Glenn, Herman Buchanan, Kenneth Stastny, Larry Nolte, Ralph Liles and David Carlson; and their wives, should not be held in contempt for sending their children to a non-"approved" school.3/ On November 23, 1983 the seven fathers voluntarily appeared before Cass County Judge Ronald E. Reagan pursuant to the orders. Their wives, also served, did not appear, and bench warrants were issued for their arrest. They were then tried for civil contempt in absentia [Tr: 11-23-83 at 14-15]. The sole charge before the court was the parents' participation in the operation of a non-approved school.4/ When the hearing commenced, the fathers indicated that they had "had some difficulties in locating counsel" and that they appeared without counsel because they "intend[ed] to use the Fifth Amendment." [R. of 11-23-83 at 5]. Mr. Carlson stated "I do not wish to be a witness against myself, and therefore, I'll claim the Fifth Amendment." [Tr: 11-23-83 at 5-6]. There is no question that admissions regarding the participation in the school could be used as the basis of either a criminal charge (truancy or criminal contempt). Incarceration for civil contempt had already been used against the pastor. From a reading of the record, it seems clear that the seven fathers were not aware of the proper legal procedure surrounding a claim of Fifth Amendment privilege, or of the significance of their refusal to testify in the face of an order to do so. When the District Attorney sought to question each of the fathers, each claimed the privilege, and each, in turn, was remanded to the Cass County Jail for refusal to answer "until such time as [he] purge[d] himself" by answering the Court's questions. At the close of proceedings on November 23, 1983 (the day before Thanksgiving), the judge noted "that the very earliest the contempt proceedings [sic] could be purged would be December 5 [1983]" because of the Thanksgiving holiday and the fact that he would be attending a judicial seminar out of state. [R. 11-23-83 at 42]. The next hearing was held on December 6, 1983. At that hearing the primary focus was a statement form provided by the Court (see Exhibit 2) which recited the "understanding" of each of the defendants regarding his ability to purge the contempt. It included a space to indicate whether or not he would answer questions and a signature line. The statements made by the men on the court-provided form were taken, in jail, by the sheriff, without counsel present. Ralph Liles' form, a copy of which appears as Exhibit 2, indicated that he "[would] not sign anything without talking to [his] attorney first." When it was made clear that the 3/ Contempt citations were also sought against the Pastor, Rev. Everett Sileven, and others. As indicated previously, several of those served had faced prior contempt orders. The rules for approval of schools are summarized in part B and appear as an Exhibit to this memorandum. 4/ Since only two of the parents, Mr. Liles and Mr. Carlson, were parties to the original lawsuit, it is not accurate to state that the First Amendment rights of the non-parties had been. litigated in the Faith Baptist litigation. The question of the court's jurisdiction to compel compliance with an injunction by a non-party with notice of the injunction is a question of Nebraska law which is not addressed here. Where, as here, the basis for the alleged non-compliance is a claim of individual Free Exercise rights, the state law question takes on added significance: refusal by a state court in a contempt proceeding to consider the merits of a federal consitutional claim which has not been litigated as to that person's individual claim arguably denies law. rights without process of federal due 2. seven would not testify--still basing their refusal on the Fifth Amendment--the court granted the District Attorney's motion to continue the matter [i.e. keep them in jail] "indefinitely until these parties decide that they will comply with this Court's order [to testify]."5/ The next hearing was held on December 14, 1983. At this time the incarcerated men were represented by counsel, and a lengthy discussion with the court was had regarding Fifth Amendment claims and relevant Nebraska law. Nothing was resolved, but the judge did make a statement on the record that "nobody's going to be able to use their answers to punish them." The record makes it clear, however, that there was no agreement concerning the legal sufficiency of the purported grant of immunity under Nebraska law. Nevertheless, the judge indicated that "if they don't answer and I order them to, they're going to go right back [to jail]". [R. 12-14-83 at 16, 16-20]. When counsel objected to the questions asked by the District Attorney, the judge ordered them answered. The answers were refused on the basis of the Fifth Amendment, and the men were sent back to jail. Applications for bail pending expedited appeal were denied and the matter was postponed "until further order." The men stayed in jail. The next hearings were held on January 5-6, 1984. By this time the men had been in jail for 44 days. One of the men, Raymond Robinson, the father of seven children aged 1-12 and a Vietnam