The Home School Court Report
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Early Spring 1988
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Cover Stories

Is Certification Compelling?

Victory in Ohio

Contact Countdown

Negotiations in New Hampshire

Legislative Update

Farris Before President’s Commission

States in brief . . .

HR 5 update: School Improvement Act of 1987

Superintendent Declares Homeschooling Illegal in Illinois

Iowa on Hold

Pennsylvania: Worst State of the Year

School Boards Prosecute, Not Protect, Religious Freedoms

Superintendent Smokescreen

Climate in California


President’s Corner

Across the States

C O V E R   S T O R Y

Is Certification Compelling?

by Chris Klicka

From time to time, the courts rule against homeschoolers even though the families are homeschooling based on their religious beliefs. This is discouraging to many of us because it seems the right of the state is elevated above the First Amendment rights of parents to freely exercise their religious beliefs. It is also an affront to the fact that God has given parents alone the authority and responsibility to teach their children. However, a closer analysis will show that most of these cases involve an improper application of the “compelling interest” test which was created by the U.S. Supreme Court to elevate the First Amendment above the interest of the state, rather than the reverse. If courts can be made aware of the proper constitutional test to be applied to free-exercise-of-religion claims, religious freedom will once again be protected in our country.

The most recent example of an improper application of the “compelling interest” test is found in Michigan v. DeJonge (No. 12593-4-AR, Circuit Court, County of Ottawa). On December 30, 1987, the circuit court affirmed the convictions of Mr. and Mrs. DeJonge who were homeschooling without being certified to teach, and remanded the matter back to the district court for sentencing.

Since I had been representing the family, I immediately appealed the case to the Michigan Court of Appeals requesting that they hear the case. In my brief, I argued several issues demonstrating that the circuit court erred by denying the family their due-process rights. The most significant error involves the denial of the DeJonges’ right to freely exercise their religious beliefs which occurred because the court relied on the wrong constitutional test. This same error, unfortunately, has appeared in several negative homeschool decisions in both North Dakota and Iowa (both of which are states which require all homeschool teachers to be certified).

“Reasonable relation” test vs. “compelling interest” test

In DeJonge, the circuit court relied on an earlier Michigan Court of Appeals decision, Sheridan Road Baptist Church v. Department of Education, 348 N.W. 2d. 263 (Mich. App. 1984). In Sheridan, the court applied the “reasonable relation” test instead of the “compelling interest” test when determining if the state requirement that all teachers be certified overrides the Christian schools’ right to freely exercise their religious beliefs. The DeJonges’ religious beliefs require them to personally teach their own children. Since neither parent is certified, they are prohibited from exercising their religious belief to personally teach their children.

The difference in the two tests is crucial. In the “reasonable relation” test, the state only needs to prove that teacher certification is a reasonable means of fulfilling the state's interest that children receive a “basic education.” That is easy for the state to prove. (It is important to point out that the U.S. Supreme Court has recognized the interest of the state to be very limited: namely, that children become literate in order to be able to vote, and that they become self-sufficient. See Wisconsin v. Yoder, 406 U.S. 205, at 221.)

On the other hand, the “compelling interest” test requires the state to prove with evidence that teacher certification is “essential” for the state to fulfill its objective that children are educated. In addition to carrying that burden, the state has to also prove that teacher certification is the least restrictive means of fulfilling the state’s objective that children receive a basic education. This test is much more difficult for the state to prove, if not impossible.

In Sheridan, the state only proved that teacher certification is a reasonable means of achieving the state’s objective (Sheridan, 348 N.W. 2d. at 269). However, according to the U.S. Supreme Court, that is not sufficient:

When the interests of parenthood are combined with a free exercise claim . . . more than merely a reasonable relation to some purpose within the competency of the state is required to sustain the validity of the state’s requirement under the first amendment.

Wisconsin v. Yoder, 406 U.S. 205, 233 (1972). After the U.S. Supreme Court specifically rejected the “reasonable relation” test, they replaced it with a higher standard of review, the “compelling interest” test. [This test was first applied in Sherbert v. Verner, 374 U.S. 398 (1963).]

Teacher certification is not “essential”

If the circuit court in DeJonge would have properly applied the “compelling interest” test, the state could not have carried its burden of proving that teacher certification is “essential” to a fulfillment of the state interest that children receive a basic education. The DeJonges submitted evidence and the trial court acknowledged that the children were being educated, without the use of a certified teacher. Therefore, the two-fold interest of the state is, in fact, being achieved without the requirement of certification. Granting the DeJonges a religious exemption from teacher certification would not present any “grave and immediate” danger to the state’s interest in literacy and self-sufficiency.

Since the DeJonge children are being educated without a certified teacher, it is clear the state cannot prove that teacher certification is “essential&” to satisfy the state’s limited interest. [See U.S. v. Lee, 455 U.S. 252, 257–259 (1982) for a full discussion of the necessity of the state to prove that its limitation on religious liberty is “essential to accomplish its overriding governmental interest.”]

In addition, there is not one study in existence that establishes that teacher certification makes any difference at all as to whether a child will be literate. On the other hand, there are dozens of studies by educational experts and state boards of education which establish that homeschooling works. In fact, on the average, homeschooled children score in the 80% on nationally recognized standardized achievement tests. Of course, we are all aware of the fact that the public school system, which requires its teachers to be certified, has turned out over 30 million illiterate graduates during the last several years. This has caused Xerox Chairman David Kearns to recently denounce public schools as a “failed monopoly” producing workers “with a 50% defect rate.” Business must hire workers “who cannot read, write or count,” he said—then spend $25 billion a year to train them (“Defect Rate 50% from USA Schools,” USA Today, October 27, 1987). It is very apparent that teacher certification is by no means “essential” to the state’s compelling interest in literacy or self-sufficiency.

Teacher certification is not the least restrictive means

Furthermore, if the circuit court in DeJonge would have properly applied the “compelling interest” test, the state could not have carried its second burden of proving that mandatory teacher certification is the “least restrictive means” of fulfilling the state’s interest in literacy.

At present, 47 states do not have a blanket requirement that all teachers must be certified. In fact none of these states have any statutes or regulations that require homeschoolers to be certified. In all of these states, homeschooled children are being educated successfully without teacher certification. Twenty-three of these states have recently passed homeschool laws that only require the homeschooler to send in an annual notice of intent providing assurance that certain subjects will be covered, and an evaluation or standardized test must be given each year or every other year.

It is clear that there are many “less restrictive means” to fulfill the state’s interest existing in 47 other states. The state of Michigan has to “prove it is employing the least restrictive means of achieving its goal.” [See Thomas v. Review Board, 450 U.S. 707, 718 (1981), and New Life Baptist Church Academy v. East Longmeadow, 666 F.Supp.293 (D. Mass. 1987).] If the “compelling interest” was properly and objectively applied as mandated by the U.S. Supreme Court, the state of Michigan could not carry its burden because it is not the “least restrictive means.” Thus it could not justify its limitation on the DeJonges’ religious liberty and a religious exemption from certification would have been granted to the family.


Proper application of the “compelling interest” test will make the difference between whether the state can prohibit you and your family from exercising your religious beliefs to homeschool or not. Pray that God will open the eyes of the courts, especially in the three states where certification is required or in states where a homeschool has to be “approved.” Pray that the courts will properly apply the “compelling interest” test so that they will once again protect the religious freedoms our country was founded upon.