A. Infringement

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the parents to have their children educated by a noncertified
teacher. Otherwise the teacher would have no pupils to teach
upon exercising his free exercise right. This situation could arise
where the teacher has a direct religious reason for not obtaining
certification, or where the teacher, because of a religious prefer-
ence, chooses to attend a nonapproved higher educational institu-
tion and then after graduation, seeks to teach without meeting the
certification requirements. In the latter situation, an indirect reli-
gious preference rather than a direct religious obstacle would force
the individual to make a choice.55

Another type of indirect conflict is presented where a parent
who does not object to state certification requirements neverthe-
less places his children with a teacher lacking certification simply
because no teacher possessing a certificate and satisfying the par-
ent's personal religious beliefs was available. In this situation, al-
though the conflict with the state certification requirement is
indirect, it should be sufficient to give rise to an infringement.56

B. Compelling State Interest

When attempting to determine the constitutionality of a state
education regulation which is challenged by an individual on free
exercise grounds, the finding of an infringement only begins the
analytical process. The burden of proof then shifts to the state to
show a compelling state interest in sustaining the regulation as ap-
plied to the particular individual.57 Accordingly, in a challenge to
teacher certification requirements, the state must present a com-
pelling reason for not allowing an exemption from the require-
ments of the regulation for this particular individual. Since the

55. Whether an intringement would be found in this situation would depend
upon the particular facts involved. If the teacher had only to apply to be cer
tined, generally no intringement could be shown. On the other hand, if grad-
uation from an approved college were required to obtain certification,
infringement might be shown in the prospective teacher's forced choice of
attending an approved college in order to be certified or forgoing his opportu-
nity to teach and attending the college which he, for religious reasons, wishes

58. The state's burden is always one of showing an interest in not allowing an

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83

state's interest in compelling teacher certification stems founda-
tionally from and is limited analytically by the state's interest in
compulsory education, an examination of the state's interest in
compelling education is necessary.60

Under both our democratic political system and our free enter-
prise economic system, education is imperative in order to achieve
the effective and intelligent participation of individuals necessary
to propel the systems.61 Accordingly, the state generally would

exemption. Thomas v. Review Bd., 450 U.S. 707 (1981), Wisconsin v. Yoder,
406 U.S. 205 (1972), Sherbert v. Verner, 374 U.S. 398 (1963), Braunfeld v.
Brown, 366 U.S. 599 (1961). Protecting the establishment clause principle by
not granting exemptions to general nondiscriminatory legislation is not a
compelling state interest. Thomas v. Review Bd., 450 U.S. 707 (1981), McDan-
iel v. Paty, 435 U.S. 618 (1978), Sherbert v. Verner, 374 U.S. 398 (1963). Nor is
the state's interest in the overall subject matter under consideration a com-
pelling state interest. If that were true, the Sherbert, Yoder, and Thomas
cases would have been decided differently since in each case the state had a
compelling interest in the general subject matter.

