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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
Urie 193 as support for its holding134 further demonstrates the
court's failure to place the free exercise rights of the petitioners in
a "preferred position."135 In that case, a plaintiff who had gradu-
ated from an unaccredited law school in California applied for ad.
mission to the Alaska bar.136 The Alaska court, in upholding the
rejection of plaintiff's application, explained the test employed in
reaching its decision as follows:

Since Alaska's equal protection analysis is more demanding than the fed
eral national basis test, there is a fortiori, no violation of lederal equal
protection guarantees. We need not consider whether the Alaska bar rule
meels the more demanding federal requirement of compelling state in
terest" because that standard is only applicable if the complainant is
member of suspect class or the procedure at issue violates a fundamen-

In relying on the Urie decision to directly support its holding in
Faith Baptist Church, the Nebraska court more clearly revealed
that it was not applying a compelling state interest test but rather
an even-handed balancing test. 130 The test employed in Urie was
an inappropriate one to use in resolving the Faith Baptist Church
issues because Urie did not involve a fundamental right. 130

· 1902)

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
baccalaureate degree for Lacher certifcation is neither wbitrwy nor un-
reasonable additionally, we believe it is also a relable indicator of the
probability of success in that particular held. We believe that it goes with
out saying that the Suale has i compelling interest in the quality and abu-

ity of those who are lo lesch iu young people."
Although this appears to be an accurate statement, its relevance to
the test employed by Sherbert and Yoder is unclear. Both Sherbert
and Yoder require the compelling state interest to be in not al-
lowing an exemption rather than simply in the subject matter of
the regulation. 10 The fact that a regulation is neither "arbitrary
nor unreasonable" is not determinative in a free exercise case. 195

The last statement made by the Nebraska court concerning the
existence of a compelling state interest was as follows: "The re-
fusal of the defendants to comply with the compulsory education
laws of the State of Nebraska as applied in this case is an arbitrary
and unreasonable attempt to thwart the legitimate, reasonable,
and compelling interests of the State in carrying out its educa-
tional obligations, under a claim of religious freedom."14 Again,
the court failed to appreciate that the compelling state interest
must be in denying the exemption to those particular defend-
ants, 145 and that the state's general interest in carrying out its edu-
cational obligations is not enough to sustain its burden.146 Further,
even if the state sustained its burden of prool, it would still have an
obligation to prove that there were no less drastic alternatives
avaữable.147 The Nebraska Supreme Court did not even mention
this consideration in its decision.

parental freedom and authority in things affecting the child's welfare, and
... this includes, to some extent, matters of conscience and religious convic-
tion." Again, religious freedom was placed in an exalted position in relation
to other interesus. Moreover, that Court strictly conined the Prince holding
to the facts before it Id at 171. See aloo Wisconsin v. Yoder, 406 U.S. 205, 228
30 (1972)

Brunfeld v. Brown, 366 U.S. 599,807 (1961), although sustaining the state
regulation, placed the least restrictive alternative burden on the state. Fol-
lowing Braurteld was Sherbert v, Verner, 374 U.S. 398 (190), which was cited
as the authority for the proper test in Wisconsin v. Yoder, 406 U.S. 208 (1972).
McDaniel v. Páty, 13s U.S. 618 (1978), and Thomas v. Review Bd, 450 U.S. 707
(1981). Although the Sherbert Court Arst stated the full test, the Thomas
Court most succincuy stated the test as follows: The state may justily an
Inroad on religious Uberty by showing that it is the least restrictive means of

achieving some compelling state interest 450 U.S. at 714
13. 617 P 24 50s (Alaska 1980).
1 207 Neb. at 316, 301 N.W 2d at 579.
135. Freedom of press, freedom of speech, freedom of religion are in a preferred

position." Murdock v. Pennsylvania, 319 U.S. 108, 115 (1943).
13. 617 P2d at 508
137. Id at 509 n.7 (citations omitted).
134. Since the Urie court did not engage in a compelling state Interest analysis, its

decision could not be applied to a case involying a fundamental right without
Arut making that important distinction the Nebraska court made the dis

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-
stitutional provision), was rejected by the Nebraska court in favor of Urie.
207 Neb, at 816, 301 N.W 2d at 579. In so doing the court failed to recognize an
important dlounction between the two cases. Rudaril Involved fundamen-
ual right, whereas Urie did not The difference in the two opinions could be

directly accounted for by the degree of scrutiny employed in the tests in each
140. 207 Neb, at 816-17, 301 N.W2d at 579-40.
141. Id at 816-17, 301 N.W2d at 573.
142 See notes 20, 50 & accompanying text pra.
14 Wisconsin v. Yoder, 406 U.S. 208, 233 (1972).

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


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97 stances in which a choice is demanded increase to the detriment of both the individuals involved and society in general.18

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The tree exercise test, as synthesized by the United States
Supreme Court, has granted to individuals an absolute right to be
leve as their consciences dictate and a signifcant right to practice
those beliefs without unnecessary governmental interference. In
the area of education, however, this right has been somewhat re-
stricted by unnecessary government regulation. To properly pro
tect the rights of individuals to follow their consciences in religious
matters, adherence to the free exercise test as laid down by the
Supreme Court is in order. The practical result of that test does
not unduly hinder the state from protecting its legitimate interests
in education. That result may be stated as follows: When parents,
because of religious reasons, object to public school education,
they may opt to send their children to a private school.14 I there
is no private school within a reasonable distance which is both
state-approved and not violative of the parents' religious beliefs,
the parents should have the option of providing an "equivalent"
education. In any contested case, the burden is on the state to
show that its educational interests are not being met. Only then
should the state be able to sustain teacher certification require.
ments in the face of a tree exercise challenge.

The recent case of Douglas v. Faith Baptist Church 140 even it
correct in its uremate decision, constitutes a severe blow to reli-
gious freedom in Nebraska and is contrary to the free exercise test
which has evolved through United States Supreme court deci.
sions. The decision Wut unnecessarily prace individuals in a posi.
Ton where they must make a choice between their God and their
government is it will not be "unreasonable" for those individuals
to choose to obey their God and suner punishment at the hands of
the government. 152 The effect of the Supreme Court's compelling
interest rule is to limit those situations as much as is practically
possible. But when state courts fail to follow that rule, the circum-

14. Plerce v. Society of Sisters, 283 U.S. 510 (1925).
140. 207 Neb. 102, 301 N.W 24 571, con denied, 102 S. CL 75 (1901).
150. It the facts failed to establish an infringement or, alternatively, the facts

established an infringement but further established that the education re
celved in the church-operated school was below the level of education necer
rary to insure the continued viability of our society, both poliucally and
economically, and additionally that the state's method of regulating educa-
tion in this area was the least drastic alternative, then the court's ulumate

decision in the case would be correct
151. The evil to be avoided, it possible, is a compelled choice. Sherbert v. Vernet,

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
within society. The efect on individuals increased mental pressure as well
as the loss of Uberty or property in certain situations. Nelcher results







January 26, 1984

The Honorable Robert Kerrey
Governor of Nebraska
State Capitol,
Lincoln, Nebraska 68509

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,


Kobert M
Robert M. Spire


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.

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