Lyndon G. Furst
Department of Educational Administration
Andrews University
Berrien Springs, Michigan 49104
Keywords: Homeschooling, home schooling, home education, legal, law, legality
Parents who choose to school their children at home face structural as well as educational challenges in educating their children. Compulsory school attendance laws pose the most formidable organizational challenge. A recent study conducted by this author (Furst, 1992) reviewed a large number of court decisions that have affected home school parents. States attempt to regulate home schools through requirements such as teacher certification, achievement testing, and approval procedures. In general, courts have upheld all three of these types of regulations. The courts have, however, required state agencies to enforce regulations in strict compliance with the statutory procedures. In instances where government officials have utilized procedures not specified in the law, their attempts to regulate home schools have been limited by the courts.
In situations where officials have acted within the compulsory attendance statutes, the courts have overwhelmingly upheld attempts by states to regulate and control both private schools and home schools. Such control must be reasonable and have a rational relationship to the state’s legitimate interest in an educated population (see, e.g., Whisner, 1976). It was concluded in the earlier study that home school parents gain more protection from legislative enactments that recognize the legitimacy of home schooling than from the courts. This article updates the earlier research by reviewing the more recent case law to identify any changes in judicial reasoning that might affect parents who school their children at home.
Home schooling has been a topic of interest in the professional literature  in recent years. Knowles (1992) documents five stages that home schooling movements have gone through in the United States. He identifies the dangers of compartmentalization which is the emerging stage of home schooling. As parent groups tend to pull apart important alliances are fractured. This may be a more serious threat to the future of home schooling than the confrontation with public schools which has been so prevalent in the past. In a surprising effort to legitimize home schooling, Natale (1992) appeals to public school boards to understand the home schooling movement by looking at both sides of the issue. All children will ultimately benefit through an alliance between home schoolers and public school officials. In the same journal, Marshall (1992) tells the story of his direct effort to bring the two groups together. As a home school parent, he was elected to serve on the public school board. Needless to say, the experience was an eye opener for both him and the other members of the board as they sought to understand the perspective each had on the educational needs of children.
Another author writing to a public education audience (Doyle, 1992) identifies the challenge of home schooling to the public schools. While home schools will never make serious in-roads into the enrollment of public schools, it does provide a glimpse at an interesting phenomenon in our high technology service oriented society. An even more fascinating challenge to public schools is an article written by a public school teacher who decided to home school several of his own children (Pike, 1992). While he was strongly committed to the goals of public education, the author cited several problems that he incurred when his minority children attended public school. The only solution, he concluded, was to teach them at home so they could obtain the kind of education they deserved.
I concluded, in my earlier research, that home school parents could receive more protection from the legislature than from the courts. One author (Ramsay, 1992) has documented that in the last twelve years 34 states have changed their laws to make it easier for parents to teach their children at home. Tompkins (1991) conducted a more detailed analysis of both the constitution and the decisions of the Supreme Court. While courts have uniformly concluded that there is no fundamental right for parents to school their children at home, he argues that there should be such a right. Without this important right home school parents are constantly at risk. While most states do permit parents to school their children at home, Tompkins correctly notes that any state could enact a law to specifically prohibit home education. Thus, he supports the notion that home schooling parents have more protection and more danger from the legislature than they do from the courts.


