Schools – Part 1

Church Law and Tax 1990-03-01 Recent Developments Schools Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Schools

Church Law and Tax 1990-03-01 Recent Developments

Schools

Richard R. Hammar, J.D., LL.M., CPA

• A federal appeals court ruled that the constitutional guaranty of religious freedom did not exempt a fundamentalist Christian school from state approval. The Massachusetts compulsory attendance law requires children to attend schools (public or private) that have been “approved” by the state. Private schools are approved if their educational program is comparable (in thoroughness and efficiency) to public education. A Baptist church claimed that it was a sin to “submit” its private school to secular authority for approval, and accordingly that the law subjecting the school to state approval violated the constitutional guaranty of religious freedom. Specifically, the church’s religion taught that “God is the sovereign and the final authority in all human conduct [and that] to submit [the church’s] educational ministry for the prior or continued approval of secular authorities would violate the sovereignty of Christ over his church and would, therefore, be a sin.” To help resolve the controversy, the church proposed that its students voluntarily take standardized tests to assure the competency of the school’s educational program, and the test results be shared with the state. A federal trial court agreed with the church, and found that requiring state “approval” of the school violated the church’s constitutional rights. The state of Massachusetts appealed, and a federal appeals court reversed the trial court’s decision and ruled in favor of the state. The court conceded that the state’s “approval” requirement violated the sincerely-held religious beliefs of the church. However, it concluded that the state law was supported by a “compelling” governmental interest that outweighed the church’s religious convictions. It observed that “it is settled beyond dispute that the state has a compelling interest in insuring that all its citizens are being adequately educated.” The court cited with approval an earlier pronouncement of the United States Supreme Court: “A substantial body of case law has confirmed the power of the states to insist that attendance at private schools, if it is to satisfy state compulsory-attendance laws, be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction …. If the state must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function.” Finally, the court rejected the church’s claim that the state’s interest in competent education could be satisfied through voluntary standardized testing. It noted that “tests, at best, reveal what has occurred.” Further, can the state be certain that “good results reflect good teaching … rather than simply teaching the answers to questions the teachers believe will appear on tests?” The court acknowledged that some states allow mandatory standardized testing to monitor the quality of private education (it cited Alaska, North Carolina, South Dakota, and West Virginia). However, the court could find no state that uses voluntary testing to insure the adequacy of private education. New Life Baptist Church Academy v. East Longmeadow, 885 F.2d 940 (1st Cir. 1989).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m65 m47 c0290

Legal Developments

Schools – Part 2

Church Law and Tax 1990-03-01 Recent Developments Schools Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Michigan
Categories: Schools

Church Law and Tax 1990-03-01 Recent Developments

Schools

Richard R. Hammar, J.D., LL.M., CPA

• A Michigan state appeals court upheld the conviction of two families for violating the state compulsory education law for “homeschooling” their children without the use of a state-certified teacher. The parents claimed that they had a God-given mandate to educate their children at home, and that allowing the state to certify their children’s teachers amounts to an interference with God’s authority. Submitting to the state’s authority would “constitute a sin.” The court rejected the parents’ claim that the teacher-certification requirement violated their constitutional right to religious freedom. It concluded that any burden imposed on the parents’ religious beliefs was “minimal,” and that it was clearly outweighed by a “compelling state interest.” The court observed that the parents’ pastor testified that the church did not oppose teacher-certification and did allow “delegation of the parents’ education responsibility.” Accordingly, the court characterized the parents’ belief as “personal rather than religious,” and as such not entitled to constitutional protection under the first amendment. The court further noted that the parents were free to hire a certified teacher “who meets their qualifications,” and that “teachers can fulfill all the state certification requirements while attending … a religious institution.” For all of these reasons, “the infringement on free exercise [or religion] rights is minimal and is outweighed by the state’s interest.” The court acknowledged that “state licensure does not guaranty quality teachers, but one cannot ignore the high likelihood that a person who meets the qualifications for certification has absorbed the knowledge a competent teacher should have.” People v. DeJone, 445 N.W.2d 503 (Mich. App. 1989).

