Onslaught in Michigan
By Chris Klicka
Michigan is one of the last three states that still requires parents to be certified in order to teach their own children at home. As a result, many homeschoolers have been charged with violating the compulsory attendance statute since they refuse to use a certified teacher.
Recently, HSLDA achieved an important victory in Haines, Smolls, Gibson v. Runkel, No. 86-55895AW, Circuit Ct. for the County of Ingham, June 17, 1986. When the Haines family, an HSLDA member, was charged with violating the compulsory attendance law, HSLDA attorney Dave Kallman defended the family and acquired a dismissal of all charges. In the case, the assistant attorney general stipulated and the court ruled that:
There is no approval or licensing procedure pursuant to any state statute or administrative rule which requires a private home school, or private non-public school of any kind, to be approved or licensed by the Dept. of Education prior to the school’s opening for operation or during the school's ongoing operation
The Michigan Dept. of Education’s authority is limited to the disapproval of private, nonpublic schools pursuant to the administrative procedures under MCLA, §388.554 based upon the findings of non-compliance with the law.
Haines, No. 86-55894AW
This simply means that homeschoolers do not need to seek the approval of the state in order to operate their homeschool. Also the state must exhaust their administrative remedies before they can bring any sort of criminal charges against the family.
Dave Kallman was able to achieve the dismissal of several other HSLDA cases pending in various courts by sending the respective prosecutors a copy of the Haines case.
Unfortunately, the state department of education recently passed their “Nonpublic School and Home School Compliance Procedures” which require a certified teacher to teach every single subject taught to homeschoolers and children in private schools. Prior to these “compliance procedures,” homeschoolers were considered “legal” if they merely had a certified teacher involved on a consulting basis. In addition, homeschoolers are now required to fill out a “Home School Membership Report” (form SM-4325) requesting information on the children being homeschooled and the involvement of the certified teacher.
The HSLDA legal staff has counseled over 50 families in the last month who have been sent the “Home School Membership Report” by their intermediate school district. HSLDA takes the position that homeschoolers are not required to fully comply with the compliance procedures because the state department of education has no authority to pass such procedures. In fact, the assistant attorney general has stated in recent legal memorandum that the Michigan Department of Education has no authority to promulgate administrative rules regulating homeschooling. Therefore, HSLDA urges its member homeschoolers who received the “Report” to only fill in part of the report and send it back after counseling with the attorneys at our national office.
Most school districts are waiting for the law to be clarified before they try to enforce the “Compliance Procedures.” In addition, even if a school district decided they wanted to enforce the new rules, they are still required by the Haines decision to initiate administrative hearings before the state department of education whenever they suspect a homeschooler is not complying with compulsory attendance requirements. Administrative hearings are far better than having homeschoolers criminally charged with child neglect.
Many other factors contribute to the general uncertainty as to what Michigan’s compulsory attendance law actually requires. HSLDA member, the DeJonge family, was recently convicted of violating the compulsory attendance law by the Ottawa County District Court, Michigan v. DeJonge, November 19, 1986, because the family refused to use a certified teacher. Dave Kallman has established an excellent record at the trial level preserving key issues to be used on appeal before the circuit court. Attorneys Klicka and Farris will be preparing the brief to be argued on appeal of the DeJonge case and will be raising several key constitutional issues.
In addition, the Michigan Supreme Court recently handed down a split decision in Sheridan Road Baptist Church v. Department of Education, No. 73665, November 24, 1986. The decision was 3-3 upholding the lower court’s decision that certification was constitutional. However, because the decision is split, no supreme court precedence was set. The three judges who dissented argued that the state failed to prove that teacher certification was the least restrictive means of guaranteeing that children would be educated. In fact, they held that the evidence was to the contrary. As a result of this tie, attorney William Ball requested a rehearing before the full Michigan Supreme Court (all seven justices) but it was denied. The case will be appealed to the U.S. Supreme Court.
Meanwhile the Clonlara Home Based Education Program in Ann Arbor has challenged the teacher certification requirement in federal court and has challenged the new state “Home School Membership Report” form in the Ingham County Circuit Court. These cases have further contributed to convincing the school districts to do nothing until these issues are settled.
Finally, Representative Walberg has introduced an excellent homeschool bill (HB 5356) which may provide the needed relief to homeschoolers in Michigan. Home School Legal Defense Association all across the country need to uphold in prayer the homeschoolers in Michigan and HSLDA as they continue to defend their member families.