veteran, agreed to testify. He admitted that he had sent his children to Faith Christian School, and voluntarily promised not to send his children back to the school until it was approved. On Thursday, February 23, 1984, the remaining incarcerated men were released from jail by agreement with the District Attorney after making the same promise. They had been in jail for 92 days. For the present, the "back of this rebellion" had indeed been broken. The Raid and Padlocking of Faith Baptist Church On October 14, 1982, the Nebraska District Court (Raymond J. Case, Judge) ordered the school "secured" with padlocks. The pastor of Faith Baptist Church, Everett Sileven, was already in jail serving a 3 month, 17 day sentence for civil contempt (operating the school) which had been imposed on May 5, 1982, to commence on September 1, 1982. According to those interviewed, the events described here took place while negotiations between counsel for the church and the state were going on concerning a settlement. On the evening of October 14 or 15, 1982 there was a meeting of the steering committee which was advising the church and its pastor. Its members were some 66 pastors of local churches, and they met that evening in the Faith Baptist Church. According to one of the committee's members, the meeting broke up very late, and the pastors decided 5/ It is interesting to note that the judge took great pains to justify his actions to the media present in the courtroom. While there is little doubt that legal arguments can be made in support of some of the judge' actions, the transcript itself shows that the incarcerated men did not understand the technically proper way to assert their Fifth Amendment rights, and the judge made no attempt to explain it to them. At the hearing of December 6, 1983, the judge indicated that these individuals had "essentially received immunity" from criminal prosecution, but nowhere does the trial record indicate how or when this alleged immunity was offered. It is also interesting to note a charge made by several individuals I have interviewed regarding out-of-court statements by the judge prior to these hearings to the effect that he was "going to break the back of this rebellion." The charge has not been verified, but, if true, it raises substantial questions of procedural fairness. to remain in church for a prayer service which lasted until early morning. With the morning came deputy sheriffs and officers of the state highway patrol bearing the order to "secure" the school. The sheriff ordered the ministers out of the church pursuant to the court's order. When they refused on the grounds that they were conducting a prayer service, they were physically removed from the premises. The church and school were then padlocked, and guards were posted both inside and outside the church. According to reports which have not been verified, these events so antagonized church supporters that threats of physical violence began to be heard. The order securing the church was modified, but neither the reasons, nor the event are recorded on the copy of the docket I was able to obtain. (Exhibit 1) A video tape of these events was supplied to the Commission in response to Chairman Pendleton's inquiry in January. It is in the Commission's file. 3. Related Litigation. Not surprisingly, a number of lawsuits, state and federal, have arisen from the events described above. The Nebraska Supreme Court refused to review the judge's December 14 order on the grounds that it was "not appealable". Habeas Corpus petitions were filed in the Nebraska state courts raising the Fifth Amendment issues, but were delayed due to the district judge's absence and the other county judge's unwillingness to involve himself in the case. Federal habeas corpus petitions were filed with the United States District Court in Lincoln, but were not given expedited hearing. When finally heard, the federal court refused to intervene in the ongoing state proceeding. An appeal to Justice Blackmun of the United States Supreme Court for stay of the December 14 order of Nebraska District Court was rejected on jurisdictional grounds, with the note that "[t]he Fifth Amendment claims made by the applicants did not appear to be insubstantial" 52 U.S.L.W. 3596 (February 21, 1984). By the time the Nebraska judge had returned, the settlement described above had been reached. The lawsuit arising from the raid on the church was filed in the United States District Court in Lincoln. McCurry v. Tesch, No. 82-L-695. That case resulted in a decision that all the state officials were immune from suit under the federal civil rights laws. The appeal of this decision was argued in the United States Court of Appeals for the Eigth Circuit on February 17, 1984. McCurry v. Tesch, No. 83-291-NE. Additional lawsuits, not described here, raise the many other complex federal and state issues involved in the controversy. B. Pervasive State Regulation of Church Schools: Religious Freedom and Education. The case of the "Nebraska Seven" is both a personal tragedy for the parties and the symptom of a growing civil rights controversy. The personal and social dimensions of the civil rights