Legal Developments

Child Abuse – Part 2

Church Law and Tax 1990-01-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Minnesota
Categories: Child Abuse, Schools

Church Law and Tax 1990-01-01 Recent Developments

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• The Minnesota Supreme Court ruled that a state law requiring the reporting of known or reasonably suspected incidents of child abuse to state authorities was unconstitutionally vague. Here are the facts. An elementary school principal received reports from two mothers that their boys had been sexually contacted by a particular teacher in the school. The principal failed to report such incidents to the authorities, and he later was prosecuted for violating a state law requiring any “professional engaged in the practice of education who knows or has reason to believe a child is being neglected or physically or sexually abused” to report the incident to the state. The principal claimed that the child abuse reporting law was unconstitutional since it was too “vague.” The court acknowledged the “fundamental principle that a [criminal] statute must define the criminal offense with such definiteness that ordinary people can understand what conduct is prohibited … in a manner that does not encourage arbitrary or discriminatory enforcement.” The principal argued that the phrases “reason to believe” and “physically or sexually abused” are so uncertain that reasonable persons cannot determine their actual meaning. A trial court agreed with the principal’s position, but the state supreme court reversed. It ruled that state law did sufficiently define the term “physically or sexually abused” (sexual abuse was defined as any contact that violates the state criminal sexual contact law), and that the term “reason to believe” also had a definite meaning under Minnesota law. The court also rejected the principal’s argument that his right of “free speech” was violated by his prosecution for violating the child abuse reporting law. All the law required, observed the court, was the reporting of information—”a requirement not altogether dissimilar from that imposed by the Internal Revenue Code.” Finally, the court observed that “a professional is free to include in a report that although the report is mandated because the reporter has reason to believe that a child has been abused, the reporter does not hold a personal belief that the child has been physically or sexually abused.” This case illustrates a number of important principles: (1) Every state has a child abuse reporting law requiring certain persons to report known or reasonably suspected cases of child abuse. It is imperative for you to determine which persons are required to report under your state law, since a failure to report (by a person having a legal duty to report) may result in criminal prosecution. (2) Child abuse reporting laws may not be as clear as we would like, but they have been upheld by a number of courts, including the Minnesota Supreme Court. (3) Church leaders should not only determine which employees and volunteers have a legal duty to report, but they also must familiarize themselves with the definition of “sexual” and “physical” abuse under state law. Contact that may seem too trivial to report may well satisfy the definition of sexual abuse under state law. (4) The court specifically acknowledged that “a professional is free to include in a report that although the report is mandated because the reporter has reason to believe that a child has been abused, the reporter does not hold a personal belief that the child has been physically or sexually abused.” State v. Grover, 437 N.W.2d 60 (Minn. 1989).

Legal Developments

Insurance – Part 3

Church Law and Tax 1989-11-01 Recent Developments Insurance Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Minnesota
Categories: Schools

Church Law and Tax 1989-11-01 Recent Developments

Insurance

Richard R. Hammar, J.D., LL.M., CPA

• A federal district court in Minnesota resolved a dispute between a church-operated school and its liability insurance company regarding payment of a claim. The school had purchased a policy insuring against wrongful acts of its employees. While the insurance was in force, a female employee notified the school principal that she intended to resign. The principal informed her that her husband (who also was an employee of the school) would be fired if she quit. Soon after this conversation, the wife resigned and the husband was fired. The husband filed a “marital discrimination” claim against the school under a Minnesota human rights law, and the school eventually settled the claim with the husband for $15,000. The insurance company refused to reimburse the school for the amount of the settlement on the grounds that (1) the settlement did not constitute an insurable loss under the policy, (2) the school should not able to insure itself against unlawful actions by its employees, and (3) employers should not be permitted to “shift” their labor costs onto their insurers. The court rejected all of these claims. It concluded that the school’s settlement of the discrimination claim was a “loss” under the insurance policy since it was a liability resulting from an employee’s wrongful act. It further noted that insurance company had “failed to show that unlawful acts relating to termination of employment are uninsurable.” Convent of the Visitation School v. Continental Casualty Co., 707 F. Supp. 412 (D. Minn. 1989).

