(g) Nebraska citizens generally; we made a point of visiting about this issue with almost everyone with whom we came in contact personally. 2. Visits to Christian schools. 3. A series of lengthy panel meetings plus much communication among ourselves by telephone, letter and personal conferences. 4. A great deal of time in personal study and reflection. We all were waking up in the middle of the night thinking about this. APPENDIX D PANEL REFERENCE SOURCES The panel studied and discussed a great many materials dealing with (a) the history of the Christian school issue in Nebraska and the country; (b) State laws, regulations and procedures governing education in Nebraska and elsewhere; (c) the basic concepts involved in defining appropriate church-state relationships with regard to matters of an educational and religious nature. Many of these materials were supplied to us by the State of Nebraska Policy Research Office, the State Department of Education, supporters of Christian schools, representatives of the Nebraska Christian Home School Association and members of the Legislature. In addition, the panel itself collected and reviewed a variety of references, including: a. News articles, editorials and book reviews from many newspapers (especially the New York Times; the Christian Science Monitor; the Wall Street Journal; the Washington Post; the Omaha Star; the Omaha World-Herald; the Lincoln Star; and the Lincoln Journal). b. Critiques from magazines and professional journals (including the Nebraska Law Review; The Nebraska Humanist, published by the Nebraska Committee for the Humanities; the Black Scholar; Social Work, the Journal of the National Association of Social Workers; and the Harvard Educational Review). C. Books (Human Values in a Secular World, Robert Apostol, editor; The New King James New Testament, Special Crusade Edition printed for the Billy Graham Evangelistic Association, Thomas Nelson Inc., Publishers; The Troubled Crusade: American Education, 1945 - 1980, Diane Ravitz, author; Beyond the Ivory Tower, Derek Bok, author; and many others). d. Federal and state court decisions. e. Written analyses prepared by panel members themselves for study by and comment from other panel members. Although we obviously could not read everything on the subject, we tried to do our homework. We sometimes felt as if we had joined a Book-of-the-Day club. This week it appears as though another effort will be made in the Nebraska Legislature to exempt religious schools from certain state regulations. I thought you might be interested in the position NCLU has taken on the issue. NCLU has attempted to limit its concern with this issue to the constitutional questions involved. We evaluate the constitutional question as follows: 1) Is there a sincerely held religious belief at issue? To be sure, there is. The parents of the children going to these schools believe that the education of their children is an extension of their religion. They can no more accept state regulation of their church school ministers (i.e. teachers) than they could accept state regulation of their church ministers. We don't believe the sincerity of their belief can be questioned. 2) Is there a compelling state interest in the education of its citizens? In our view the answer to this question is yes. The state cannot guarantee an adequate education, but it at least has an oversight role to some degree. 3) Is there a means available to the state, to satisfy its interest, that is less intrusive into the religious freedom of the church goers than teacher certification? In our view again the answer is yes. As you know, the Spire Commission has suggested the state satisfy its interest through a program of testing the religious school students and evaluating their performance in relation to students in other school systems. Whether or not testing the students protects the state interest as well as teacher certification is alleged to do, is difficult if not impossible to answer conclusively. A conclusive answer to that question, given the conflicting points of view on it, is not really the challenge before you at this time. The challenge before you concerns tolerance of another person's religious ideas. It is indeed tragic that an Amish settlement had to leave Nebraska because the state could not accomodate the life style of those people. Will the state also force others to leave because it is so tied to a particular set of regulations? That is the question facing you. I suggest to you that this issue is not dissimilar, in a broad sense at least, to the issue of religious freedom that prompted many to come to this country over 200 years ago. They came hoping to be free to practice their religion. I hope the Nebraska Legislature will inject some tolerance into this current situation. Best regards, Dick Kurtenbach DATE: FROM: RE: 1. February 29, 1984 Commissioner Robert A. Destro Abutd. Wester State Regulation of Religious Schools: The Case of the "Nebraska Interest of the Commission The jurisdiction of the Civil Rights Commission to study the myriad civil rights issues which arise when government seeks to regulate religious practices rests upon its statutory mandate to: (1) study and collect information concerning legal developments constituting discrimination or a denial or equal protection of the laws under the constitution because of ... religion..., or in the administration of justice"; (2) "appraise federal laws and policies with respect to discrimination or denial of equal protection of the laws because of ... religion ... or in the administration of justice"; (3) serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the laws because of ... religion, ..."; and (4) "submit reports findings and recommendations to the President and the Congress" respecting remedial action. The title of this memorandum, "State Regulation of Religious Schools: The Case of the "Nebraska Seven" and the Religious Freedom Implications of the Pervasive Government Regulation", was chosen to emphasize that the case of the "Nebraska Seven" presents issues related to, but distinct from, the Free Exercise issues raised when government undertakes to regulate religious schools. The "Nebraska Seven" case involves issues reaching the heart of the Commission's "administration of justice" concern for the ability of individuals to obtain prompt and fair redress for constitutional claims through the state and federal systems of justice. The broader issue of government regulation of church schools and other burdens on institutional religious activity raises First Amendment/Free Exercise questions which were not discussed in the Commission's first and only formal report to date on religious freedom questions, Religion in the Constitution: A Delicate Balance [September 1983, C.P. #80.7 In the pages which follow I will attempt to set out in summary form the manner in which each of these statutory mandates has been affected by devel 1/ The Commission also sponsored a consultation in 1979, Religious Discrimination: A Neglected Issue, which focused on employment and administration of justice issues. The only report which focused