59. Except for government standards relating to the health and safety of chil-
dren, most government regulations of private schools stem from the state's
Interest in compelling education. Thus the state must have a compelling in-
terest in the underlying education to justify a particular requirement, such as
teacher certification. The state would probably lack the requisite level of in-
terest to require certification of teachers who instruct in subjects not associ
ated with the state's genuine educational interest. For example, the state
does not and probably could not require all Sunday school teachers, pastors,
priests, nuns, or other religious instructors to obtain a license from the state
before being permitted to teach. Since the state does not have a compelling
interest in religious education, it does not have a compelling Interest in certi-
fying teachers to teach religious matters. Moreover, the state, hopefully,
could not require that all parents receive licenses to teach before permitting
them to teach their children. This is because the state's interest in the regu-
lation of education within the family is not sufficient to justify such a
regulation.
80. For a general history of compulsory educational requirements, see Rothbard,
Historical Origins, in THE TWELVE-YEAR SENTENCE 11 (W. Rickenbacker ed.
1974). Court cases since Yoder involving challenges to compulsory education
include: Hanson v. Cushman, 490 F. Supp. 109 (W.D. Mich. 1980), Scoma v.
Chicago Bd. of Educ., 391 F. Supp. 452 (N.D. Ill. 1974), Hill v. State, 381 So. 2d
91 (Ala. Crim. App. 1979), People v. Serna, 71 Cal. App. 3d 229, 139 Cal Rptr.
426 (1977), Kentucky State Bd. for Elementary & Secondary Educ. v. Rudasill,
589 S.W.2d 877 (Ky. 1979), cert. denied, 446 U.S. 938 (1980), Douglas v. Faith
Baptist Church, 207 Neb. 802, 301 N.W.2d 571, cert. denied, 102 S. CL 75 (1981),
In re Franz, 55 A.D.2d 424, 390 N.Y.S.2d 940 (1977), In re R, 79 Misc. 2d 339, 357
N.Y.S.2d 1001 (Fam. Ct. 1974), In re McMillan, 30 N.C. App. 235, 226 S.E.2d 693
(1976), State v. Shaver, 294 N.W.2d 883 (N.D. 1980), State v. Whisner, 47 Ohio
St. 2d 181, 351 N.E.2d 750 (1976), State v. LaBarge, 134 VL 276, 357 A.2d 121
(1976), State v. Kasuboski, 87 Wis. 2d 407, 275 N.W2d 101 (1978).

61. Decision-making, necessary in a tree society, may only be properly made
when adequate knowledge of the available facts is obtained. A lack of knowl
edge translates directly into bad decisions and consistent bad decisions lead
to one's demise, whether politically or economically. Consequently, unlike a

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have a compelling interest in preparing its "citizens to participate
effectively and intelligently in our open political system" and in
preparing "individuals to be self-reliant and self-sufficient partici-
pants in society." The Supreme Court, in recognizing this inter-
est, has correctly stated: "[T]here is no doubt as to the power of a
State, having a high responsibility for education of its citizens, to
impose reasonable regulations for the control and duration of ba
sic education." The state has a high "duty to protect children
from ignorance."s

The state's interest, however, applies only to "basic" educa-
tions and does not include such things as social interaction67 or
educational equality. Moreover, the state's interest does not ex-
tend into areas of education which are religious in character."
Rather the state's compelling interest in education extends only to
those areas necessary to adequately assure effective participation
in society,70

What is necessary to assure an individual's effective participa

society in which one simply does as told, in our society, education for all is of
imperative importance. The Yoder Court, accordingly, stated that the state
has "a high responsibility," "a paramount responsibility," and "a strong inter
est" in the area of education. 405 U.S. at 213, 236.

62 Wisconsin v. Yoder, 406 U.S. 205, 221 (1972).

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FREEDOM OF RELIGION

85

tion in society may vary according to the type of society in which
the individual lives." Thus when the state argues a compelling
state interest in a general compulsory educational scheme, it must
demonstrate a compelling state interest in not allowing an exemp-
tion to that scheme for those who live by guidelines different than
the majority of society. Typically, the state's interest in the over-
all scheme will be identical to its interest in having the scheme
applied to a particular individual.73

It is important to note that the state's compelling interest is in
education, not in the regulation of education.74 Regulations are the
methods by which the state achieves its compelling state interest.
It is possible for the state's compelling interest in education to be
fulfilled without compliance with the state's regulations governing
education.75

To effectively protect their legitimate interests in basic educa

71. As the Yoder Court noted: "It is one thing to say that compulsory education
for a year or two beyond the eighth grade may be necessary when its goal is
the preparation of the child for life in modern society as the majority live, but
it is quite another if the goal of education be viewed as the preparation of the
child for life in the separated agrarian community that is the keystone of the
Amish faith." Wisconsin v. Yoder, 406 U.S. 205, 222 (1972).