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m50 m65 c0689

Legal Developments

Employee Relations

Church Law and Tax 1989-09-01 Recent Developments Employment Practices Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Virginia
Categories: Schools

Church Law and Tax 1989-09-01 Recent Developments

Employment Practices

Richard R. Hammar, J.D., LL.M., CPA

• Must a church pay overtime compensation to employees of a religious school? Yes, concluded a federal district court in Virginia. Here are the facts. Shenandoah Baptist Church (an unincorporated church located in Roanoke, Virginia) established a preschool and an elementary and secondary school in order to carry out its education ministry (which it described as its “total ministry”). Both the church and the government agreed that between 1976 and 1982 the church paid 91 non-teaching staff (i.e., custodians, bus drivers, bookkeepers, secretaries) hourly wages below the “minimum wage” prescribed by federal law. In deciding whether or not the federal minimum wage law applied to church school employees, the court referred to a test announced by the United States Supreme Court in 1979—federal legislation generally cannot be applied to churches if it would impose a “significant risk” of infringing upon the church’s constitutional guaranty of religious freedom unless Congress “clearly and affirmatively intended” such a result. The court conceded that application of the minimum wage law to church school employees might “pose serious constitutional questions,” but it concluded that Congress had “clearly and affirmatively intended” that such employees be covered and accordingly that such coverage was permissible. It referred to a 1966 amendment in the minimum wage law that specifically included the non-teaching staff of private schools within the coverage of the law. The court further observed that the church’s constitutional guaranty of religious freedom would not have been violated even if Congress had not clearly and affirmatively demonstrated its intention to include non-teaching staff of private schools within the coverage of the minimum wage law, since the government’s interest in “insuring that workers are paid a wage sufficient to provide for themselves and their families” was a compelling interest that “outweighed” the church’s interests. The court noted that the United States Supreme Court ruled in 1982 that Amish employers could be compelled to pay social security (FICA) taxes on their employees’ behalf even though such a practice would violate the employers’ religious beliefs. The Supreme Court conceded that paying the FICA taxes would “interfere” with the employers’ religious beliefs, but it concluded that the government’s interest in “assuring mandatory and continuous participation in and contribution to the social security system is very high” and in fact outweighed the employers’ interests. Similarly, the application of federal minimum wage law to the non-teaching staff of a church school would admittedly interfere with the church’s religious freedom, but “the government has a great interest in enforcing minimum wage laws uniformly” that outweighs the church’s interests. The court also ruled that the church had violated the federal “equal pay” law that requires employers to pay employees equal pay for equal work, regardless of gender. The church was ordered to pay $16,818 to the Department of Labor (to be distributed to employees who were not paid minimum wage) and $177,680 to the Equal Employment Opportunity Commission (to be distributed to employees whose pay violated the equal pay law). The court conceded that the church employees were free to return to the church any portion of their award that they chose, so long as their decision was voluntary. Further, the church was free to encourage employees to return their awards. But, employees not electing to return their awards could not be penalized by the church. The court’s decision is significant for its recognition that church school employees (other than teachers and administrators) are subject to federal minimum wage law despite a church’s claim that such coverage violates its constitutional right of religious freedom. The ruling will be of even greater impact if congressional efforts to increase the minimum wage succeed. Note, however, that the decision is restricted to the coverage of non-teaching staff at church schools. It says nothing regarding the coverage of church employees not associated with a private school. Further developments in this important case will be tracked in future issues of this newsletter. United States Department of Labor v. Shenandoah Baptist Church, 707 F. Supp. 1450 (W.D. Va. 1989).

Legal Developments

Freedom of Religion – Part 1

Church Law and Tax 1989-09-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Arkansas
Categories: Schools