It is well settled that the State has a compelling interest in insuring that the children of the state receive an appropriate education (Wisconsin v. Yoder, 1972). There is, however, a difference of opinion as to how the state can be assured that children do receive an adequate education when they attend schools not directly under state control. Some states have required that children be taught by state certified teachers, while others have simply required that the children pass a test to determine their level of achievement. In a West Virginia case (Null v. Board of Education, 1993) the achievement testing requirement was challenged by a parent whose son, Brent, attended a public school for grades one and two. His mother decided at the end of grade two that he would be better served if he were schooled at home. In West Virginia a condition for exemption from compulsory attendance at a public school is that the child’s composite score on a standardized achievement test should not fall below the 40th percentile. In the event that a home school child’s scores do fall below this level the parents have one year to implement a remedial program to bring the child up to the standard.
In this case, Brent’s score at the end of the second grade in public school was at the 62nd percentile. After one year of home schooling his score had fallen to the 17th percentile. By the end of the second year of home school, during which Brent’s mother had initiated a remedial program, the test score was only up to the 38th percentile, still short of the required standard. School officials notified the parents that Brent was no longer qualified for the home school exemption to the compulsory attendance law. The parents filed suit claiming that the West Virginia law was a violation of the equal protection clause of the 14th Amendment in that public school children were not subjected to the same requirement as home school children.
A quick review of the mathematical theory behind achievement test scores would indicate serious questions regarding the appropriateness of the testing requirement for home school students. “Percentile” refers to the percentage of children in the nation who score below that particular score. Requiring a child to score at the 40th percentile means that 40 percent of the school children in the United States would fall below that score. While one might applaud this high standard for education, it should be noted that it is impossible for all children to achieve this level since the mathematical procedure for determining percentile assures that 40 percent of the children in the nation will always fall below this criterion. Assuming that home school children reflect the general population as far as ability to learn is concerned, this standard would result in 40 percent of such children being denied the privilege of home schooling. Unfortunately, the court did not review the theory of standardized testing, but simply indicated that the requirement for test scores is rationally related to a legitimate state purpose and therefore denied the parent’s equal protection claim.
Brent’s parents also claimed that their due process rights under the Fourteenth Amendment were being denied by the application of the testing standard. The court noted that the Fourteenth Amendment did allow for the parents liberty interest in directing the upbringing of their children (Pierce v. Society of Sisters, 1925) but they also noted that this interest is subject to reasonable state control. In this case the court ruled that the state’s interest in the education of the children overrode the parents interest in educating the child as they desired. A much more complex Michigan case (People v. Bennett, 1993) involving a similar analysis of the Fourteenth Amendment liberty interest and arriving at the same conclusion will be discussed in more detail later in this article.

Divorce Issues

Two cases recently dealt with decisions by custodial parents in divorce situations who have attempted to home school their children. In a Tennessee case (Rust v. Rust, 1993) the noncustodial father went to court to prevent his wife from home schooling their oldest child. The trial court granted his request by ordering that all the children should be schooled in either public or private schools. The Tennessee appellate court disagreed with this decision noting that the mother had sole custody and no evidence was presented to indicate a negative effect on the child if he were home schooled. It might be noted that a frequent argument against home schooling is a child’s need for social interaction with the opportunity to learn social skills. In this case the mother had specifically designed the home schooling curriculum to involve much interaction  with other children who were being home schooled including community recreation and church group activities.
In Rust, the appellate court relied upon the fact that Tennessee courts have upheld the right of parents to educate their children, noting that they have a fundamental liberty interest with which the court should not interfere. In the case of divorce, a new home is formed with a single parent having all the rights of a two parent home. The court also noted that home schooling is a legal alternative to compulsory attendance at public schools. The only situation in which a court can overturn a parent’s decision regarding the schooling of the children is if it (1) is against the custody orders by the divorce court, (2) would place an increased burden upon the non-custodial parent, (3) is illegal, or (4) can be shown that there will be harm done to the child. None of these conditions existed in the present case.
A home schooling mother in Arkansas did not fare so well, even though she was the custodial parent of twin daughters (Clark v. Reiss, 1992). The non-custodial father obtained an order from the Chancery court directing the mother to leave the children enrolled in public school. Unlike the case in Rust, the appellate court agreed stating that changes in schooling must be the decision of both parents not just the custodial parent. The mother in this case provided a good education for her children. She had been approved as a home school parent by the Arkansas Department of Education and she provided evidence that her children were being properly educated. The court noted, however, that home schooling would alter the non-custodial parent’s visitation rights, and indicated that it was in the best interest of the children to remain in a structured school environment. These two cases Rust and Clark show how similar facts brought to courts in different jurisdictions can result in dissimilar decisions.