72. The compelling state interest must be in not allowing an exemption. See
notes 20 & 58 supra.
73. The state's interest in an overall educated society is to insure effective partic
ipation in our economic and political systems. The state's interest in the edu-
cation of each individual is to insure his or her effective participation in our
economic and political systems. These interests, therefore, often merge.
Nevertheless, where the individual can show that his circumstances are dif-
ferent enough that the two interests do not merge, as the Amish did in Yoder,
it becomes "incumbent on the State to show with more particularity how its
admittedly strong interest in compulsory education would be adversely af
fected by granting an exemption." Wisconsin v. Yoder, 406 U.S. 205, 236
(1972).
74 The distinction between the state's interest and the regulation of that inter
est often is not made by the courts. See Douglas v. Faith Baptist Church, 207
Neb. 802, 301 N.W2d 571, cert denied, 102 S. CL 75 (1981), State v. Shaver, 294
N.W.2d 883 (N.D. 1980). When the state's interest in regulating education con-
flicts with the tree exercise of an individual's religion, the state's interest only
extends to a regulation which both serves the state's compelling interest and
interferes the least with the individual's religion. Thomas v. Review Bd., 450
U.S. 707 (1981), Wisconsin v. Yoder, 406 U.S. 205 (1972), Sherbert v. Verner,
374 U.S. 398 (1963), Braunfeld v. Brown, 366 U.S. 599 (1961).

75. Legally, the least drastic alternative aspect of the free exercise test is based
upon the assumption that the state's interest may be met under methods
other than the regulations under consideration. At least three state courts
have expressly found that the education being provided under systems which
did not comply with state regulations was equal or superior to the education
provided in "approved" systems. State v. Massa, 95 N.J. Super. 382, 231 A.2d
252 (Morris County Ct. 1967), State v. Shaver, 294 N.W2d 883 (N.D. 1980),
State v. LaBarge, 134 VL 276, 357 A.2d 121 (1976). Thus if the approved sys-
tems met the compelling interest of the state in education, the assumption

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1982]

tion, the states have employed a multiplicity of regulations," in-
cluding the requirement that persons who dispense state-
mandated education be certified by the state. Such regulations,
however, may prove to be unenforceable when challenged by an
individual who has demonstrated an infringement of his religion.70
Because of the relationship between teacher certification require-
ments and compulsory education,80 the state may only justify de-
nying an exemption from the certification requirements if such a
refusal would promote the legitimate educational interests of the
state. Noneducational interests, such as administrative incon-
venience are inadequate to justify denying an exemption.2.

Therefore, the essence of the entire free exercise evaluation is
that the state must relate each denial of an exemption from state
certification requirements to the educational interests affected di-
rectly by the noncertified teacher. If the state is able to show
that the noncertified teacher is unable to or for another reason will

would be that the systems which did not comply with state regulations also
met the compelling interest of the state in educating its citizens.

76. See notes 61-73 & accompanying text supra.

77. For an example, see State v. Whisner, 47 Ohio St. 2d 181, 351 N.E.2d 750 (1976).
78. Four recent cases which addressed the teacher certification issue are Ken-
tucky State Bd. of Elementary & Secondary Educ. v. Rudasill, 589 S.W.2d 877
(Ky. 1979), cert. denied, 446 U.S. 938 (1980), Douglas v. Faith Baptist Church,
207 Neb. 802, 301 N.W.2d 571, cert. denied, 102 S. CL 75 (1981), State v. Massa,
95 NJ. Super. 382, 231 A.2d 252 (Morris County CL. 1967), State v. Shaver, 294
N.W2d 883 (N.D. 1980).

79. This stems from the fact that the state has the burden of proof in this area.
Sherbert v. Verner, 374 U.S. 298 (1963). For an argument in favor of inferring
unenforceability, see Clark, supra note 18, at 345.