Church Law and Tax 1989-09-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Two federal appeals courts addressed the issue of the right of Christian student groups to meet on public high school campuses for Bible study and prayer prior to the start of the school day. One court concluded that such groups have a legal right to meet on public school property, and the other court ruled that they do not. The United States Court of Appeals for the Eight Circuit (which includes the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota) concluded that Christian student groups have a legal right to meet on a public high school campus for Bible study and prayer prior to the start of the school day. The group in question (comprised of students at a Nebraska public high school) had argued that their school’s refusal to allow them to meet on school property violated the constitutional guaranty of religious freedom and the federal “Equal Access Act.” The Equal Access Act prohibits public high schools from denying any group access to school facilities during “noninstructional” hours on account of the religious content of the group’s speech if the school has established a “limited open forum” by making the same facilities available to “one or more noncurriculum related student groups.” The Christian group argued that the school had created a limited open forum by permitting several “noncurriculum related groups” to meet on school property (including the chess club, a junior Rotary Club, and a scuba diving club), and accordingly the school could not deny the Christian group access to the same facilities during noninstructional hours. School officials argued that they had not created a limited open forum, since all of the clubs that met on school property were curriculum related. They pointed out that the chess club was related to logic (though no logic courses were taught at the school), the junior Rotary Club was related to sociology, and the scuba diving club was related to physical education. The federal appeals court rejected the school’s claim that the Equal Access Act did not apply since all of the student clubs were curriculum related: “Allowing such a broad interpretation of ‘curriculum-related’ would make the Equal Access Act meaningless. A school’s administration could simply declare that it maintains a closed forum and choose which student clubs it wanted to allow by tying the purposes of those student clubs to some broadly defined educational goal. At the same time the administration could arbitrarily deny access to school facilities to any unfavored student club on the basis of its speech content. This is exactly the result that Congress sought to prohibit by enacting the Equal Access Act. A public secondary school cannot simply declare that it maintains a closed forum and then discriminate against a particular student group on the basis of the content of the speech of that group.” The court concluded that “many of the student clubs [at the high school in question], including the chess club, are non-curriculum-related” and therefore the school had established a limited open forum and “the Equal Access Act forbids discrimination against [the Christian student group] on the basis of its religious content.” The court also rejected the school’s claim that the Equal Access Act violated the constitution. The court noted that the United States Supreme Court had ruled in 1981 that a public university could not deny a Christian student group access to university facilities that were available to other student groups. This ruling, concluded the appeals court, demonstrated the validity of the Equal Access Act. The court rejected the school’s argument that the Supreme Court’s ruling should be limited to university students on account of the greater impressionability and immaturity of high school students. It noted that “Congress considered the difference in the maturity level of secondary students and university students before passing the Equal Access Act. We accept Congress’ fact-finding.” The ruling is controlling in the eighth federal judicial circuit (which includes the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota)—unless reversed or modified by the same court in a later decision, or by the United States Supreme Court. Mergens v. Board of Education of Westside Community Schools, 867 F.2d 1076 (8th Cir. 1989).

Legal Developments

Freedom of Religion – Part 2

Church Law and Tax 1989-09-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1989-09-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Another federal appeals court ruled that a Christian student group could not meet on a public high school campus for Bible study and prayer prior to the start of the school day. The court noted that allowing the students to meet on school property would violate the first amendment’s nonestablishment of religion clause, since “it would have the primary effect of advancing religion, and it would foster government entanglement with religion.” The court acknowledged that the United States Supreme Court has upheld the right of students to meet in public university facilities for religious purposes if the facilities are made available to other groups. However, it concluded that there is a significant difference between high school and college students that warrants a different result: “Unlike university students, high school students are required to attend school. The instructional format at a high school is far more structured that at a university. High school students are less mature and more impressionable than university students. Teachers at high schools, unlike college professors, are both educators and authority figures. The same considerations that mandate special vigilance in preventing religious establishments in public schools—the impressionability of young students, compulsory attendance laws that make students a captive audience, and the role of public schools in inculcating democratic ideals—distinguish public secondary schools from public universities.” The court also rejected the students’ claim that the school’s refusal to allow them to meet violated the federal “Equal Access Act.” The Act (explained in the previous case summary) generally provides that a public high school cannot deny Christian students the right to meet on school property during “noninstructional” (i.e., nonschool) hours if the school has created a “limited public forum” by permitting “noncurriculum-related” groups to use the same facilities. The court concluded that the Act simply did not apply since the school did not allow any noncurriculum-related group to use school facilities during noninstructional hours and accordingly had not created a limited open forum. The ruling is controlling in the ninth federal judicial circuit (which includes the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington)—unless reversed or modified by the same court in a later decision, or by the United States Supreme Court. Garnett v. Renton School District, 865 F.2d 1121 (9th Cir. 1989).

