Michigan Home Schooling - State Laws & Regulations

Please Note This Important Notice: Michigan home schooling laws and regulations cannot be summarized in a short informational page or overview. It is incumbent upon you to perform due diligence in researching and familiarizing yourself with your state's legal's and regulations as they pertain to homeschooling. This information is provided for you to give you a starting point. This is not intended to be legal advice and is distributed for basic informational purposes only. For more information about the laws and regulations in this state please contact a state or local support group or your public library.

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Information on Home Schools (12 pages)

Attachment A - Compulsory School Attendence

Attachment B - Nonpublic School Act of 1921

Attachment B-1 - Exemption (f) Home Schools

Attachment C - People v DeJonge

Attachment D - What is required for a person to become certified to teach in Michigan?

Attachment E - Teacher Criminal History Check

Attachment E1 - Teacher Criminal History Check

Attachment F - Unprofessional Conduct Check

Attachment G - Snyder v Charlotte Schools

Forms

Non Public School Membership Report (SM4325)

Instructions for Completing the Non Public School Membership Report (SM4325)

Correspondence related to the Non Public School Membership Report (SM4325)

HOME EDUCATION LAW IN MICHIGAN

ONE FATHER'S PERSPECTIVE

By Paul L. Bricker

September 2, 1996

On June 27, 1996, the Governor signed into law 1996 Public Act 339 which clarified the exemption provisions of the compulsory attendance law as they pertain to home education. This law returned to families the freedom that had been won in the Michigan Supreme Court in May, 1993 with the decisions in Clonlara, DeJonge and Bennett. Since then, the Michigan Department of Education has issued a Question and Answer interpretation which does not provide explicit direction to the local school districts, but may prove misleading if not analyzed closely. This would seem to be an appropriate time to summarize the current state of home education law in Michigan, for the benefit of families and local officials.

This perspective is the opinion of one father who has been home educating his children in Michigan since they were born (they are now 4, 6 and 8). He is an attorney who earns his daily bread practicing law. He is not in private practice, but works for the People of the State of Michigan as a prosecutor, and is not allowed to practice law other than in his official duties. Consequently, he has no vested interest in home school litigation other than as a home educating parent. Others may have different interests, whether ideological or pecuniary. The author of this perspective is only interested in ensuring that his family can grow and learn in peace and stability with the least amount of unwanted interference from officious authorities, be they religious or civil. The opinions expressed in this perspective are the author's own and do not reflect any official interpretation.

The first and most basic question is "IS IT LEGAL TO HOME SCHOOL IN MICHIGAN?" The clear answer to this is YES. No one is precluded from home educating their children in Michigan. You do not need religious reasons for this. You do not even have to have ideological reasons for this. Even a mere desire to avoid having your children exposed to the wretched public school system is sufficient.

Among questions which may be asked are the following. First, "MUST I REGISTER WITH ANYONE TO HOMESCHOOL LEGALLY?" The short and almost always accurate answer is NO, YOU DO NOT HAVE TO REGISTER WITH ANYONE TO HOME SCHOOL LEGALLY. However, as in most matters, there are exceptions to the normal answer. To understand this answer, and its exception, you must understand how the law works, that is, what is the statutory and case law framework that has developed in Michigan.

Part 24 of the Revised School Code is entitled "Compulsory Attendance" and requires that parents having children between the ages of six and sixteen must send those children to the public school in their district during the times that the schools are open. However, the law provides for certain exemptions to this requirement. Those exemptions are contained in subsection (3) of the compulsory attendance law, Section 1561. The most common exemption is for those children attending a non-public school, subsection (3)(a).

In May, 1993, the Michigan Supreme Court ruled, in a series of cases [Clonlara, DeJonge and Bennett], that home schooling families were non-public schools for purposes of the compulsory attendance law [Clonlara]. So after May, 1993, home schooling families were considered to be non-public schools, just as any institutional private, denominational or parochial school. And as non-public schools, home schooling families are entitled to the same due process protections as institutional non-public schools [Bennett]. Thus, there must be a hearing by the Michigan Department of Education under the Non-Public Schools Act before any home schooling family can be declared to be not under the Non-Public School Act and the children required to attend the public schools. Only then could a family be prosecuted criminally for truancy.