Bureaucratic Procedures

Three cases are discussed here which deal with the application of rules made by the state bureaucracy for enforcing compliance with compulsory attendance laws. The first one (Maas v. State, 1992) is an Alabama case in which parents who home schooled their children were visited by public school officials. Even though the officials were told that the parents were in the process of moving to another state, they gave a verbal notice that the home school was out of compliance with the compulsory attendance law. In an action that may be indicative of official animosity toward home schooling, the parents were arrested that same day and charged with contributing to “a child in need of supervision” which is a violation of the Alabama law. The appellate court reversed the trial court’s conviction because the parents had not been given written notice as required in the statute. Citing the state high court as precedent (Ex Parte Hill, 1980) the appellate court noted that actions of the officials must be in literal compliance with statutory law.
A Michigan case (People v. Bennett, 1993) turned on a similar issue of interpreting  specific provisions of state law. In Bennett the parents were convicted of violating the states’ compulsory attendance law. This law provides an exception to attendance at public schools for children who enroll in private schools, but they must be taught by certificated teachers. The Bennett’s, who home schooled their children, were not certificated. The parents claimed that they were entitled to a hearing by the state superintendent of public instruction under the Private Denominational and Parochial Schools Act (1988). The state claimed that they were not entitled to such a hearing since the home did not qualify as a school. The high court disagreed noting that in Michigan there is no formal procedure for the approval of a private school, there are only procedures to disapprove a school that does not comply with requirements of the law. Therefore, the Bennett’s home school was a school until it was disapproved by the State.
Disapproval of a private school, according to Michigan statute, requires a hearing by the State Superintendent of Public Instruction. This hearing must determine that the home is not in compliance with the private and parochial schools act and therefore not a school before the parents can be charged with violating the compulsory attendance law. Since the State applied the requirements of the act to the parents, that is, the certified teacher requirement, it was in fact treating their home like a school. The court noted that if some of the provisions of the act apply to the Bennetts then all of the provisions must be granted to them including the right to a hearing before the state superintendent.
The Michigan Supreme Court’s ruling on the teacher certification requirement will be discussed later in this article. Of interest here, however, is the fact that the high court strictly interpreted the procedural requirements of the state law which in this case favored the home school even though it agreed with the state in upholding the teacher certification requirements. The mandate to provide a hearing by the state superintendent would certainly be impractical given the large number of parents who home school their children in the state of Michigan. It remains to be seen what provisions will be made to enforce compliance with the compulsory school attendance law and the Private, Denominational and Parochial Schools Act.
In a companion case to Bennett the same court dealt with a challenge to the validity of the compliance procedures that are published by the State Department of Education (Clonlara, Inc. v. State Board, 1993). Clonlara School claimed that these procedures were invalid since they were in reality rules which had not been promulgated as required by the Administrative Procedures Act. As invalid rules they should not have been considered as binding upon Clonlara which provides services to home school parents. Looking at the specific statute, however, the court noted that the Department of Education did not have statutory authority to make rules for compliance with the nonpublic school act and, therefore, the procedures that they had published were not rules according to statutory definition but were merely interpretive statements which do not have the force of law. As such, the procedures themselves can not be enforced by the State Department of Education unless they are supported by a specific statutory regulation. Two of the compliance procedures, the requirement for teacher certification and the teaching of social studies and science, were viewed as valid interpretations of the statute. However, the requirement for a 180-day school year was not valid because there was no statutory requirement that school meet for that length of time. Thus, the state high court upheld the validity of the procedures to be used as interpretive statements but denied their applicability as enforceable rules.
A North Dakota case (Birst v. Sanstead, 1992) indicates the extent to which officials will engage in petty rules enforcement with home school parents. The Birsts had home schooled their children for several years and had been notified by the North Dakota Department of Public Instruction that it approved their home school as a private school which was exempt from the compulsory attendance law. In 1989, the law was amended to add home schools as a legitimate exception to the compulsory attendance law. However, the Birsts continued to comply with the private school requirement rather than file as a home school. Local school officials directed them to comply with the home school requirements and not those for private schools. They also indicated that if the Birsts were to use the private school exception, they must comply with all the municipal and state fire, health, and safety laws. Making their private home comply with laws for public buildings would prove to be an unreasonable burden upon them. The North Dakota Supreme Court took exception to the officials’ attempts on both issues indicating that the parents could use either exception to the compulsory attendance law and that it was appropriate for them to comply with the fire, safety, and health regulations for a private home rather than those for public buildings.
In an Iowa case (State v. Rivera, 1993), parents who home schooled their children failed to provide the required report of their children’s schooling to school officials claiming that to do so would violate the free expression of their religion. They claimed that their religious belief was that the Supreme Being has exclusive authority over the home education of their children and to provide the required report would be a denial of that authority. They also claimed that the reporting requirements were not essential for the state to ensure an adequate education of their children. The supreme court of Iowa disagreed indicating that the state had the right to set minimum standards and to ensure compliance with those standards. It could find no alternative to a reasonable reporting requirement by the state to ensure that the children of the state did indeed have an adequate education.
In a Texas case (Texas Education Agency v. Leeper, 1991), parents filed a class action suit seeking to enjoin school districts from charging parents with violation of the compulsory school attendance law based on a written interpretation by the Texas Education Agency. In the agency’s interpretation of the statute, home schools were not an acceptable substitute for attendance at either public schools or private or parochial schools. At the time this action was initiated, over a hundred and fifty parents had been prosecuted for violation of the law. The suit was based on the equal protection clause of the Fourteenth Amendment. The Texas Education Agency had identified two separate classes of schools, private home schools and private campus schools. The Texas Appellate Court ruled that these classifications were a violation of the Fourteenth Amendment because they were not related to the lawful objective of the statute which was to ensure the education of the children of the state. In order to be legally acceptable, a classification must have a fair and substantial relationship to the object of the legislation. Persons who are in similar circumstances must be treated alike. The court found that dividing parents who schooled their children in places other than the public school into the two classesCprivate schools and home schools, did not have a substantial relationship to the object of the legislation. Such a classification system is, therefore, a violation of the Fourteenth Amendment. The court noted that the Texas Education Agency had no statutory authority over private or parochial schools and therefore it could not legally exercise authority over home schools since by classification they should be similarly situated to private and parochial schools.

