Victory In Michigan
On February 14, 1989, a Michigan judge struck down the Compliance Procedures which Michigan home schoolers have been required to follow. In Clonlara, Inc. v. Michigan State Board of Education, No. 86-57566, handled by attorney Kurt Berggren of Ann Arbor, Judge Thomas Brown of the Ingham County Circuit Court rendered a forty-five minute oral opinion in which he stated that the Compliance Procedures violated the rights of home schoolers. As a result, home schoolers are under no further obligation to follow the Compliance Procedures and the school districts are enjoined from enforcing them.
In his opinion, Judge Brown ruled:
“…that these procedures are violative of the plaintiffs’ [home schoolers’] rights, that they are vague, they are arbitrary, that they work an impossibility of performance on the part of the plaintiffs, that they are not certain from time to time wherein they stand, because of the…legally unfounded conditions which are set forth.” (p. 20 of the decision)
The Court also corrected some of the State Board of Education’s misinterpretation of the law. The Court declared that requirement for 180 days of instruction is not legal according to a recent decision by the State Supreme Court in Houghton Lake Community Schools v. State Board of Education. A home school or nonpublic school that provides instruction for fewer than 180 days only forfeits state aid.
Concerning certified teachers, the Court questioned the origin of the State Board's requirement that nonpublic schools file teaching certificates with the Intermediate School Districts. “Nonpublic schools don’t have to have on file with ISDs their certified teachers’ certificate because they’re considered by the state to be the highest sanctioned administrative unit within their structure.” (p. 7 of the decision).
The Court also attacked the vagueness of the law because it does not state how much time a certified teacher must teach, nor does it define what is proper instruction. Judge Brown wondered whether a student must have “daily personal contact [with a certified teacher]? There is nothing in the law that says that.”(p. 14) Furthermore, “there is no law that says any school has to teach social studies and science.”(p. 13) Also, since instruction does not take place for 180 days, it is unclear how many days a certified teacher has to teach.
Regarding the State Board’s authority even to enact regulations, the Court explained that the Board has “no statutory authority to pass rules…Calling these procedures rules or calling these rules procedures, doesn’t make them either.” (p. 2)
The effect of the Court’s ruling is a permanent injunction on the enforcement of the State Board’s Compliance Procedures. The State Board has announced that it will appeal only certain parts of the ruling concerning the subjects taught and the days of instruction. It is not contesting the injunction itself, however.
The home school climate in Michigan continues to be unsettled despite this victory. The court decision has caused additional confusion regarding how home schools should operate, thus providing more protection for home schooling families. HSLDA is continuing to advise members to act cautiously and responsibly.
Third Party Reporting
HSLDA is advising its members to continue filing information through the Third Party Reporting procedures, since this is the only remaining procedure applicable to home schools in Michigan. If a family is unable to utilize Third Party Reporting, they may file an affidavit with information about their home school program with the Intermediate School District. Members should contact HSLDA Attorney Chris Klicka if they need advice on how best to proceed.
DeJonge Case Argued
Meanwhile, on March 13, 1989, HSLDA Attorney Chris Klicka presented oral arguments before the Michigan Court of Appeals in State v. DeJonge, No. 106149. Klicka's main argument was that an improper constitutional test had been applied by the lower courts in DeJonge and by the Court of Appeals in the Sheridan Road case in 1984. If the “compelling interest” test (the constitutional test mandated by the U.S. Supreme Court) were applied in this case, the teacher certification requirement must give way to the DeJonge’s First Amendment right to exercise freely their religious beliefs in teaching their children.
Please pray for the Court of Appeals in Lansing in order that it will rule justly in this case. The decision will likely be handed down within the next six months.