There is no requirement in the Non-Public School Act requiring non-public schools, including home schooling families, to register with the Department of Education. However, a non-public school does have the duty to provide the Department of Education with certain information and to permit certain inspections after the Department of Education has commenced an investigation of the non-public school's compliance with the Non-Public School Act. Thus, a home schooling family must fill out form SM 4325 when requested by the Department of Education or risk a hearing for non-compliance.

The Department of Education only has power to investigate complaints against non-public schools and disapprove of those schools. It should be noted that the Department of Education has never, ever held such a disapproval hearing, let alone disapproved of a non-public school. Further, local and intermediate school districts have no jurisdiction over non-public schools, only the Michigan Department of Education has jurisdiction.

Consequently, after those cases, home schooling families in Michigan were required to take no formal, legal steps to home school in Michigan. The situation for home schooling in Michigan was so favorable that the Home School Legal Defense Association (HSLDA) after the decision in those cases called Michigan "The five best states" in which to home school in the country.

The hearing procedure required by the Michigan Supreme Court in Bennett effectively freed home schooling families from any regulation since the local districts had no authority over non-public schools and the state Department of Education had no mechanism in place for holding hearings. Further, the Supreme Court in Clonlara had held that the state Department of Education had no authority under the Non-Public Schools Act to promulgate regulations concerning home schooling families. They could merely enforce the statute. Thus home schooling families in Michigan, whether homeschooling for religious reasons or not, did not have to register with any authorities, they had no bureaucratic regulations to follow and the local authorities had no authority over home schooling families. This was the idyllic situation in Michigan--there was peace between home schooling families and educational authorities, and families were free to do what they wished with regard to home schooling. While theoretically there was a potential for harassment of home schoolers by the state Department of Education or local authorities acting through social services agencies, there has been no such harassment in fact for the past five years according to HSLDA's leading attorney in Michigan.

This was the state of the law until the Legislature enacted the Revised School Code in December, 1995. Under the influence of a misguided state senator [he admitted this when faced with the problems created by the Revised School Code] who was a new home schooler, the Senate inserted a provision defining home-schooling in terms of a separate exemption to the compulsory attendance law, the infamous subsection (3)(f). This so-called exemption was made even more onerous in the Michigan House under the guidance of a home-schooling representative who was closely allied with HSLDA. The exemption was expanded in the House to include standards that would have permitted local school district officials to closely regulate home schooling families. Most importantly, the legislative change defining home schooling upset the status quo that had been in place since the Supreme Court decisions two and a half years earlier. There would inevitably be a new round of law suits and prosecutions, with uncertain results, to interpret and clarify the new law. Our peace had been shattered. The legal situation surrounding home-schooling was neither certain nor clear.

As soon as those in the home schooling community realized what had been done to them, a coalition of home schooling families was formed of those opposed to the change in the law. From this coalition, two approaches were developed. First, an effort would be made to obtain the repeal of the new law to return the legal situation to the peace we had after the 1993 Michigan Supreme Court decisions. Second, a network would be formed to keep home schooling families aware of developments that could affect them. This was the origin of the Home Education Communication Network of Michigan [HECNM], which may become operational in the near future. The repeal of subsection (3)(f) was opposed by the Information Network for Christian Homes [INCH] and HSLDA. They claimed that the new law was a major improvement!!

Working with both conservative Republicans and liberal Democrats, a bipartisan coalition of Representatives was formed in the House to repeal subsection (3)(f). While the vast majority of the House members would have voted for a straight repeal, the House Republican leadership prohibited a straight repeal of subsection (3)(f). They insisted that a compromise be worked out. That compromise included an amendment of (3)(f) to remove the most onerous of the provisions that had been inserted in the House and the addition of a subsection (4) that explicitly gave home schooling families the option of being exempt from attendance at public school under the Revised School Code under either (3)(a) or (3)(f) or both. After much effort by many members of the home schooling coalition (including the author), the compromise was adopted by the Legislature and became 1996 Public Act 339 upon the Governor's signature. PA 339 amended Section 1561 of the Revised School Code as it pertains to the exemptions to the compulsory attendance law.