80. See note 59 & accompanying text supra.

41. See notes 59-73 & accompanying text supra.
82 Administrative inconvenience has long been deemed an impermissible justi
fication for invading one's tree exercise rights. The regulations in Wisconsin
v. Yoder, 406 U.S. 205 (1972), Sherbert v. Verner, 374 U.S. 398 (1963), and
Cantwell v. Connecticut, 310 U.S. 296 (1940) were each struck down even
though the exemptions required would cause some administrative problems.
Only if the inconvenience were so great as to render the entire educational
scheme unworkable would it be a sufficient justification. The Sherbert Court,
considering the decision in Braunfeld v. Brown, 366 U.S. 599 (1961), in relation
to its own set of facts, stated:

Requiring exemptions for Sabbatarians, while theoretically possible,
appeared to present an administrative problem of such magnitude, or
to afford the exempted class so great a competitive advantage, that
such a requirement would have rendered the entire statutory scheme
unworkable. In the present case no such justifications underlie the
ineligible to receive benefits.
determination of the state court that appellant's religion makes her

omitted). Sherbert v. Verner, 374 U.S. 388, 408-09 (1963) (emphasis added) (footnotes

The state may claim that granting exemptions might lead indirectly to the decline in the quality of education by the proliferation of spurious claims.

FREEDOM OF RELIGION

87

not dispense the education necessary to meet the state's compel-
ling interest, the state should have sufficient justification for deny.
ing an exemption. That is, if the state demonstrates that a
teacher did not understand the subjects being taught sufficiently
to be able to teach others or could not communicate the subjects
effectively to his students, the state would sustain its burden of
proof as to that teacher. However, the state cannot sustain its
burden of proof simply by showing that the teacher was not certi-
Aled, the state must show a direct adverse effect on its educa-

However, a similar argument was rejected in Sherbert v. Verner, 374 U.S. 398,
407 (1963), in the context of unemployment compensation benefits.

84. An argument may be presented that teacher certification laws are invalid per
se when subjected to a tree exercise analysis and an infringement is shown
to exist. Essentially, the argument is that although the state has a compelling
interest in education, teacher certification laws simply are not the least dras-
tic alternative means of achieving that compelling interest. If this analysis is
dak followed, a careful scrutiny of the teaching ability of the teacher involved
would be unnecessary. If this analysis is rejected, a careful scrutiny is
mandatory. See State v. Shaver, 294 N.W.2d 883 (N.D. 1980) in which the court
apparently viewed teacher certification laws as less drastic than standardized
tests. But see Kentucky State Bd. of Elementary & Secondary Educ. v.
Rudasill, 589 S.W.2d 877 (Ky. 1979), cert. denied, 446 U.S. 938 (1980) in which
the court viewed standardized tests as less drastic than teacher certification
requirements under a state constitutional provision.

Chief Justice Krivosha of the Nebraska Supreme Court wrote in dissent-
ing in Douglas v. Faith Baptist Church:

I find nothing either in our statutes or in logic which compels a con-
clusion that one may not teach in a private school without a bacca-
laureate degree if the children are to be properly educated. Under
our holding today, Eric Hoffer could not teach philosophy in a grade
school, public er private, and Thomas Edison could not teach the the-
ories of electricity. While neither of them could teach in the primary
or secondary grades, both of them could teach in college. I have
some difficulty with a law which results in requiring that those who
teach must have a baccalaureate degree, but those who teach those
who teach need not. The logic of it escapes me. The experience of
time has failed to establish that requiring all teachers to earn a bac
calaureate degree from anywhere results in providing children with a
better education.

207 Neb. 802, 823-24, 301 N.W.2d 571, 582-83 (1981) (Krivosha, C.J., dissenting).
However, it is unclear whether the Chief Justice simply objected to the bac
calaureate requirement or whether he objected to the requirement of a
certificate.
85. The burden upon the state is to show a compelling interest in not allowing an
exemption. See notes 20, 58 & accompanying text supra. In this case the state
would have a compelling interest in not allowing the exemption because al-
lowing the exemption would in effect deny the state its constitutional right to
achieve its compelling interest in education. See Wisconsin v. Yoder, 406 U.S.
205 (1972), Sherbert v. Verner, 374 U.S. 398 (1963), Braunfeld v. Brown, 366
U.S. 599 (1961).
36. Failure to meet state regulatory requirements does not translate directly into
failure to meet the state's compelling interest in the underlying subject. If
the state's compelling interest in the underlying subject is met, the state has