Teacher Certification

One of the major means by which state bureaucracy attempts to regulate home schooling is the requirement that all teachers hold state certification. In a major breakthrough on the certification issue, the Michigan Supreme Court overturned the conviction of parents who were home schooling their children because of their religious beliefs (People v. DeJonge, 1993). The DeJonges taught their children at home without the use of a certified teacher. Their conviction was upheld through a rather tangled series of appeals in the Michigan courts. It was overturned by the Michigan high court based on the First Amendment free exercise clause.
The court noted the long history of the freedom of religion within our country and identified the legal principle that when a state law impinges upon the free exercise of religion the court must use strict scrutiny in determining the constitutionality of the law. This involves a review of the regulation to determine if (1) there is a sincerely held religious belief, (2) the regulation imposes a burden upon the exercise of that belief, (3) there is a compelling interest on the part of the state which would justify the burden it places upon the exercise of the belief, and (4) there is a less obtrusive form of regulation available to carry out the interest of the state.
In this case, the court had no trouble determining that the DeJonges’ religious belief that they should educate their children free from interference by the state was sincerely held. Accepting a certified teacher would violate that belief. However, the court, in contrast with decisions by numerous other courts, concluded that the teacher certification requirement failed the compelling interest test. While there is no question that the state does have a compelling interesting in the education of its children which is necessary to maintain a literate population which in turn is essential to the success of the democratic society, the state had focused on the wrong interestC certification rather than the education of the children. There was sufficient evidence presented to convince the court that the DeJonges were satisfying the state’s interest by providing an adequate educational program