Legal Developments

Freedom of Religion – Part 3

Church Law and Tax 1989-09-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Illinois
Categories: Freedom of Religion, Schools

Church Law and Tax 1989-09-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Can Gideon Bibles be handed out to students on a sidewalk in front of a public high school? Yes, concluded a federal district court in Illinois. Several adults who handed out Gideon Bibles on the sidewalk were informed by school officials that their conduct “would not be permitted.” A lawsuit was filed to determine whether the school could stop the Bibles from being distributed. The court ruled that a sidewalk in front of a public school is a “public forum,” and as such it can be used for distributing literature unless the school can demonstrate that such an activity materially interferes with public safety or order. The court concluded that it would be “nonsense” to say that a sidewalk in front of a public high school is not a public forum. If further ruled that the school had failed to demonstrate that the practice of distributing Bibles would in any way interfere with public safety or order. Finally, the court rejected as “patently absurd” the school’s claim that permitting the distribution of Bibles on the sidewalk would violate the first amendment’s nonestablishment of religion clause. Bacon v. Bradley-Bourbonnais High School, 707 F. Supp. 1005 (C.D. Ill. 1989).

Legal Developments

Clergy

Taxes

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1989-09-01 Recent Developments

Clergy – Taxes

Richard R. Hammar, J.D., LL.M., CPA

• Are clergy who serve in faculty and administrative positions at a church-related university eligible for housing allowances? Yes, concluded the IRS in a recent ruling, if the university qualifies as an integral agency of a religious organization under the control of a church or religious denomination. This is so even with respect to clergy who are not serving in the university’s school of theology. In clarifying the meaning of an integral agency, the IRS referred to an earlier ruling in which it listed 8 criteria to be considered in determining whether a particular university or other organization is an integral agency of a religious organization: (1) whether the religious organization incorporated the institution; (2) whether the corporate name of the institution indicates a church relationship; (3) whether the religious organization continuously controls, manages, and maintains the institution; (4) whether the trustees or directors of the institution are approved by or must be approved by the religious organization or church; (5) whether trustees or directors may be removed by the religious organization or church; (6) whether annual reports of finances and general operations are required to be made to the religious organization or church; (7) whether the religious organization or church contributes to the support of the institution; and (8) whether, in the event of dissolution of the institution, its assets would be turned over to the religious organization or church. The IRS concluded, based upon its review of the university’s organizational documents, that most if not all of the 8 criteria were satisfied, and accordingly, that clergy who served in faculty and administrative positions were eligible for housing allowances (and in addition were exempt from income tax withholding and were to be considered self-employed for social security purposes). Private Letter Ruling 8922077.

Legal Developments

Schools

Church Law and Tax 1989-09-01 Recent Developments Schools Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: North Dakota
Categories: Schools

Church Law and Tax 1989-09-01 Recent Developments

Schools

Richard R. Hammar, J.D., LL.M., CPA

• The North Dakota Supreme Court ruled that two parents who had educated their children at home were properly convicted for violating the state compulsory education law. The parents had failed to apply for a timely exemption from the compulsory education law, which generally requires parents to send their children to a public school or approved private school unless they obtain an exemption permitting them to educate their children at home. The court also rejected the parents’ claim that the state compulsory education law was unconstitutional “because the teacher certification requirement for religious schools is not the least restrictive alternative to achieving the state’s interest in providing adequate education for children.” The court noted that “this issue has been resolved by this court in prior decisions contrary to the [parents’] position. We decline [their] invitation to overturn those decisions.” State v. Toman, 436 N.W.2d 10 (N.D. 1989).

See also Employment practices, United States Department of Labor v. Shenandoah Baptist Church, 707 F. Supp. 1450 (W.D. Va. 1989).

