Education Opinion

The Limits of ‘Compelling Interest’ In the Education of Young Citizens

By Neal Devins — February 01, 1984 9 min read
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How compelling is a state’s interest in ensuring that its young receive an adequate education? How does that state interest compare with parents’ right to direct the educational and religious upbringing of their children? And can a “home” legally constitute a “school” in states that prohibit home instruction? These fundamental questions are the subject of two lawsuits over North Carolina’s prohibition of home instruction.

The most important of these cases, Duro v. District Attorney, was the first home-schooling case to be heard in a federal court of appeals. Last summer, the U.S. Court of Appeals for the Fourth Circuit upheld North Carolina’s ban on home instruction, saying that the state’s interest in the education of its citizens outweighs the religious interests of parents who wish to teach their children at home. The appellate court overturned an earlier federal-district-court ruling that the state’s education interest had been made hollow by the state’s 1979 deregulation of private schools. Last week, the U.S. Supreme Court, without comment, decided not to hear the case.

In the second case, Delconte v. State, a state trial court held last year that a home school can qualify as a private school by satisfying state requirements for nonpublic schools. The North Carolina court of appeals reversed this decision in December. The state supreme court is now considering whether to hear an appeal in this case, though it is probably unlikely that this court would overturn the result of Duro.

Several cases involving home instruction are now in progress around the country, but the North Carolina cases are particularly important for two reasons:

First, unlike other cases that involve state authority to regulate home instruction, North Carolina raises the more fundamental question of whether a state can absolutely prohibit home instruction.

Second, because the Duro case has gone as far as the federal appeals-court level, it will serve as a strong precedent even though the Supreme Court decided not to hear it. Thus, the North Carolina lawsuits will help establish the parameters of legitimate state authority over home instruction. The Supreme Court’s refusal to hear the Duro case means that, for now, any state in the fourth circuit clearly can prohibit home instruction. The fact that a federal appeals court upheld North Carolina’s absolute prohibition of home instruction suggests that states that do permit home instruction have absolute authority to regulate it.

Currently, there is incredible variance even in the states that allow some form of home instruction about what type of home instruction satisfies state compulsory-education laws. In Louisiana, for example, parents need only sign a form pledging that they will teach their child at home. At the other extreme among states that allow home instruction, Michigan requires that “teachers for home instruction must be certified and instruction must be comparable to that provided in public schools.”

This issue is of national concern because a growing number of families are teaching their children at home, and more and more of these families are legally challenging state regulations to gain greater control of their “home school.” Currently, there are lawsuits pending in several states, including Kansas, Maryland, Michigan, and North Carolina.

In North Carolina, parents challenging state prohibition of home schooling emphasize that they have a constitutional right to direct the upbringing of their children. This right was originally set forth in a 1925 U.S. Supreme Court decision, Pierce v. Society of Sisters, which invalidated an Oregon statute that required all children to attend public schools.

The Court ruled that the state could not outlaw private schooling because "[t]he fundamental theory of liberty upon which all government in this Union repose [sic], excludes any general power of the state to standardize its children. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

North Carolina parents also claim that their child-rearing interest is especially forceful because they feel compelled to teach their children at home for religious reasons. In support of this claim, these parents point to a 1972 Supreme Court decision, Wisconsin v. Yoder, which permitted Amish parents to remove their children from public schools after the 8th grade. The Yoder decision places a significant burden on the state to justify an infringement on religious liberty--namely, “that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”

North Carolina officials claim that, in order to ensure the adequate education of its young, the state may limit the scope of this right. In regard to state regulation of private schools, the U.S. Supreme Court has recognized (in the 1968 decision, Board of Education v. Allen) that “if the state must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function.” North Carolina claims that although it cannot eliminate private schools, there are good reasons for it to stop home-instruction. A state brief in the Duro case argues:

“In the home-instruction situation, the existence or nonexistence of any education is solely dependent upon the motivation and the ability of the child’s parents. And, unlike nonpublic schools, the state cannot rely upon the existence of collective market forces in the form of parental demands and concerns to assure that children have access to an education and that the education provided will be of some minimum quality.”

