•Indicates regulation by a separate deparment. 1) Health and Pire standards are mandatory through the Health Department and Fire Marshall respectively. 2) See exemption provision applicable to certain religious groups under Iowa, infra p. 153. 3) Minimum standards have been held unconstitutional as applied to religious schools in Ohio, see infra p. 182. State courts which have applied Yoder to state regulations have reached varying conclusions using varying rationales. See, e.g., Kentucky State Board of Education v. Rudasill, 589 S.W.2d 877 (Ky. 1979)(striking regs, relying on stricter conscience provisions of Kentucky Constitution); Sheridan Road Baptist Church v. State of Michigan, Dept. of Education, No. 80-26205-A (Circuit Court, Ingham County, December 29, 1982) (striking state law) (slip opinion); State ex rel Douglas v. Faith Baptist Church, 207 Neb. 802, 301 N.W.2d 571 (1981)(upholding regulations in face of broad challenge) (case on which "Nebraska Seven" controversy is based); State v. Whisner, 47 Ohio St.2d 181, 351 N.E.2d 750 (1976) (striking regs); State ex rel Nagle v. 01son, 64 Ohio St. 2d 341, 415 N.E.Ld 279 (1989) (extending Whisner). Notable, all the courts have recognized that Yoder applies, but they do not agree on its affect. The most recent federal case directly on point goes both ways. See Bangor Baptist Church v. State of Maine, No. 81-0180-B (D.Me. filed December 20, 1983)(judgment, in part, for parents) and Bangor Baptist Church v. State of Maine, 549 F.Supp. 1208 (D. Me. 1982) (partial summary judgement for state). The issues in each of these cases are similar, if not identical, and are aptly illustrated by the Nebraska regulations upheld in State ex rel Douglas v. Faith Baptist Church which appear as Exhibit 3 to this memorandum. The regulations for elementary schools provide, among other things: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. That teachers must be certificated (003.01F, 004.02c) a definition of "teach[ing]" that schools must be "approved", and that approval is contingent upon compliance with the regulations (001.02, 003.03C) that only "approved" schools meet the requirements of the compulsory attendance law (001.01) the content of the curriculum (004.1C3a-h) the number of teachers and their qualifications (004.02A), as well as minimum percentages to be assigned in specialty areas (004.02D) and pupil/teacher ratios (004.02J) that the principal shall be certificated (004.02H), and is subject to certain restrictions the number of in-service training days for teachers that each school maintain records concerning the number of books, by subject category, in its library; and that a "balanced" collection of books must be maintained see 004.03F2 107 that each school purchase a minimum of "25 new library resources, exclusive of textbooks and encyclopedia, of different titles, per teacher per year ..." (004.03F4); 11/ 11. that health and safety standards be maintained. It has been the consistent charge that regulations such as these are unduly burdensome and, therefore, interfere with the Free Exercise rights of both the churches operating the schools and the parents who choose them. It is also notable that state financial assistance designed to assist compliance 9/ No attempt has been made to collect other available federal authorities. 10/ Interestingly, the "recommended" percentage of books pertaining to Religion is 1.0%. The largest categories are "Geography, History, Travel, Biography" - 25.0%; "Fiction and Fairy Tales"-- 20.0%; "Easy Books for Grades 1-3" 25.0%. While this breakdown might certainly make some sense for a public school library, it is not too difficult to see why a religious school might have problems with it. - 11/ The financial burden of this regulation for a small Christian school is Obvious. The state requires the purchase and expenditure of large sums of money, but is constitutionally forbidden to assume any of the cost because the Supreme Court has ruled that the Establishment Clause of the First Amendment forbids it. See e.q., Lemon v. Kurtzman, 403 U.S. 602 (1971) is constitutionally forbidden, even were the schools to desire it. Thus, the church schools must, in order to carry out what they see as their religious mission to educate the children of their members in a religious atmosphere, comply with the same rules which govern public schools. This, in the judgment of the churches, is state interference in one of the central functions and practices of their faith. The issue joins, then, at the intersection of a concedly valid state interest: quality education, and a First Amendment right: Free Exercise. How we resolve these competing interests, and others equally as pressing to religious believers, are matters of federal policy