The first tier of the free exercise test requires that those chal- lenging the state regulation show that there was a governmental infringement of their religion. Infringement occurs when one is forced to choose between the demands of his religion and the de- mands of his government.45 Past compliance with a regulation, al- though a factor to be considered, should not necessarily induce a court to find a lack of infringement in later noncompliance. The evils of continuing to require a choice from an individual are the samé whether the person chose to violate the state regulation to comply with the demands of his religion or whether that person chose to violate the demands of his religion to comply with the state regulation. A consistent practice of resisting state regulation, although bolstering the challenger's argument, is not and should not be a sine qua non for an infringement.47
On the other hand, a consistent practice of resisting state regu- lation is not, per se, a showing of infringement. The issue which a court must determine is whether there is a sincerely held religious belief, which conflicts with the demands prescribed in the regula-
44. See note 19 & accompanying text supra. The infringement requirement has trequently been interpreted to require coercion. Board of Educ. v. Allen, 392 U.S. 236 (1968), Abington School Dist. v. Schempp, 374 U.S. 203 (1963). Coer- cion will be present in the violation of a teacher certification requirement if the violation leads to the deprivation of an individual's right to life, liberty, or property. In any case where the possible consequence of disobeying the reg ulation is a fine, imprisonment, or the removal of children from the home, coercion is present.
45. Sherbert v. Verner, 374 U.S. 398 (1963). The Sherbert Court stated: "The rul ing forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental impo sition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship" Id. at 404. Accord, Thomas v. Review Bd, 450 U.S. 707 (1981).
46. Past compliance may help to show a lack of infringement, however, it may also show the strength of the coercive effect of the law. That is, a person may have chosen to violate religious principles rather than face punishment under the law.
47. To so require would judicially encourage persons to break the law in order to protect their constitutional rights.
48 People may resist the state's educational regulations for reasons other than those which would lead to a constitutionally protected infringement. Wiscon sin v. Yoder, 406 U.S. 205, 215-16 (1972), Brown v. Dade Christian Schools, Ine 556 F.2d 310 (5th Cir. 1977), cert. denied, 434 U.S. 1063 (1978), Hanson v. Cushman, 490 F. Supp. 109 (W.D. Mich. 1980), in re Franz, 55 A.D.2d 424, 300 N.Y.S.2d 940 (1977), In re McMillan, 30 N.C. App. 235, 226 S.E.2d 693 (1976). "Only beliefs rooted in religion are protected by the Free Exercise Clause," Thomas v. Review Bd, 450 U.S. 707, 713 (1981). The test for determining what beliefs should be protected was set forth in United States v. Ballard, 322 U.S.
A more difficult problem is presented where there is no infringement of the parent's religious beliefs, but there is a conflict between the teacher's religious beliefs and the certification requirements. If there is an infringement of the teacher's free exercise of religion, potentially creating the right to teach without certification, there would necessarily have to be a right accorded to
78 (1944), and referred to by the Yoder Court. 406 U.S. 205, 215 n.6 (1972). The Ballard Court held that although the truth of the individual's belief could not be questioned, its sincerity could, and, if the belief was sincerely held, it was protected.
50. For an example of the application of the test under a challenge to a compul sory education law, see Wisconsin v. Yoder, 406 U.S. 205, 215-19 (1972). 51. The courts which have addressed teacher certification requirements have generally considered the parent's tree exercise interest, because they were the ones in violation of the laws by not sending their children to be taught at schools employing certified teachers. Kentucky State Bd. of Elementary & Secondary Educ. v. Rudasil, 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. Shaver, 294 N.W.2d 883 (N.D. 1980). In any particular case, the court should consider the interest of the one before it. However, if the state proceeds against the school generally, then perhaps el- ther or both the interests of parent and teacher would be involved.