Legal Developments

Freedom of Religion – Part 3

Church Law and Tax 1989-07-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Colorado
Categories: Schools

Church Law and Tax 1989-07-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Can a public elementary school legally ban the Bible from the school library and prohibit a teacher from reading a Bible silently during classroom hours? These were the issues before a federal district court in Colorado. The court concluded that the school had acted improperly in banning the Bible from the school library. Noting that a school library is “a place where students must always remain free to inquire, to study and to evaluate,” the court concluded that “it is inconceivable that the Bible should be excluded from a school library.” Aside from maintaining a Bible in a public school library, the court emphasized that public schools can use the Bible “as part of a secular course of study.” It observed: “A study of American history would be incomplete without reference to the Bible. The American revolution and the founding of our country cannot be taught without a discussion of religious freedom and occasional references to the Bible. Likewise, it would be impossible to understand the civil rights movement of the 1960’s without reference to religious groups and their beliefs in Christianity and the Bible. The study of literary works, such as Shakespeare, Milton, and Dante, is greatly enhanced by reference to the Bible. A study of the evolution of agricultural practices finds that Biblical law prescribed giving the land a rest every seventh year (Exodus 23), an accepted practice in today’s agricultural science. An inquiry into the roots of our modern day privilege against self-incrimination would be incomplete without reference to the Bible. The Bible’s Song of Solomon may be as fruitfully studied for its poetic qualities as its religious precepts.” The court did order the removal of two religious books (The Bible in Pictures and The Life of Jesus) from a fifth grade classroom library—noting that a teacher had placed them in the library solely to advance his own religious views and not as part of “a secular, historical course of study approved by the [school board] as part of the curriculum for fifth grade students. The court also prohibited the fifth grade teacher from reading his Bible during classroom hours in front of his students, citing the “vulnerability” of fifth graders to the “examples set by their teachers. “It is unrealistic,” concluded the court, “to think that bright, energetic students are oblivious to what their teacher reads.” Roberts v. Madigan, 702 F. Supp. 1505 (D. Colo. 1989).

Legal Developments

Freedom of Religion – Part 1

Church Law and Tax 1989-07-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Schools

Church Law and Tax 1989-07-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• A federal district court in Pennsylvania ruled that a public high school that allows outside, non-school related groups to use its facilities during noninstructional hours may not deny the same privilege to any group on the basis of the religious content of its speech. The school in question allowed a number of community groups to use its facilities after hours, including scouting organizations, Rotary Club, Kiwanis, Lions, Junior Chamber of Commerce, labor unions, and commercial concerts. However, it refused to allow an evangelical Christian organization to rent the school auditorium for a religious program. The religious group petitioned the court for an order prohibiting the school from refusing to rent the facilities to it. The court agreed, noting that the school had created an “open forum” by allowing community groups to use its facilities, and that the constitutional guaranty of freedom of speech barred the school from discriminating against religious groups because of the content of their speech. It observed that the school “cannot continue to allow the designated groups and organizations to use its facilities, but exclude any applicant … who seek to use the facilities to speak about religion, because that would once again be content-based discrimination against speech in an open forum.” The court did note that if a religious group desired to use the facilities for “some sort of religious ceremony, rite, or ritual, then [the school] would be permitted, under constitutional standards, to deny a facility use application since the forum created by [the school] is an open one only for speech purposes.” Gregoire v. Centennial School District, 701 F. Supp. 103 (E.D. Pa. 1988).