The balancing of parental and state interests in North Carolina is especially complicated because of a 1979 state law that effectively deregulated nonpublic schools. Under this law, a nonpublic school can satisfy state standards merely by maintaining attendance and disease-immunization records and by periodically administering a nationally-recognized student-competency examination.

The courts’ understanding of this law has been used to determine both North Carolina cases. In Duro, the federal district court held that North Carolina had a weak interest in education (as evidenced by its deregulation of private schools). The court said, in effect, that if the state does not regulate private schools, it lacks authority to regulate home schools. (The court of appeals rejected that argument.)

In Delconte, the trial court said that the Delconte home was a school under North Carolina law.

Again, the major issue in these cases is the general question of whether the state can prohibit home instruction. Court decisions on this matter are unclear. This is due, in part, to the failure of lawyers representing both parents and the states either to raise the “parental rights” issue or to garner sufficient evidence to support such a claim.

Some courts have addressed the issue of whether parents have a constitutional right to teach their children at home, but because home instruction is permitted in states that have addressed this issue, these decisions are of limited value as precedents. Yet, these cases do point to a fundamental disagreement among courts about the nature of parents’ right to direct their child’s upbringing.

In Michigan, for example, a federal district court held (in the 1980 Hanson v. Cushman decision) that "[parents] have cited no cases to the court that have held that parents have a fundamental constitutional right to educate their children at home, nor has the court’s research uncovered any.” In stark contrast to this ruling, a Massachusetts trial court held (in the 1978 Perchimettes v. Frizzle decision) that "[all] parents have the right to choose from the full range of educational alternatives for their children... Without doubt, then, the Massachusetts compulsory-attendance statute might well be constitutionally infirm if it did not [contain a home-study exemption].”

Even had the Supreme Court agreed to hear Duro, however, it is unlikely that the case (which is essentially a religious-liberty challenge) would have resolved the issue of whether parents have a nonreligious constitutional right to educate at home.

The appellate court rejected the parent’s claim in Duro because “Duro [the parent] has not demonstrated that home instruction will prepare his children to be self-sufficient participants in our modern society or enable them to participate intelligently in our political system....”

The court distinguished Duro from Wisconsin v. Yoder, in part, because of the self-contained nature of the Amish community. The Duro court viewed socialization to be an essential component of compulsory education.

This distinction between Yoder and Duro, made at the appellate-court level, is a false one. Pierce suggests that parents have a right to shape the contours of their children’s education. Consequently, it appears that academic achievement, rather than socialization, is the essence of the state’s compelling interest in education. Therefore, the Duro court was wrong to emphasize socialization, and a Supreme Court reversal of the decision would have seemed appropriate.

Yet, even if the Supreme Court had reversed the appellate-court ruling, North Carolina could have insisted that home schools satisfy state regulations governing nonpublic schools (or the state could even develop a set of regulations specifically governing home instruction).

The absolute reliance on parents in the home-instruction situation might justify the establishment of regulations designed to ensure that parents are serving as competent educators. Consequently, the state should be permitted to devise two sets of standards--one governing home instruction and the other governing private schools.

North Carolina’s Duro and Delconte lawsuits point to the larger problem of respecting both the state’s interest in ensuring that each child receives an adequate education and the parents’ right to shape that educational experience. A state should not be allowed to completely prohibit home instruction. Absolutist legislation such as North Carolina’s “no exceptions” statute invites the type of judicial challenge found in North Carolina.

And considering the risks that each side takes when these cases go to court, this parents/states controversy would be better settled through the enactment of balanced legislation that respects the interests of both sides. Such legislation would respect parents’ fundamental right to direct the upbringing of their children by permitting a meaningful home-study option.

But the state also should be able to protect its interest in producing an educated populace through the establishment of core-curriculum requirements, minimum academic-achievement standards (as measured in nationally recognized competency examinations), and standards demanding regular hours of instruction.

Regulations such as teacher certification and comprehensive curriculum requirements should not be established, because they could make the home-study option virtually meaningless. Until the state legislatures enact such balanced measures, however, fundamental questions of education policy will continue to be resolved by the courts.

A version of this article appeared in the February 01, 1984 edition of Education Week as The Limits of ‘Compelling Interest’ In the Education of Young Citizens


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