for their children. To maintain its argument, the state must prove that the certification requirement is essential to providing an education necessary to meet the state’s interest.
While the state had failed to make its point, the defendant parents presented strong evidence on the other side of the question. Many other states allow for home schoolers without the certification requirement and, in fact, several states have recently removed their teacher certification requirements for home schools. Further, research was presented which showed no statistically significant relationship between teaching by certified teachers and learning by the students (Ray 1990). In addition, the state, by its own action, has denied its claims for the importance of certified teachers in that the State Department of Education permits noncertified teachers to be employed in nonpublic schools. Furthermore many substitute teachers within the public schools are not certified. In this case the state utterly failed to show that it had a compelling interest in the certification of teachers for religiously based home schools. Thus, the teacher certification requirement, as applied to home schooling parents with religious convictions prohibiting them from obeying such a law, was declared an unconstitutional violation of the First Amendment.
In a companion case to DeJonge (People v. Bennett, 1993), home schooling parents did not fare so well. The Bennetts had become dissatisfied with the instruction provided their children in the public schools and determined that they could be better educated at home. They did most of the teaching themselves, although they utilized a home based education program provided by the Clonlara Company in Ann Arbor, Michigan. Clonlara provides the services of state certified teachers who on occasion helped with the instruction of Bennett’s children. Because they were not using certified teachers for a substantial amount of the time the children were being instructed, the parents were convicted of violating the state’s compulsory school attendance law.
The Bennetts claimed that the right to direct the education of their children guaranteed under the Fourteenth Amendment was being violated by application of the compulsory attendance law. The Michigan Supreme Court disagreed finding that there is no fundamental right to educate children free of reasonable government regulation. Since the Bennetts were not basing their claims on religious reasons, the court found strict scrutiny not required as in First Amendment free exercise cases. Instead, only minimal scrutiny was utilized to determine the constitutionality of the state regulation. Under minimal scrutiny it is necessary only to determine that the state has a legitimate interest and that there is a rational relationship between the regulation challenged and that interest. The court determined that both prongs of the test were satisfied. Without question the state had a legitimate interest in the education of its children and the teacher certification requirement is reasonably related to carrying out the state’s responsibility for this education. Thus, it held that for home schooling parents who were educating their children at home for reasons other than religious convictions the teacher certification requirement was not unconstitutional. In a companion case (Clonlara, 1993), the Michigan Supreme Court again upheld the constitutionality of the teacher certification requirement when there is no religious basis for home schooling.

Analysis and Conclusion

The cause of home schooling has gained much in recent court decisions, although there were some successful challenges to home schooling parents’ desire to be free from regulation. The courts have upheld the achievement testing requirement (Null, 1993), the reporting requirement (State v. Rivera, 1993), and teacher certification for home schools not based on religious beliefs (People v. Bennett, 1993; Clonlara, 1993). While these statutory restrictions upon the freedom of home schooling may continue to be a concern to parents, they should take heart at what was gained. As was identified in previous research (Furst, 1992), the courts have continued to require strict compliance by agents of the state with statutory procedures. In Maas (1992), state officials were required to comply with the written notice requirement. A verbal notice was not acceptable. In Bennett (1993), strict compliance with a hearing requirement was enforced. And in another Michigan case (Clonlara, 1993) the court distinguished between interpretive statements and enforceable rules. One could look with amusement at the fact that the bureaucracy got a dose of its own medicine. Bureaucrats are noted for their strict enforcement of detailed procedures. The courts in turn have required them to provide the same careful attention to regulatory detail to the benefit of home schooling parents.
Recent decisions have afforded two major victories to home schoolers. First, and probably having the largest effect is the Michigan case, (DeJonge, 1993) in which the requirement for certified teachers was declared unconstitutional as it applied to parents who home school because of religious reasons. This is the first time in either the home schooling or private school cases that the state requirement for certification has failed the compelling interest test. While there is no question that the state does have an interest in ensuring the education of the children who reside within its boundaries, the court here noted the inappropriate focus of the state’s interest and, in a slap on the education establishment’s wrist, suggested that the state focus its energies on education and not on bureaucratic rules. In doing so, the court placed a major reliance upon educational research and behaviors of the public education establishment itself to show that its rules were not applicable. There has been much research which questions the relationship between teacher education/certification and the achievement of children. In DeJonge, for the first time, a court found this research stronger than state agencies’ calls for continued regulation. It also relied heavily on administrative acts of the public education establishment in that it was not strictly enforcing the teacher certification requirement within its own ranks. The court had reason to question the sincerity of the state’s belief in the necessity of certification.
While this breakthrough provides a beneficial effect only for parents who home schooled because of religious convictions, it is a step in the right direction as far as home school parents are concerned. Even in its companion case (Bennett, 1993), where the same protections were not afforded to parents who home schooled for reasons other than religious convictions, the requirement for strict compliance with the hearing procedure essentially rendered the teacher certification requirement unenforceable in the state of Michigan. The practical result has been that Michigan school officials have backed away from attempts to enforce this requirement on home school parents.
The Texas case (Texas Education Agency v. Leeper, 1991) provides another major breakthrough in judicial protection for home school parents. By ruling against the state bureaucracy’s attempts to classify home school children separately from other children who did not attend public school, the court has linked home school parents with the powerful political forces of the nonpublic schools. These groups have for many years both individually and in private school coalitions had a significant impact upon the legislature to ensure their freedom of practice in educational matters. Since the Texas court has declared that all children not attending the public schools must be afforded the same classification as far as state law is concerned, home school parents can expect additional political clout in the legislative arena. Now the interests of the two groups are inextricably linked together to the benefit of both. The court’s insight into the legitimacy of home schooling as another form of nonpublic school will no doubt result in significant support for the home schooling movement.
While home schooling parents can justifiably be appreciative of the change of direction in the courts, they must be aware of the limited scope of these victories. Both the DeJonge (1993) and the Texas Educational Agencies (1991) decisions were in state courts. Therefore, the applications of these decisions is limited to the jurisdictions in the respective two states. It still remains to be seen how widely their decisions will be followed by the courts in other states. Given the common law tradition in our country, one would hope that other states might see the efficacy of the decisions in Michigan and Texas and follow suit to the benefit of home school parents in their own jurisdictions.
For both home schools and private schools, eternal vigilance is still the price of freedom. While the recent decisions have been on the side of freedom, the record is somewhat tentative. Statutes can easily be rewritten to make compliance more difficult. In the case of Michigan (see Bennett 1993) simple changes of wording, which now requires a hearing before the state superintendent, could result in hearings before local officials. Such a change would make enforcement procedures against parents more practical and do severe damage to the cause of home schooling. While the shift in judicial reasoning has been in favor of home schooling, parents would do well to keep one eye on the legislature.