Legal Developments

Freedom of Religion – Part 2

Church Law and Tax 1989-07-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1989-07-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Are invocations delivered before public high school football games legally permissible? No, concluded a federal appeals court. Between 1947 and 1986, a Protestant minister delivered an invocation prior to home games at a public high school in Georgia. When a parent complained that this practice violated the “nonestablishment of religion” clause of the first amendment, the school adopted an “equal access” plan whereby invocation speakers were selected randomly among students, parents, and faculty. Ministers were no longer eligible to give invocations. Even this plan was not acceptable to the complaining parent, who filed a lawsuit challenging the constitutionality of the modified “equal access” plan. A federal district court ruled that the equal access plan was not unconstitutional “on its face,” and the parent appealed to a federal appeals court. The appeals court observed that in assessing the constitutionality of the school’s plan under the first amendment nonestablishment of religion clause, three questions must be asked—(1) whether the school had a secular purpose for adopting the equal access plan, (2) whether the plan’s primary effect is one that neither advances nor inhibits religion, and (3) whether the plan results in excessive entanglement of government with religion. The school’s plan, noted the court, violates the first amendment “if it fails to meet any of these three criteria.” The court concluded that the equal access approach to pregame invocations violated the nonestablishment of religion clause since it violated both the first and second criteria. The court observed that the school’s refusal to employ “wholly secular invocations makes it very clear that [its] actual purpose in having pregame invocations was religious.” It added that “the conclusion is inescapable that the religious invocation conveys a message that the school endorses the religious invocation.” Further, “the equal access plan places those attending football games in the position of participating in a group prayer.” The school defended the legality of the equal access plan on the grounds that the invocations (1) “occur outside the instructional environment of the classroom,” (2) “do not invoke the teacher-student relationship,” (3) “are given at public events at which attendance is entirely voluntary,” (4) “constitute a de minimis [i.e., insignificant] violation of the establishment clause because they last 60 to 90 seconds,” and (5) are similar to the Nebraska practice of opening all sessions of the state legislature with prayer—a practice upheld by the United States Supreme Court in 1983. The appeals court rejected all of these contentions. The appeals court decision is binding (unless modified or reversed by the United States Supreme Court) in the eleventh federal judicial circuit (which includes the states of Alabama, Georgia, and Florida). Jager v. Douglas County School District, 862 F.2d 824 (11th Cir. 1989).

Legal Developments

Schools

Church Law and Tax 1989-07-01 Recent Developments Schools Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Maine
Categories: Schools

Church Law and Tax 1989-07-01 Recent Developments

Schools

Richard R. Hammar, J.D., LL.M., CPA

• The Supreme Judicial Court of Maine ruled that a state law regulating homeschooling did not violate the constitutional guaranty of religious freedom. The Maine “compulsory education” law requires that children attend either a public school or “obtain equivalent instruction that is approved by the commissioner [of education].” Parents who homeschooled their children argued that “any judgment by government officials of the merits of parents’ educational choices is a usurpation by the state of the God-given, constitutionally protected religious autonomy of the family.” They directly challenged the legality of the Maine law. The court, citing Supreme Court rulings, stated that the constitutional guaranty of religious freedom is not violated unless the alleged victims can demonstrate that the exercise of their sincerely-held religious beliefs is restrained by the challenged governmental action, and that the challenged action is not based on a “compelling public interest.” The court acknowledged that the Maine law imposed a significant restraint on the exercise of the parents’ sincerely-held religious beliefs. But, it concluded that the state law was supported by a compelling interest that outweighed the parents’ constitutional rights, since “it is settled beyond dispute, as a legal matter, that the state has a compelling interest in ensuring that all its citizens are being adequately educated.” Blount v. Department of Educational and Cultural Development, 551 A.2d 1377 (Me. 1988).

Legal Developments

Freedom of Religion – Part 1

Church Law and Tax 1989-05-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Nevada
Categories: Freedom of Religion, Schools

Church Law and Tax 1989-05-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Does a church have a legal right to conduct Sunday worship services in a public high school auditorium? No, concluded a federal district court in Nevada. A church of about 100 members had been meeting in a privately-owned auditorium. Its pastor asked local school officials if the church could rent the public high school auditorium on Sunday mornings. The school officials declined this request on the basis of a school policy prohibiting use of school facilities for religious uses. The church immediately filed a lawsuit against the school district, seeking a court order permitting use of the public high school auditorium on Sundays. In support of its case, the church argued that the high school permitted many non-religious groups to rent the auditorium, and it thereby had created an “open forum” that could not be denied to any group (including a church). The school district argued that its policy of denying access to its facilities by religious groups was required by the constitutional principle of “separation of church and state.” The court agreed that the school district had created an “open forum” by permitting various community groups to rent the high school auditorium. However, the court concluded that the district’s refusal to rent the auditorium to the church was justified, since rental of the facility to the church would “have the primary effect of advancing religion” in violation of the nonestablishment of religion clause of the federal constitution. The court stressed that the church desired to use the school auditorium as the “permanent site for its church services and activities.” It noted that the church “has no building site nor does it have any present plans to acquire a site or construct a church facility.” As a result, the high school “will become the physical embodiment of the church,” and in this sense the church’s request was “significantly different” from the requests of other community organizations to rent the facility, since no other community group sought to “become permanently institutionalized within the school.” The court cited with approval a previous federal court decision in Kansas in which a court upheld the right of a church to rent public school property on a temporary basis. Presumably, had the Nevada church requested permission to rent the school auditorium for a temporary period of time (e.g., until it constructed a new sanctuary), the court would have ruled in favor of the church. This conclusion is consistent with a number of previous court rulings. Wallace v. Washoe County School District, 701 F. Supp. 187 (D. Nev. 1988).