$2 The role of the parent in the education of the child is firmly entrenched within our society. The Yoder Court stated: "This primary role of the par ents in the upbringing of their children is now established beyond debate as an enduring American tradition." 406 U.S. 205, 232 (1972). Thus the right of a parent to direct his children's education should not be contingent on a partic ular form of government approval, e.g., a teaching certificate. This may be analogized to Stevens v. Berger, 428 F. Supp. 96 (E.D.N.Y. 1977) where the court struck down a law which conditioned the receipt of welfare benefits upon the applicant's obtaining a social security number. The plaintiffs ob- jected to obtaining the numbers because of religious reasons.
53. Coercion will be present in this choice if any sanctions are available for the state to use against the parent.
54. To satisfy the intringement requirement, a coercive choice is all that is required. If the result of the requirement would put a noncertified teacher out of a job, the inbringement test should be satisfied.
[Vol. 61:74 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
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
(Vol. 61:74 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).
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
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.
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
(Vol. 61:74 tional interests. Consequently, as long as children are receiving an education equivalent to that received in approved schools, the state lacks a compelling interest in requiring teacher certification.
C. Availability of Less Restrictive Alternatives
The third tier of the free exercise test would be reached only after the state has shown that a noncertified teacher failed to dis- pense to the students that which would satisfy the state's compel- ling educational interest. The state must then show that there are no less restrictive alternatives available than the teacher certi- fication requirement to protect its compelling interest in educa- tion. The state probably would be able to sustain its burden of proof in this area, as long as unnecessary requirements for ob- taining a certificate were not imposed.
Consequently, teacher certification requirements under a free exercise of religion challenge should be sustained only when ei- ther (1) no legitimate infringement exists or (2) an infringe- ment exists, but the state has shown that its compelling educational interests are not being met by the instruction given by the noncertified teacher and there are no unnecessary require- ments to obtaining a certificate. In all other situations, the free- dom of conscience in religious matters should be protected.
88. Teacher certification laws should only be valid as they relate to the state's interest in education. See note 59 supra.
89. See note 21 & accompanying text supra.
90. The state could argue that it can only protect its compelling interest in educa- tion by preventing a specific teacher from teaching and that the method of requiring certification is no more restrictive on the teacher's or parent's right than any other method by which the state could obtain its interest. Braun- feld v. Brown, 366 U.S. 599 (1961).
91. The imposition of unnecessary requirements by definition removes the teacher certification requirement from the least restrictive alternative ..sphere. That removal is fatal for the constitutional survival of the certifica- tion requirement under a tree exercise challenge. However, it is unclear whether an alternative requirement, such as a standardized test or a degree from an approved school, would meet the least restrictive alternative test in court. See note 84 supra.
92. See notes 44-56 & accompanying text supra. 93. See notes 57-91 & accompanying text supra. 94. See notes 1-16 & accompanying text supra.
In resolving the defendants' free exercise challenge to the Ne- braska education regulations, the Nebraska Supreme Court appar- ently chose to follow the rationale of one of its previous decisions rather than the United States Supreme Court decisions in the area. The court upheld the closing of the Faith Baptist Church's school simply because that school had failed to comply with the state's regulatory scheme. There was no evidence that the school was failing to provide a quality education. This was not a case in which the state's interest in education conflicted with the parents' free exercise interest in "non-education," but rather one in which the state's interest in regulating education conflicted with the par- ents' religious beliefs. By affirming, the court in effect allowed the state's interest in regulation to override the parents' fundamental free exercise interest100 in directing the education of their children.
The court began its first amendment analysis by examining Meyerkorth v. State, 101 a decision it had rendered in 1962 upon a similar set of facts. In that case, the parents sought to enjoin the county attorney from bringing suit to close their unapproved school,102 Relying on Meyer v. Nebraska 103 and Pierce v. Society of Sisters,104 the court held that the state could reasonably regulate education and that the regulations in question were not unreason- able, therefore, it denied injunctive relief.105 Meyer and Pierce, al- though not compelling the ultimate result in Meyerkorth, did not explicitly forbid it.108 Thus at the time it was decided, Meyerkorth may have been legally supportable.
Since the Meyerkorth decision, however, the United States
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