The Home School Court Report
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Winter 1989
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Cover Stories

New Home Schooling Law Passed in Pennsylvania

Supreme Court Refuses to Hear North Dakota Cases

Court Victory in New York

Virginia Wrestles with Religious Exemptions

Home Schoolers Receive Honors

College Acceptances

Florida and Vermont Challenge Home Schools

Who Speaks for the Movement? by Michael P. Farris

Is There A Missing Yes Before The Big No?


Across the States

C O V E R   S T O R Y

Supreme Court Refuses to Hear North Dakota Cases

The U.S. Supreme Court decided on November 28, 1988, not to hear the joint appeal of the Anderson and Dagley cases from the North Dakota Supreme Court. This announcement by the Court received a great deal of press attention, and unfortunately was not reported completely accurately. A great deal of confusion and concern resulted, since home schoolers throughout the nation heard these reports and feared that the decision would adversely affect the home schooling laws in their own states. This is not true, and HSLDA would therefore like to set the record straight, and clarify the significance of the Supreme Court’s action.

The Dagley and Anderson families had both been charged with criminal truancy in North Dakota for their failure to have their children attend an approved school. In order to be an approved school in North Dakota, teachers must be certified by the state. Since none of these parents are certified teachers, their home schools were not approved. Both sets of parents were found guilty at the trial court level, and then appealed their cases to the North Dakota Supreme Court, which upheld both convictions. The families proceeded to file a “petition for a writ of certiorari” with the U.S. Supreme Court, asking the Court to hear the appeal of their cases (the two cases were consolidated into one petition since they involved identical issues and factual situations). The Supreme Court refused to grant the petition to hear the appeal.

The U.S. Supreme Court received over 5000 such petitions last year, out of which only 280 were granted. The denial of the Anderson/Dagley petition was made without comment; the entirety of the order entered by the Court reads: “The petition for a writ of certiorari is denied.” No reasons were given for the denial, and therefore it cannot be said that the Court purposefully left the North Dakota decisions intact. The Court said nothing about the issues or merits of the cases, and therefore it cannot be said that the Supreme Court did anything except refuse to hear the appeal. The result of this refusal is that the decisions of the North Dakota Supreme Court in the Anderson and Dagley cases will stand. This means that, within North Dakota, the certification requirement is still intact, since those decisions upheld the requirement. This has no precedential value for any other state, since the U.S. Supreme Court made no ruling in the case, and the North Dakota Supreme Court’s decisions carry weight only in North Dakota.

The families have argued throughout that the certification requirement restricts the free exercise of their religious beliefs, since they feel compelled by God to teach their children at home. The State of North Dakota has argued that the certification requirement is necessary to satisfy the State’s interest in the education of children. However, the United States Supreme Court has established, through a series of decisions, that a state cannot violate an individual’s free exercise rights unless it demonstrates that it has a compelling state interest in regulating the activity in question, and that they are regulating the activity in the least restrictive manner consistent with satisfying that interest.

In these cases, the State of North Dakota has never put on any evidence, either through expert witnesses or other evidence, to prove that the certification requirement is the least restrictive means of achieving the State’s interest in education, and therefore the families have argued that the State has failed to meet its burden of proving that certification is, in fact, the least restrictive alternative available. Despite this, the Supreme Court of North Dakota has ruled consistently to uphold the certification requirement. It is the opinion of the HSLDA legal staff that the North Dakota Supreme Court has not been using the appropriate standard to judge the law, and that the State needs to be held to a stricter burden of proof before it can be permitted to violate the religious beliefs of home schoolers.

The one justice in North Dakota who dissented from the Anderson and Dagley decisions stated in his dissent, “The State’s position is unacceptable because it offers neither explanation nor evidence about how or why its educational system would be significantly impaired or rendered ineffectual by recognizing a religious exemption.” 427 N.W.2d 316, 327. And again, he stated that,

We should expect more from the State. The State must affirmatively show us that its compulsory education program would not work if it granted a religious exemption to these defendants. Our responsibility is to strictly scrutinize the need for the State’s purpose to prevail over sincere religious convictions. 427 N.W.2d at 326.

HSLDA agrees with Justice Meschke’s statement of the situation, and with his dissenting opinion in the Anderson and Dagley cases, insofar as he recognized that the State had not met its burden of proving that certification was the least restrictive means available. Accordingly, we do not believe that it would be appropriate for other states to look to North Dakota as an example, and other states certainly should not feel obligated to follow North Dakota on the basis of the Supreme Court’s action, since the denial of the cert petition sets no precedent whatsoever, and says nothing about the merits of the case or of the certification requirement.