With two possible exemptions available to home schooling families, HOW AND WHEN SHOULD A HOME SCHOOLING FAMILY CHOOSE WHICH EXEMPTION (OR BOTH) IT WISHES TO OPERATE UNDER? A basic rule that lawyers frequently give to clients is not to make a binding choice until it is necessary or desirable to do so. It should be kept in mind that the exemptions we have been talking about in subsection (3) are ultimately defenses to a criminal charge that parents have violated the compulsory attendance (truancy) law of subsection (1). Thus, until parents have been charged with truancy, they do not need to make a formal choice. However, prudence would dictate that it would be better not to be hauled into court before making a choice. But no parents can be charged with truancy until they have been given due process rights (that is, a hearing) under either a state Department of Education hearing under the Non-Public School Act or under the provisions of Part 24 of the Revised School Code before the local truancy officer. THUS HOME SCHOOLING PARENTS DO NOT HAVE TO MAKE A CHOICE OF WHICH EXEMPTION TO OPERATE UNDER UNTIL AFTER THEY HAVE BEEN CONFRONTED BY EITHER STATE OR LOCAL OFFICIALS.

If the officials don't come knocking, a home schooling family does not have to do anything. But, prudence indicates that it would be better to know what the choices are before the officials show up. SO, HOW DO I CHOOSE TO HOMESCHOOL UNDER EXEMPTION (3)(a) or (3)(f) or "BOTH" ? Since the law was settled under (3)(a), if a home schooling family wants to operate knowing what the law is, IT WOULD SEEM THAT (3)(A) IS THE BETTER CHOICE BY FAR. Since (3)(f) is new, there are many unanswered questions about (3)(f). QUESTIONS UNDER (3)(f) MAY LIKELY BE RESOLVED WITH LITIGATION. If a home schooling family wishes to become a test case for the new law, I am certain that certain attorneys would be more than happy to represent them in court, especially if it can become a prominent, newsworthy appellate case. [The process, including appeals can take 6 to 10 years to complete, so a family could be in the papers and on TV for an extended period of time, such as the current Maryland case. The Bennett and DeJonge families were in court for 8 years, including appeals to three higher courts from the court that convicted them.]

The Michigan Department of Education (and most legal authorities agree with this) takes the position that regulation of home schooling families under (3)(f) is within the jurisdiction of the local school districts and not the state. If your local school district is friendly and welcomes and assists home schooling families with open arms and a cooperative spirit, then you might consider choosing (3)(f). However, given the current antipathy of the education establishment toward home schooling in general, and the fact that every home schooling child costs the local district its annual dole from state funds of $5,000 or more, it is unlikely that many home schooling families will find themselves in a local school district that favors home schooling families. Consequently, it might be more prudent for a family to make discreet inquiries about their local district's attitudes toward home schooling rather than contacting the local district directly, since once you contact them, they know who you are.

AM I REQUIRED TO COMPLETE FORM SM 4325? If the Michigan Department of Education has requested that a home schooling family fill out and complete this form, then a family failing to comply could be considered to be in violation of the Non-Public School Act, and the Department of Education could hold a hearing to determine if the Non-Public School Act has been violated. Considering that the Department of Education has never held a hearing, there would appear to be a minimal or small risk in not returning the form. But in any case, NO HOME SCHOOLING FAMILY IS REQUIRED TO REQUEST FORM SM 4325 FROM THE STATE DEPARTMENT OF EDUCATION. It is not the family's responsibility to inform the state of their home schooling status.

Some local schools districts and Intermediate School Districts [ISD's] have interpreted the July, 1996 Questions and Answers sent to them by the state Department of Education to mean that any home schooling family that has not filled out form SM 4325 is automatically under exemption (3)(f), and thus under their jurisdiction. However, THE STATE DEPARTMENT OF EDUCATION DOES NOT STATE THAT HOME SCHOOLING FAMILIES MUST FILE FORM SM 4325 TO BE UNDER EXEMPTION (3)(a). THE DEPARTMENT OF EDUCATION STATES THAT: "IF A HOME SCHOOL FAMILY CHOOSES TO OPERATE UNDER EXEMPTION (a), IT SHOULD REGISTER WITH THE MICHIGAN DEPARTMENT OF EDUCATION." [emphasis added] The state Department of Education does not say that a family MUST register, merely that the family SHOULD register. This is a major change from the state Department of Education's previous interpretation of the statute.