issue are described above. This section deals with the broader Free Exer icse policy issues raised by increasingly pervasive government regulation of church schools. It should be made clear at the outset that there is, indeed, a federal interest in this question: the degree to which the Free Exercise Clause of the First Amendment protects the freedom of parents to choose a religiously oriented education for their children, and the freedom of churches to offer such education without unduly burdensome interference by the state. The stakes in such controversies are high: prosecution of parents for truancy or neglect, loss of custody for neglect based on failure to provide adequate education, and punishment of church officials for educational activities which they view as central to the religious mission of their church. It simply is not possible to designate the controversy either as simply "educational" one and, hence, a "state" issue, or as totally "religious" and, hence, not a matter for proper governmental concern. Rather, the issue is a complex, constitutional controversy involving religion, education, the rights of parents and children, and the perogatives of the state. The right of parents to educate their children in a manner consistent with their religious beliefs was first recognized by the Supreme Court in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) and Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571 (1925). The right was explicity founded on the First Amendment in 1972 in Wisconsin v. Yoder, 406 U.S. 205,92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), a case involving Amish defiance of Wisconsin's compulsory high-school education law.67 In Yoder, the Court held that accommodation of Amish objections to "conventional formal education of the type provided by a certified highschool" was required where the state could not demonstrate that the parental Jecisions would "jeopardize the health or safety of the child, or have a potential for significant social burdens." ... "...[W]hen the interests of parenthood [recognized Prior to Yoder, the Court had also made it clear in the Free Exercise context that state must draw its regulations narrowly, and demonstrate that "no alternative forms of regulation would combat [the target] abuses without infringing First Amendment rights." Sherbert v. Verner, 374 U.S. 398, 408, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963). The reason, said Justice Brennan, is that "in this highly sensitive constitutional area, 'only the gravest abuses, endangering paramount interests', give occasion for permissible limitation." Id, 374 U.S. at 406, 83 S.Ct. at 1795. 6/ Prior to Cantwell v. Connecticut, 310 U.S. 296 (1940) and Everson v. Board of Education, 330 U.S. 1 (1947), the Religion Clauses of the First Amendment were construed in accordance with the original intent of the framers of the Constitution and of the Fourteenth Amendment that public policy regarding local religious matters was an issue to be left to the states. For general discussion of the historical and theoretical arguments on this topic, see generally, F.W. O'Brien, Justice Reed and the First Amendment (1958); A.W. Meyer, The Blaine Amendment and the Bill of Rights, 64 Harv.L.Rev. 939 (1951); L.Pfeffer, Church, State and Freedom(1967); L. Pfeffer, God, Caesar and the Constitution (1976). In keeping with a judicial trend which began in the early 1900's, and which is now known as "substantive due process", the Court decided Pierce and Meyer on "liberty" grounds, without reference to the First Amendment. It is this "liberty," protected by the Fourteenth Amendment which "incorporates" and applies First Amendment limitations to the power of the states. For a general discussion of incorporation and substantive due process, see generally, R. Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1977); A. Cox, The Role of the Supreme Court in American Government (1976), C.L. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan.L.Rev. 5 (1949). Given these and other precedents limiting government "entanglement" in the internal affairs of churches, it was not surprising that a controversy based on the federal constitution would arise concerning permissible state regulation of church schools. Many states regulate, in great detail, the day-to-day operational aspects of all "approved" or "accredited" schools. The following charts, current to 1981, will show the types of regulation at issue.8/ 77 8/ See, e.g., N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313 (1979) (teacher labor contracts); Serbian Eastern Orthodox Diocese v. Milevojevich, 426 U.S. 696, 96 S.Ct. 2372 (1976) (internal management and doctrine); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971) (administrative entanglement). The charts are taken, with permission, from an unpublished doctoral dissertation, C.S. Romans, "State Regulation of Private Schools: 'Compelling State Interest' and the First Amendment," (c) 1981, on file at Kent State University, Kent, Ohio (261 pp.) The author has indicated to me that several changes have been made in some states since 1981, but they are not material to this discussion. |