The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site -



Opinion No. 5579

September 27, 1979


Education of child in parental home

A parent may not provide for the education of his or her child in the parental home unless a certified teacher is present to provide instruction comparable to that provided in the public school district.

Honorable Kerry Kammer

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion whether a parent may provide for his or her child's education at home without having a certified teacher present.

In 1976 PA 451, Sec. 1561, MCLA 390.1561; MSA 15.41561, the legislature has provided:

'(1) Except as provided in subsections (2) and (3), every parent, guardian, or other person in this state having control and charge of a child from the age of 6 to the child's sixteenth birthday, shall send that child to the public schools during the entire school year. . . .

(3) A child shall not be required to attend the public schools in the following cases:

(a) A child who is attending regularly and is being taught in a state approved nonpublic school, which teaches subjects comparable to those taught in the public schools to children of corresponding age and grade, as determined by the course of study for the public schools of the district within which the nonpublic school is located.'

The Legislature has provided for supervision of nonpublic schools in 1921 PA 302, MCLA 388.551 et seq; MSA 15.1921 et seq. That supervision includes teachers, courses of study and sanitary conditions.

In a letter opinion of the Attorney General to the Superintendent of Public Instruction on May 18, 1961, the question of whether a child could be educated at home by a certificated teacher was addressed. That opinion was based upon 1955 PA 269, Secs. 731 and 732, which have been superseded by substantially similar language in 1976 PA 451, Sec. 1561, supra, and upon 1921 PA 302, supra. That opinion, at pages 2 through 5, accurately states the present law. It reads as follows:

'The authority of the legislature to require parents to furnish education to their children is well settled. Meyer v Nebraska, 67 L ed 1042. However, the legislature has no right to compel parents to accept educational instruction from public teachers only. Pierce v The Society of the Sisters of the Holy Names of Jesus and Mary, 69 L ed 1070.

'Research of pertinent Michigan supreme court decisions fails to reveal any precedent in Michigan which would define the words 'private school' as used in section 732(a), supra.

'An examination of precedents in other jurisdiction reveals two lines of authority.

'The supreme court of the state of Illinois has considered the same question in People v Levison, 90 NE 2d 213, 14 ALR 2d 1364, where the respondent was convicted of violating a comparable compulsory education statute. The defense was made that the child was receiving private tutoring at home. The facts were that the child, a third grade student, was receiving five hours of instruction at home in comparable courses, the instruction being given by her mother, who had two years of college work and some training in educational psychology. Further, the child showed the academic proficiency of the average third grade student. It should be observed that the tutor in this case did not possess a teaching certificate. The Illinois court defined a school as a place where instruction is bestowed upon the young. The number of children being taught does not determine whether the place is a school so that the respondent was, in fact, providing an education in a private school for her child in her home, in lieu of attendance at the public school. But the court pointed out that the parents have a burden of showing that they have in good faith provided an adequate course of instruction in the prescribed branches of learning. Finally, the court held that the compulsory education statute was not enacted to punish those who provided their children with instruction which is equal or superior to that which may be obtained in the public schools.

'To the same effect is the decision of the Indiana supreme court in State v Peterman, 70 NE 550, and the decision of the Oklahoma supreme court in Wright v State, 209 P 179.

'The leading case which holds that the tutoring of the child at home even when it is rendered by qualified teaching personnel does not satisfy the compulsory education statute is State v Counort (Wash), 124 P 910, where the respondent was convicted of failing to send his children to a public or an approved private school. Respondent claimed that he was a qualified teacher and was, in fact, providing instruction to his children. The Washington court held that the nature of the private school is to be determined by the purpose, intent and character of the endeavor of providing instruction, so that the act of giving instruction to a child at home did not constitute attendance at an approved private school. It should be observed in Counort, supra, that the facts were undisputed that the children were seen playing around the house rather than receiving instruction.

'To like effect is the decision of the New Hampshire supreme court in State v Hoyt, 146 A 170, where the respondent was convicted of failing to cause his child to attend public schools. The defense was made that the child was being tutored at home. The court held that such a program did not constitute attendance at a school in that equivalency of the education could not be reasonably ascertained for it imposed an unreasonable burden of supervision upon the state.

'The weight of the decision in Counort, supra, as a precedent is diminished by the recent decision of the Washington supreme court in State v Superior Court, 346 P 2d 999, where the attendance of a child at a public or private school was sought to be required, even though the parents of the child were providing an education through instruction given by the mother. In a divided decision, the majority of the court held that the three elements of a school are the teacher, the pupil or pupils, and the place. While the parents had provided the place and the pupil, the parents failed to supply the teacher, in that instruction was given by the mother who was not qualified to teach in the state of Washington. Thus, the alleged private school would not qualify to satisfy the compulsory education statute. The import of this decision is inescapable that had the parents provided a certified or licensed teacher under Washington law, the instruction that was being given the child at home would have constituted attendance at a private school.

'The purposes of the Michigan compulsory education statute are plain. Parents are required to provide an education for thier children. . . .

'Where the parent or parents are properly certificated as teachers by the state of Michigan or provide a tutor possessed of a certificate from the state of Michigan to educate their child or children in courses that are comparable to the education received in the public school, it would appear that the parents are fulfilling the obligation imposed by law of educating their children.

'Under the decision in Levisen, supra, Peterman, supra, Wright, supra, and even in the recent Washington supreme court in State v Superior Court, supra, the tests of the definition of a private school are met when a properly certificated teacher is providing comparable education courses to a pupil at a place, which may be the home of the parents of the child.

'Nor is the reasoning of Hoyt, supra, necessarily determinative of another conclusion. The legislature has empowered the superintendent of public instruction, pursuant to the provisions contained in Act 302, PA 1921, as amended, to supervise private, denominational and parochial schools and to that end has expressly authorized the state's chief educational officer to determine that the teachers in private, denominational or parochial schools are properly certificated under section 1 of the act, and to determine that the courses of study are of the same standard as provided in the public schools under section 3 of the act. In addition, the superintendent of public instruction is authorized to determine that the sanitary conditions of private schools are of the same standard as provided in the general school laws of the state under section 1 of the act.

Where a private school employs a properly certificated teacher or teachers, offers courses of study which are of the same standard as provided in public schools, and observes sanitary conditions comparable to the public schools, the superintendent of public instruction is without authority to close such a private school.

'Therefore, it is the opinion of the Attorney General that a parent who holds a Michigan teacher's certificate and provides comparable educational instruction to his child or children in his home or employs a legally qualified tutor who provides comparable instruction to his child or children in his home and meets the sanitary conditions of the same standard as in the public schools, is complying with section 731 of the School Code of 1955, in that he is providing an education for his child or children at a private school.'

In view of the foregoing, the conclusion is compelled that a private school must utilize certificated teachers. Thus, it is my opinion that a parent may not provide for his or her child's education at home without having a certificated teacher providing instruction in courses comparable to those offered in the public school district in which the child resides.

Frank J. Kelley

Attorney General