IF A FAMILY TELLS THE LOCAL OFFICIALS THAT THEY ARE OPERATING UNDER EXEMPTION (3)(a) ONLY, THEN THE LOCAL OFFICIALS HAVE NO JURISDICTION. Only the state Department of Education can inquire further about the home schooling family. What will likely happen then is that the local officials will refer the home schooling family's name and address to the state Department of Education. The state will then send the family Form 4325 and request that it be filled out and returned. We have been told by the state that they send out approximately 300 forms per month to home schooling families, but that only about 20% of the forms are returned. The rest of the families have not been re-contacted by the state according to our information.

WHAT IS THE FAMILY INDEPENDENCE AGENCY (FORMERLY DEPT OF SOCIAL SERVICES) POLICY REGARDING INVESTIGATION OF HOMESCHOOLS? Basically, the Child Protective Services officials will not investigate a complaint where the only allegation of neglect or abuse is that the family is home schooling, according to guidelines in force since at least 1989. If there are other allegations of abuse or neglect, then a Protective Services investigation is appropriate. In spite of this, IF YOU ARE CONTACTED BY PROTECTIVE SERVICES AGENTS, FIRST OBTAIN FROM THEM THE EXACT NATURE OF THE COMPLAINT. If it is that you are home schooling and your kids are running around wild all the time, you can explain that homeschooling involves non-traditional hours of attendance at instruction. If it is other than that, or if they refuse to tell you what the allegations are, please tell them that your attorney will contact them and then show them the door. You don't have to tell them who your attorney is. Then contact and get help from your support group, other home schoolers, your minister, etc. While the author is loath to tell people to run to an attorney for every contact with state or local officials, there are times when it is appropriate. This would appear to be one of those times.

Some final words. THERE IS NO REASON FOR ANY FAMILY TO BE AFRAID TO HOME EDUCATE THEIR CHILDREN, OR TO BE AFRAID OF LOCAL OR STATE OFFICIALS IF THEY ARE DOING SO. HOME EDUCATION HAS PROVEN ITSELF TIME AND AGAIN TO PROVIDE A SUPERIOR EDUCATION TO THAT PROVIDED BY INSTITUTIONAL SCHOOLS, WHETHER PUBLIC OR PRIVATE. WE HAVE THE LAW ON OUR SIDE. We can continue to home educate our children peaceably as we have done for the past few years. The uncertainty and danger posed by the Legislature's unwise change in the law by the adoption of (3)(f) has been largely neutralized by the passage of 1996 PA 339.

NThe officials, whether state, ISD or local are our enemies. Most genuinely have the interests of children in their hearts. However, they are operating out of a bureaucratic, functionary mentality. They do not wish confrontation any more than we wish to have confrontation. If you can patiently explain to them your position, you may be able to help them resolve any confusion they might have with regard to the law of home schooling in Michigan. Even bureaucrats are human and can make mistakes. But in the end, it is the public policy of our society to encourage the education of our children. We are families educating our children. That is all that is required.

As with all opinions, this one states positions that not all will agree with. However, with charity and an open mind, we should be able to resolve any problems that may arise in a way that will help us in our mission of educating our children.

Sincerely,
Paul L. Bricker

PERMISSION IS GRANTED TO REPRODUCE AND DISTRIBUTE THIS PERSPECTIVE IN ITS ENTIRETY ONLY. IF IT IS DESIRED TO EXTRACT ANY PORTION OF THIS PERSPECTIVE, PLEASE CONTACT THE AUTHOR FOR PERMISSION. THE AUTHOR MAY BE CONTACTED VIA E-MAIL AT: bricker@michbar.org YOUR COMMENTS AND SUGGESTIONS ARE WELCOME.

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