Michigan Suffers Setback Before Court of Appeals
In Michigan, according to the compulsory attendance statute, all teachers, including home school teachers, must be certified. Iowa is the only other state in the entire country that still has such a restrictive requirement. This certification requirement has been upheld time and time again in the Michigan Courts. The recent DeJonge case is no different since Michigan Court of Appeals has once again upheld the “sacred cow” of teacher certification against private educators.
Michigan Case Precedent
In 1980, a Federal District Court ruled that non-religious home school parents who asserted their right to parental liberty under the Fourteenth Amendment, nonetheless have to submit to the certified teacher requirement because it is “reasonable.” Hanson v. Cushman, 490 F Supp. 109.
In 1984, the Michigan Court of Appeals ruled that Christian schools who asserted their First Amendment right to freely exercise their religious beliefs (teacher certification and state licensure violated their religious convictions) nevertheless had to submit to the certified teacher requirement because such a requirement is “reasonable.&rdquo Sheridan Road Baptist Church v. Department of Education, 348 NW 2d 263 (1984).
This same case was appealed and affirmed by a split vote of the Michigan Supreme Court. Three justices ruled that teacher certification was constitutional and the three dissenting justices declared that teacher certification violated the First Amendment rights of the Christian schools and parents. Sheridan Road Baptist Church v. Department of Education, 396 NW2d 373 (1986).
Third Party Procedure
By God's grace, the Christian schools were able to settle their case by obtaining an agreement from the state that their teachers could teach without a certified teacher as long as they had a college degree and submitted a Third Party Report. This agreement was confirmed by an order of the Ingham County Court. Sheridan Road Baptist Church v. Department of Education, No. 80-26205-AZ, May 2, 1988.
Since home schools are also considered private schools in Michigan, equal protection demands that they also have the right to use the Third Party Procedure. Attorney Dave Kallman, Dennis and Roxanne Smith of INCH, and other home school leaders met with Jim Phelps of the Department of Education and he agreed home schoolers could follow the Third Party Procedure. HSLDA's Chris Klicka and Dave Kallman immediately prepared a form and arranged a means for all HSLDA members who wanted to participate to file according to this Third Party Procedure. In spite of objections of the State Department of Education, this procedure along with numerous letters from Chris Klicka to school districts throughout the state, enabled nearly 300 HSLDA members to avoid prosecution since they did not have certified teachers.
Court of Appeals Rules Against DeJonges
Meanwhile, the DeJonge case, involving an HSLDA home school family charged with criminal truancy, which started way back in 1984, has been working its way up the legal appeal ladder. Last year, HSLDA's Chris Klicka and local counsel Dave Kallman of Lansing appealed the DeJonge's conviction to the Court of Appeals and the Court agreed to take the case. Chris Klicka argued the case before the Court in March. Klicka's main object was to get the Court of Appeals to reverse the precedent set by the Court of Appeals in the Sheridan Road case. Klicka argued that certification does not pass the U. S. Supreme Court's “compelling interest test” which requires the state to prove that its regulation of teacher certification is both “necessary” for children to be literate and the “least restrictive means” for the state to achieve its interest in literacy.
On August 9, 1989, the Court of Appeals rendered its decision against the DeJonges, refusing to reverse the former precedent of Sheridan and Hanson. (State v. DeJonge, No. 106149). The Court ruled “that the certification requirement is the least obtrusive means of achieving the state's interest” in spite of the fact that HSLDA documented 48 other states that had less restrictive requirements on home schoolers. The Court also disagreed with HSLDA's argument that since the DeJonges' children were scoring above average on their standardized tests and since their academic achievements were excellent according to experts, curriculum and attendance requirements were sufficient regulations. HSLDA argued that teacher certification was not needed. The Court stated:
Curriculum and attendance requirements ensure that the student and the educational material are in the same place at the same time. However, they do nothing to ensure that the material is imparted to the child in such a way as to be understandable. Alone they are unlikely to stimulate intellectual curiosity and inquiry or to cause that fascinating conjunction of superficially incompatible facts that is creative thought.
Since when is the state supposed to regulate the extent that “intellectual curiosity” is “stimulated” and the extent to which “that fascinating conjunction of superficially incompatible facts” is achieved? This assertion is ridiculous in light of the fact that the U. S. Supreme Court has stated time and time again that the interest of the state in education is limited to literacy and the ultimate self sufficiency of the student. What about the 27 million illiterate students in America that have been educated by certified teachers?
The evidence is overwhelming that teacher certification does not guarantee performance of the teacher or the education of the student. In the May 1989 issue of the scholarly Educational Research magazine, Dr. Eric Hanushek of the University of Rochester surveyed 113 studies on teacher education and qualifications. He found that 88.5% of the studies found no positive correlation between education performance of the student and the teacher's education. Only 7% of the studies found a positive impact of a teacher's education on the student’s performance and 4.5% found a negative impact.
Yet, the Court of Appeals insists that “the teacher certification requirement is a backbone in protection” of quality education.
HSLDA is Appealing to the Michigan Supreme Court
As a result of the many errors in the DeJonge decision, HSLDA is appealing the case to the Michigan Supreme Court. Michael Farris, President of HLSDA, and Chris Klicka will be preparing the brief. The Michigan Supreme Court has the discretion to take the case or not take it.
HSLDA believes the make up of the Court is favorable and that the Justices will want to hear the case since the main dissenting Justice against certification in the Sheridan Road case is now the Chief Justice and the other two dissenting Justices are still on the bench. Of the three Justices who ruled in favor of certification in Sheridan, only two are still on the bench. There are also two new Justices on the bench who have not yet dealt with the issue.
How Will the DeJonge Decision Affect Home Schooling in Michigan?
HSLDA does not believe the DeJonge decision will change anything because the Court merely repeated the precedence that was already in effect in the State. In other words, since the bad precedence is already set, the DeJonge case has everything to gain (i.e. reversal of Sheridan) and really nothing to lose.
Meanwhile, HSLDA recommends its members to continue following the Third Party procedure like they did last year. Thos who have already filed do not need to file again this year. Since the Clonlara case ruled the state's “Home School Compliance Procedures” unconstitutional, the state has no authority to require home schoolers to give them information on their qualifications. This means, at present, home schoolers do not have to fill out anymore “Home School Membership Report” forms. The Third Party Reporting Procedure is the only procedure left.
If the state would decide to begin prosecuting HSLDA members this year, HSLDA is prepared to bring a class action suit or a Federal Civil Rights action in order to protect all HSLDA members.
We will trust the Lord that He will continue to protect the home schoolers like He has been miraculously doing these past several years. Although Michigan Courts and laws are against home schoolers, thousands of home schoolers are successfully home schooling free from prosecution.