Birst v. Sanstead 493 N.W.2d 690 (N.D. 1992).
Clark v. Reiss 831 S.W.2d 622 (Ark.App. 1992).
Clonlara, Inc. v. State Bd. of Educ. 501 N.W.2d. 88 (Mich. 1993).
Doyle, Denis P. (1992). The Challenge, The Opportunity. Phi Delta Kappan, 73(7), 513-520.
Ex parte Hill 381 So.2d 94 (Ala., 1980).
Furst, Lyndon G. (1992). Legal Challenges to Home Schooling: A Review of Recent Case Law. Home School Researcher, 8(4), 1-8.
Knowles, J. Gary, Marlow, Stacey E., and Muchmore, James A. (1992). From Pedagogy to Ideology: Origins and Phases of Home Education in the United States, 1970-1990. American Journal of Education, 100(2), 195-235.
Maas v. State 601 So.2d 209 (Ala.Cr.App. 1992).
Marshall, Jonathan C. (1992). Home schooler on board–school board, that is. The American School Board Journal, 179(9), 28.
Natale, Jo Anna. (1992). Understanding Home Schooling. The American School Board Journal, 179(9), 26-29.
Null v. Board of Educ. of County of Jackson 815 F. Supp. 937 (S.D.W.Va. 1993).
People v. Bennett 501 N.W.2d 106 (Mich. 1993).
People v. DeJonge 501 N.W.2d 127 (Mich. 1993).
Pierce v. Society of Sisters 268 U.S. 510, 45 S.Ct. 571 (1925).
Pike, Bob. (1992). Why I Teach My Children at Home. Phi Delta Kappan, 73(7), 564-565.
Private, Denominational, and Parochial Schools Act. MCLA ‘ 388.551-388.558.
Ramsay, Krista. (1992). Home Is Where the School Is. School Administrator, 49(1), 20-25.
Ray, Brian D.. (1990). A Nationwide Study of Home Education: Family Characteristics, Legal Matters, and Student Achievement. Salem, Oregon: National Home Education Research Institute.
Rust v. Rust 864 S.W.2d 52 (Tenn.App. 1993).
State v. Rivera 497 N.W.2d 878 (Iowa 1993).
State v. Whisner 351 N.E.2d 750 (Ohio 1976).
Texas Education Agency v. Leeper 843 S.W.2d 41 (Tex.App. – Fort Worth 1991).
Tompkins, Dwight Edward. (1991). An Argument For Privacy In Support Of The Choice Of Home Education By Parents. Journal of Law and Education, 20(3), 301-323.
Wisconsin v. Yoder 406 U.S. 205, 92 S.Ct. 1526 (1972).

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