on religious schools directly did so in a context in which the focus was racial discrimination rather than religious freedom, Discriminatory Religious Schools and Tax Exempt Status [December, 1982, C.P. #75]. No question of racial discriminationn is involved in the issues discussed in this memorandum. opments in Nebraska and elsewhere. Nebraska is not the first state--and it certainly will not be the last--where federal civil rights to religious freedom are set up as a defense to pervasive state regulation of church activities. Its unfortunate experience has sensitized many to the existence of a difficult problem. The case of the "Nebraska Seven" is doubly unfortunate: when seven fathers are held in jail for 92 days without bail, or advice of counsel before their initial incarceration by a state judge, and armed deputies stand guard outside a padlocked Christian church and school, something has gone seriously wrong. There is a need for greater sensitivity at the state and federal levels about religious freedom issues. "The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). The impact of pervasive regulation on the ability of church schools to carry out their constitutionally protected mission is merely one of them. Speaking for the Supreme Court in Yoder, Chief Justice Burger recognized that the religious freedom of parents to educate their children does not leave much latitude for the heavy, though well-intentioned, hand of the state: - II. "Indeed, it seems clear that if the State is empowered, Recommendation: That the Commission schedule a consultation which will focus on two distinct, but related problems: First, the role the federal government can and should play, in the protection of religious institutions, including church schools, from arbitrary or burdensome regulations imposed by state or federal authorities, in light of the standards set down by the Supreme Court in cases defining the scope of the Free Exercise Clause of the First Amendment; and Second, the Nebraska Seven case itself and the role, if any, that the federal government can and should play in assuring that state authorities comply with both the letter and the spirit of the Constitution and laws of the United States in cases where religious liberty is at stake. Because the Nebraska Seven case raises questions concerning the denial of equal protection on the basis of religion, as well as the failure of those who administered justice to respect the commands of the federal constitution, a close look at gaps in federal statutory civil rights enforcement authority is also in order. The broader issue of the extent to which it is permissible under the federal constitution for the states to regulate religious institutions in a manner which may hamper their religious mission fits well into the Commission's mandate to be "a national clearinghouse for information concerning discrimination or denial of equal protection on the basis of...religion." A consultation would be an excellent place to start, and would provide valuable information, as well as non-adversarial forum for the airing of divergent viewpoints. There are no easy answers to the questions posed above, for they raise the delicate question of the "proper" relationship between law and religion. Even a glance into the issues raised by the situation in Nebraska will demonstrate the complexity and breadth of the issues involved. Review of the relevant facts, briefly summarized below, indicates that the situation which gave rise to the Nebraska dispute has not been resolved, but only deferred for the present. Given that the First Amendment lies at the core of the dispute, it is inevitable that the dispute will eventually have to be resolved at the federal level. Commission action would serve to get the debate started and the facts on the table. III. Facts & Relevant Case Law It is crucial that the Commission understand that the stakes in cases involving religious schools are of the highest order: Otherwise law-abiding parents have defied the law -- or fled the state -- in order to practice their religion and preserve the integrity of their families; and the state, in turn, has incarcerated parents for contempt of court for refusal to cooperate in a process that can (and sometimes does) lead to criminal charges or loss of the custody of their children for neglect of their education. The Free Exercise claims themselves, if accepted, challenge the accepted professional wisdom respecting the requirements for a "quality" education, and are controversial for that reason. But, on examination, it can be seen that the issues are the same as in any discrimination case: are the state regulations narrowly drawn to effectuate only legitimate state interests, and do they do so? Compare, e.g., 42 U.S.C. § 2000e-2(e) (BFOQ requirements of Title VII). The "Nebraska Seven" case arose as a result of continued enforcement efforts by the State of Nebraska aimed at assuring compliance with state regulations governing "approval" of schools. In Nebraska ex rel Douglas v. Faith Baptist Church, 207 Neb. 802, 301 N.W.2d 571 (1981), appeal dismissed 454 U.S. 803 (1981), the Nebraska Supreme Court, rejected a claim that the rules of the Nebraska Department of Education were unconstitutional on their face. On September 11, 1979, the District Court of Cass County, Nebraska entered a judgment enjoining certain named defendants from "...further operation of a private school or the using of church property for the operation of a private school until such time as they have complied with the Nebraska statutes and the rules and regulations of the Department of Education governing approved schools..." (Order of Injunction dated March 27, 1981). The decision of September 11, 1979 was affirmed by the Nebraska Supreme Court in Faith Baptist Church and was the basis for the injunction ordering the school closed. With this injunction began a series of attempts by the State to close down the school or obtain compliance with orders that the school be "approved". The method chosen was civil contempt proceedings, although criminal prosecution was an alternative. Over the period from March 27, 1981 through the present time, a series of injunctions, orders, hearings, lawsuits by church members, and jailings for refusal to close the school has occurred. Only two of these proceedings will be described here: the contempt proceedings of November, 1983 which resulted in the 92-day incarceration of the "Nebraska Seven",2/ and the order to padlock the school dated October 14, 1982, which resulted in a raid by sheriff's deputies and state patrol officers on the Faith Baptist Church during a prayer service, the physical removal of over sixty ministers from the church, and the padlocking and guarding of the church, inside and out, by armed deputies. A partial trial docket is attached as Exhibit 1. 1) The Contempt Proceedings of November, 1983 On October 27, 1983, the Cass County Attorney, Ronald D. Moravec, sought "orders to show cause" why Raymond Robinson, James 27 Of the seven incarcerated individuals, only two had been parties to the Original Faith Baptist Church litigation. |