home schools. In contrast, by far the majority of states that regulate home schools now require only that the parent-instructors have a high school education and that the home school students submit to periodic academic achievement tests. 

During the last decade Michigan home school advocates have challenged not only the despised certification requirement, but also other regulations imposed on non-public schools (e.g., curricula requirements, 180 school day minimum, and record keeping). In May of this year, the Michigan supreme court finally addressed all of these issues in lengthy opinions in three unrelated home school cases that were consolidated for purposes of hearing. In the Bennett and Clonlara companion cases, al though the truancy convictions were overturned because of procedural irregularities, the court essentially upheld Michigan's regulatory scheme over home schools, holding that the regulations reasonably advance the state's legitimate interest in compulsory education. In the DeJonge case, the court carved out a limited exception where family religious convictions forbid use of certified teachers.

The Bennett Case

Dissatisfied with the public school system in the. Detroit area, John and Sandra Bennett withdrew their children and began teaching them at home. The Bennetts enrolled their children in a home-based education program (HBEP) sponsored by Clonlara, Inc. of Ann Arbor, Michigan. The Bennetts occasionally traveled to Ann Arbor where their children were instructed by certified teachers about four to six hours per month on Clonlara's campus. The Bennetts held classes five hours per day, made monthly attendance reports, prepared individualized curricula for each child, and administered standardized achievement tests for each of their four children. 

Despite these activities, the Bennetts were tried and convicted of failing to send their children to school in violation of Michigan's compulsory education laws. The trial court held that the Bennetts failed to utilize the services of a certified teacher for at least a substantial portion of the school day, and also failed to maintain certain attendance and curriculum records. The Bennetts appealed their convictions to the appellate court and then to the state supreme court.

No Fundamental Right

Although the Bennetts did not contend they had withdrawn their children from the public school system for religious reasons, they nonetheless argued to the supreme court that parents' right to direct the education of their children should be classified as a "fundamental" right. Such a favored classification would then subject any attempted state regulation of such a fundamental right to a "strict scrutiny" test. This test would shift the burden to the state to prove that teacher certification, for example, is the "least intrusive means" of attaining the state's compulsory education goals. 

Regrettably, the court disagreed. Although the majority grudgingly recognized the parental right to direct the education of one's children, the court stopped short of calling it a "fundamental" constitutional right. 

Accordingly, having found the absence of a fundamental right, the court held that the state's teacher certification requirement need only satisfy the "minimal scrutiny" test - whether the regulation is "reasonably related" to a legitimate state interest. The court held:

...it was incumbent upon the Bennetts to show the unreasonableness of the certification requirement, and they have been unable to do so. We are simply unconvinced that there is any reason to find that the teacher certification requirement is anything but at least reasonably related to the state's legitimate interest [in compulsory education]."

Finally, the court determined the Bennetts' convictions should be overturned and vacated because they were not afforded a proper hearing prior to their prosecutions. The court then ordered the state superintendent of education to conduct a new hearing to determine whether the Bennetts' home school met state education laws. 

In conclusion, the court obstinately refused to jettison the teacher certification requirement for home schools, even though this questionable regulation is used in only two other states in the U.S. Even more regrettably, the court refused to recognize the parental right to educate children as a protected fundamental constitutional right.

DeJonge Case - Religious Exemption

In the companion case of People v. DeJonge, however, which was decided the same day, the court did carve out a special exemption to teacher certification for "families whose religious convictions prohibit the use of certified instructors." 

Mark and Chris DeJonge of Allendale, Michigan taught their children at home since 1984 because of their desire to provide them with a "Christ-centered education." They likewise enrolled their children in a HBEP administered by the Christian Liberties Academy in Illinois. 

Nevertheless, because neither of them were certified teachers, the DeJonges were convicted, fined $200, and sentenced to two years probation. On appeal to the Michigan Supreme Court the De Jonges contended that the certification requirement violated their First Amendment right of free exercise of their religion. 

A split court (4-3) ruled in the DeJonges' favor, creating an exception to teacher certification where certification would violate a parent's religious beliefs. Mark DeJonge had apparently testified at trial that it was his sincerely held religious belief that it is sinful for anyone other than parents to teach their children.

Strict Scrutiny Test

Writing for the majority, Justice Dorothy Riley held that, because (unlike the Bennett case) the DeJonge's religious beliefs were being burdened, the First Amendment requires the "strict scrutiny" test to be applied. Accordingly, the application of this test shifted the burden to the state to prove that teacher certification is the "least restrictive means of achieving the state's interest" in education. 

Applying the strict scrutiny test, Justice Riley opined that teacher certification is an" archaic notion," noted that the "nearly universal consensus of [other] states is to permit home schooling without demanding teacher certified instruction," and further noted that over twenty states have already repealed teacher certification requirements for home schools. 

Accordingly, the DeJonge's conviction was vacated and the court held that, although Bennett stands for the general principle that home schools are subject to teacher certification requirements, DeJonge carves out a specific exemption or exception for families whose religious convictions forbid the use of certified teachers.

Shallow Victories

Although the Home School Legal Defense Association, the secular press, and Michigan home schoolers quickly declared a victory in the Bennett and DeJonge cases, a close reading of the court opinions demonstrates otherwise. Even though the Bennetts' and DeJonges' convictions were overturned, these cases accomplished little if anything for the home school movement, and may have signaled a setback for parental rights in Michigan. There are several reasons for this. 

First, the central important issue in the Bennett case was whether the parents' right to direct the education of their children is a. "fundamental" constitutional right enjoying favored status over state regulatory schemes. The court unequivocally ruled to the contrary, declaring that such state regulations over parental education need only pass a minimal "reasonableness" test. This ruling is clearly a loss for all non-public school parents sensitive to control over their children's education. 

Secondly, in the Bennett case the Supreme court stubbornly retained the teacher certification requirements for both home schools and all nonpublic schools. Teacher certification, then, is regrettably still alive and well in Michigan. This adverse ruling, too, is a major defeat for all parental schools burdened with ongoing state bureaucratic rules and regulations, particularly the archaic teacher certification scheme. 

Thirdly, although the DeJonge truancy convictions were overturned, only three of the four majority justices ruled that the teacher certification law was an unconstitutional violation of DeJonges' religious freedom. Accordingly, the religious freedom aspect of the DeJonge case has dubious precedential value.

The Sin of Delegation

Finally, the religious exemption to teacher certification created by the DeJonge case is arguably very narrow and thus will be of limited use to Michigan home schoolers. This is because Justice Riley's majority opinion restricts the exemption of "families whose religious convictions prohibit the use of certified teachers." Mark DeJonge apparently believed it to be a sin to send his children to a day school (even a Reformed Christian day school with certified teachers) because, he insisted, the Bible teaches that only parents may teach their children. Consequently, it would be a sin to delegate teaching to a certified tutor or Christian school teacher. DeJonge also maintained it was a sin for him or his wife to submit to state authority and become certified. 

But since Mark DeJonge's unusual if not bizarre notions are shared by few if any home schoolers (indeed, the appellate court noted that DeJonge's own wife and pastor did not share these beliefs), it appears that the DeJonge religious exemption can be claimed by few parents. Accordingly, as a parental religious freedom decision, the DeJonge case may be of limited significance.