because the Supreme Court has recognized religious freedom as a basic civil right. The adversarial process is not well-suited to illuminate all the issues, but the investigatory and advisory processes of this Commission are uniquely suited to this purpose. Conclusion This memorandum has emphasized the main issues in the controversy which has become known as the "Nebraska situation", but it is important to emphasize that Nebraska is not the only jurisdiction to face the issue. Reports from other states indicate great interest in the outcome in Nebraska, and North Dakota officials were quoted in the last month concerning possible prosecution of a church school in that state. Church institutions other than elementary schools (colleges, hospitals and churches themselves) must also comply with many constitutionally troublesome regulations. Given this situation, it is most unwise for government, state or federal, to permit the appearance of official religious intolerance or insensitivity toward religious freedom when that freedom is a basic civil right. Federal criminal civil rights laws are not easily adapt- able to situations such as these, for they focus primarily on the civil rights problems they were passed to cover: racial intolerance by state officials. Federal civil remedies, e.g., 42 U.S.C. §§ 1983, 1985, appear to be restricted by the immunities of the very officials who are charged with the offense, and the power of the Justice Department to take the sort of direct action available in race cases is not clear. See, e.g., 42 U.S.c. § 2000h-4. The result of all of this can be devastating to churches. In Nebraska, the "Governor's Christian School Issue" Panel delivered a lengthy report dated January 26, 1984 which concluded, among other things, that "some accommodation to the First Amendment freedom of religion claims of the Christian school supporters must be recognized." (Report at 27) In keeping with their report, they made several recommendations to the Nebraska Unicameral. Each time it has voted to date, the exemptions have failed by a closely-divided vote. A similar delay in granting an exemption for the Amish which was granted resulted in the move- ment of entire families to states which recognized their right to practice their religion. See Exhibit 4. There is, therefore, a need for action. We have gone too far in the protection of religious freedom to ignore these problems. The issues should be investigated and, I submit, this Commission should begin the process. ENABLING ACT OF CONGRESS. 1864 ENABLING ACT OF CONGRESS An act to enable the people of Nebraska to form a Constitution and State Government, and for the Admission of such State into the Union on an equal footing with the original States. [Passed April 19, 1864, U. S. Stat. at Large, vol. 13, p. 47.] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the inhabitants of that portion of the territory of Nebraska included in the boundaries hereinafter designated be, and they are hereby, authorized to form for themselves a constitution and state government, with the name aforesaid, which state, when so formed, shall be admitted into the Union as hereinafter provided. Sec. 2. And be it further enacted, That the said state of Nebraska shall consist of all the territory included within the following boundaries, to-wit: Commencing at a point formed by the intersection of the western boundary of the state of Missouri with the fortieth degree of north latitude; extending thence due west along said fortieth degree of north latitude to a point formed by its intersection with the twentyfifth degree of longitude west from Washington; thence north along said twenty-fifth degree of longitude to a point formed by its intersection with the forty-first degree of north latitude; thence west along said forty-first degree of north latitude to a point formed by its intersection with the twenty-seventh degree of longitude west from Washington; thence north along said twenty-seventh degree of west longitude to a point formed by its intersection with the forty-third degree of north latitude; thence east along said forty-third degree of north latitude to the Keya Paha river; thence down the middle of the channel of said river, with its meanderings, to its junction with the Niobrara river; thence down the middle of the channel of said Niobrara river, and following the meanderings thereof, to its junction with the Missouri river; thence down the middle of the channel of the said Missouri river, and following the meanderings thereof, to the place of beginning. Sec. 3. And be it further enacted, That all persons qualified by law to vote for representatives to the general assembly of said territory shall be qualified to be elected; and they are hereby authorized to |