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FREEDOM OF RELIGION
decision in 1878. Nowhere in that process has the test in Justice White's concurrence been employed in free exercise cases.
The Nebraska Supreme Court's reliance on Application of
Since Alaska's equal protection analysis is more demanding than the fed
In relying on the Urie decision to directly support its holding in
The court, in the last two paragraphs of its opinion, did attempt .to pay some respect to the compelling interest standard, but with oui much enthusiasm or success. 140 irl, the court stated:
However, we think I cannot fairly be dispuled that the requirement of a
ity of those who are lo lesch iu young people."
The last statement made by the Nebraska court concerning the
parental freedom and authority in things affecting the child's welfare, and
Brunfeld v. Brown, 366 U.S. 599,807 (1961), although sustaining the state
achieving some compelling state interest 450 U.S. at 714
position." Murdock v. Pennsylvania, 319 U.S. 108, 115 (1943).
decision could not be applied to a case involying a fundamental right without
tinction, it was with the raind and not the per 139. The rationale of a cake involving a challenge to teacher certihcation require
ments, Kentucky Suale Bd. of Elementary & Secondary Educ. v. Rudasi, 589
S.W.2d 671 (Ky. 1979), con denied, 48 U.S. 838 (1960) (decided on stale con-
directly accounted for by the degree of scrutiny employed in the tests in each
4 207 Neb, at 817, 301 N.W 2d at 580. 145. See notes 20, S8 & accompanying text wpro. 146. This was precisely one of the issues decided In Wisconsin v. Yoder, 406 U.S.
205 (1972). 147. Sherbert v. Verner, 374 U.S. 396 (1963), Braunfeld v. Brown, 366 U.S. 590
. 1982] FREEDOM OF RELIGION
97 stances in which a choice is demanded increase to the detriment of both the individuals involved and society in general.18
NEBRASKA LAW REVIEW . (Vol. 61:74
The recent case of Douglas v. Faith Baptist Church 140 even it
14. Plerce v. Society of Sisters, 283 U.S. 510 (1925).
established an infringement but further established that the education re
decision in the case would be correct
374 U.S. 396 (1963). 152 See notes 57 & accompanying text supro.
142 The edect on society of increasing the number of coercive choices required is
the encouncement of civ unrest and the Inlaponisra of certain poupe
APPENDIX - B
THE REPORT OF THE GOVERNOR'S CHRISTIAN
SCHOOL ISSUE PANEL
January 26, 1984
The Honorable Robert Kerrey
Dear Governor Kerrey:
On December 12, 1983, you created the Governor's Christian School Issue Panel and charged it to "examine and report on public policy questions surrounding the Christian School issue in Nebraska".
I respectfully submit to you the report of this panel. We commend you for your keen interest in this important issue and thank you for allowing us to participate in the study of it.
We owe much to (a) the many people with whom we spoke and corresponded, (b) the authors of the vast number of reference materials we studied, and (c) your considerate staff members. Although our thanks go to all of these persons our recommendations are our own, for which we take full responsibility.
This issue presents profound and difficult challenges. Nonetheless, we believe that it can be resolved in a responsible manner because of the inherent good sense of Nebraskans and our state's tradition of fairness.
Very truly yours,
RMS : sa enclosure
Nebraska has an obligation to assure that children receive a good education. This means adequate training in basic skills and a knowledge of how our system of government works. The goal is to develop persons who can function constructively as adults and contribute to the welfare of others.
Nebraska carries out its educational responsibilities through laws and regulations which establish that all schools in Nebraska, both public and private, meet certain requirements. Chief among these requirements are those for (a) teacher certification, (b) courses of study, (c) material and equipment, and (a) grades and promotion. In addition, there are requirements regarding (a) compulsory education, (b) health and safety, and (c) fire regulations. Many education leaders consider these requirements essential for the State to fulfill its obligation to assure that Nebraska children are well educated.
There are some Christian schools which object to these State requirements on religious grounds. They assert that their educational efforts are an extension of their church ministry. From this they conclude that since the State cannot control religion it cannot regulate their schools. Thus, the State's desire to enforce its regulations is directly opposed by the church schools' denial of the State's right to do so as to them.
What is needed is an appropriate balance between the legitimate interest of the State in the education of Nebraska youth and religious freedom. Objectivity and balance are essential to a constructive resolution of this issue.
Can this conflict be resolved? Yes, and without a lot of difficulty. If so, how? We suggest this:
1. For church-related private schools Nebraska policy should be modified to create this exemption from present state requirements:
If all parents of children attending a churchrelated private school so elect, testing of their children shall be acceptable as an alternative to curriculum, teacher certification and related requirements for the school. These tests should be of a standardized nature recognized by the State Department of Education and educators as proper indicators of student progress. They should be administered annually by the County Superintendents. If the average test scores in each content area and at each grade level of all students enrolled in a school are at least equal to such average test scores of students in Nebraska
public schools (or, if scores are not available for Nebraska public school students, then the nation as a whole), the school attended by these students need not meet the State curriculum, teacher certification and related requirements.
2. Parents who elect this alternative shall make a written representation to the State that (a) their religious beliefs dictate this choice, (b) they consent to a testing . procedure for their children, and (c) they will supply regularly to the State evidence that their children are (1) meeting State mandatory school attendance requirements and (2) receiving a structured program of education which satisfactorily covers all basic areas of study included in State curriculum standards and is conducted with physical facilities and instructional equipment and materials comparable to state standards. If the parents (a) fail to comply with these procedures, (or their representations to the State are inaccurate), or (b) their children test below the prescribed averages, then their children will be considered to be in violation of State mandatory school attendance requirements.
3. Health, safety and fire regulations for churchrelated private schools shall remain as they are.
4. The result of this exemption is this: Churchrelated private schools, for reasons of the religious conscience of the parents of the children attending them, may operate without seeking a license or obtaining approval from the State. The parents of the students involved shall (a) submit their children to a testing procedure, and (b) report directly to the State compliance with mandatory attendance, basic curriculum and related requirements.
This would seem to be a just and reasonable recognition of (a) religious and parental rights, and (b) the freedom of Christian schools to exist. At the same time, it leaves intact the basis for health and safety standards, fire regulations and compulsory education. The election to seek this exemption can only be made for reasons relating to religious freedom.
We make these recommendations because we have concluded:
. (a) Nebraska teacher certification procedures as presently defined violate the First Amendment free exercise of religion rights of Christian schools. This legal conclusion, together with our view of proper public policy, indicates to us the need to modify present practices in order to reach an appropriate accommodation between the interest of the State and religious freedom rights.