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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) Tstriking regs, relying on stricter conscience provisions of Kentucky Constitution); Sheridan Road Baptist Church v. State of Michigan, Dept. of Education, No. 80-26205- 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.20 571 (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 re Nagle v. Olson, 64 Ohio St. 20 341, 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 federat case directly on point goes both ways.97 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:

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 compul-
sory attendance law (001.01)
the content of the curriculum (004.103a-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 (004.023)
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" collec-
tion of books must be maintained see 004.03F2107
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); 117
that health and safety standards be maintained.

11.

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

97 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 sma 11 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..., Lemon v. Kurtzman, 403 V.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 prpocess 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 situations, 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. , 42 V.S.C. § 2000h-4.

The result of all of this can be devastating to churches. In Nebraska, the "Gover- nor'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.

APPENDIX - E

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, author. ized 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

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ENABLING ACT OF CONGRESS

vote for and choose representatives to form a convention, under such rules and regulations as the Governor of said territory may prescribe, and also to vote upon the acceptance or rejection of such constitution as may be formed by said convention, under such rules and regulations as said convention may prescribe; and if any of said citizens are enlisted in the army of the United States, and are still within said territory, they shall be permitted to vote at their place of rendezvous; and if any are absent from said territory, by reason of their enlistment in the army of the United States, they shall be permitted to vote at their place of service, under the rules and regulations in each case to be prescribed as aforesaid; and the aforesaid representatives to form the aforesaid convention shall be apportioned among the several counties in said territory in proportion to the population as near as may be, and said apportionment shall be made for said territory by the governor, United States district attorney, and chief justice thereof, or any two of them. And the governor of said territory shall, by proclamation, on or before the first Monday of May next, order an election of the representatives aforesaid to be held on the first Monday in June thereafter throughout the territory; and such election shall be conducted in the same manner as is prescribed by the laws of said territory regulating elections therein for members of the house of representatives; and the number of members to said convention shall be the same as now constitute both branches of the leg. islature of the aforesaid territory.

Sec. 4. And be it further enacted, That the members of the convention thus elected shall meet at the capital of said territory on the first Monday in July next, and after organization shall declare, on behalf of the people of said territory, that they adopt the constitution of the United States; whereupon the said convention shall be, and it is hereby, authorized to form a constitution and state government: Provided. That the constitution when formed shall be republican, and not repugnant to the constitution of the United States and the principles of the Declaration of Independence; And provided further, That said constitution shall provide, by an article forever irrevocable, without the consent of the congress of the United States:

First. That slavery or involuntary servitude shall be forever prohibited in said state.

Second. That perfect toleration of religious sentiment shall be secured, and no inhabitant of said state shall aria

ENABLING ACT OF CONGRESS

Third. That the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States, and that the lands belonging to citizens of the United States residing without the said state shall never be taxed higher than the land belonging to residents thereof; and that no taxes shall be imposed by said state on lands or property therein belonging to or which may hereafter be purchased by the United States.

Sec. 5. And be it further enacted, That in case a constitution and state government shall be formed for the people of said territory of Nebraska, in compliance with the provisions of this act, that said convention forming the same shall provide by ordinance for submitting said constitution to the people of said state for their ratification or rejection at an election to be held on the second Tuesday in October, one thousand eight hundred and sixty-four, at such places and under such regulations as may be prescribed therein, at which election the qualified voters, as hereinbefore provided, shall vote directly for or against the proposed constitution, and the returns of said election shall be made to the acting governor of the territory, who, together with the United States district attorney and chief justice of the said territory, or any two of them, shall canvass the same, and if a majority of the legal votes shall be cast for said constitution in said pro

posed state, the said acting governor shall certify the same to the · president of the United States, together with a copy of the said con

stitution and ordinances; whereupon it shall be the duty of the President of the United States to issue his proclamation declaring the state admitted into the Union on an equal footing with the original states, without any further action whatever on the part of congress.

Sec. 6. And be it further enacted, That until the next general census shall be taken said state of Nebraska shall be entitled to one representative in the House of Representatives of the United States, which representative, together with the governor and state and other officers provided for in said constitution, may be elected on the same day a vote is taken for or against the proposed constitution, and state government.

Sec. 7. And be it further enacted, That sections number sixteen and thirty-six in every township, and when such sections have been sold or otherwise disposed of. by any act of congress, other lands equivalent thereto, in legal sub-divisions of not less than one quarter. section, and as contiguous as may be, shall be, and are hereby, granted to said state for the support of common schools.

3.7

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