Legal Developments

Freedom of Religion – Part 4

Church Law and Tax 1989-05-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Freedom of Religion, Schools

Church Law and Tax 1989-05-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• A federal court in Pennsylvania ruled that a state law regulating homeschooling was invalid. The law in question permitted homeschooling, but required “properly qualified private tutors” to provide the daily instruction. The term “qualified private tutor” was not adequately defined by the law, and this led to differing interpretations among the 501 school districts within the state. The court quoted one education expert who had testified that he “had heard everything that one can imagine, from persons qualified with an eighth grade education to Ph.Ds.” Such a law, concluded the court, was so vague that a parent who educated his or her children at home could not determine in advance whether such instruction was lawful under the state homeschooling law. Such a law is “unconstitutional for vagueness.” Jeffery v. O’Donnell, 702 F. Supp. 516 (M.D. Pa. 1988).

Legal Developments

Schools – Part 3

Church Law and Tax 1989-01-01 Recent Developments Schools Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

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State: Arkansas
Categories: Schools

Church Law and Tax 1989-01-01 Recent Developments

Schools

Richard R. Hammar, J.D., LL.M., CPA

• A federal appeals court rejected the contention of homeschoolers in Arkansas that a state law regulating homeschooling violated their constitutional right to religious freedom. The court concluded that the state had a “compelling interest” in the education of its citizens, and that such an interest outweighed the alleged religious convictions of homeschooling parents, provided that the state employed “the least restrictive means” of accomplishing its compelling interest. The court observed that the only restriction imposed by the state of Arkansas on homeschoolers was the requirement that their children take standardized achievement tests periodically. This limitation, concluded the court, was far less burdensome than other state-imposed limitations that had been upheld by the courts in other states, and was clearly the “least restrictive means” of assuring that the state’s compelling interest in the education of its citizens was being accomplished. The court quoted from a 1976 decision of the United States Supreme Court: “This Court has repeatedly stressed that while parents have a constitutional right to send their children to private schools and a constitutional right to select private schools that offer specialized instruction, they have no constitutional right to provide their children with private school education unfettered by reasonable government regulation …. Indeed, [this Court] has expressly acknowledged `the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils,'” Murphy v. State of Arkansas, 852 F.2d 1039 (8th Cir. 1988).

See also Personal injuries—on church property or during church activities, Brown v. St. Venantius School, 544 A.2d 842 (N.J. 1988)

Legal Developments

Schools – Part 1

Church Law and Tax 1989-01-01 Recent Developments Schools Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion, Schools

Church Law and Tax 1989-01-01 Recent Developments

Schools

Richard R. Hammar, J.D., LL.M., CPA

• A federal district court in New York ruled that a state law governing “homeschooling” did not violate the constitutional right of fundamentalist Christian parents to the free exercise of their religion. The law in question requires that educational services provided to a minor “elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools.” The law also requires that homeschooling be conducted by “competent” instructors, and calls for periodic standardized testing and the approval of a homeschool’s curriculum and textbooks. Visits of homes in which homeschooling occurs is also mandated. A group of parents challenged the law, contending that the state “did not have jurisdiction” over their children’s education. In particular, the parents maintained that their religious beliefs compelled them to give their children a religious education in which religious values are “interwoven” into every area of study, and that the New York law violated their right to religious freedom by reserving unto the state the power to approve or disapprove the manner in which they accomplished the religious education of their children. The court acknowledged that “it is with trepidation that [we] interfere with the traditional interest of parents with respect to the religious upbringing of their children.” Nevertheless, the court concluded that the state’s interest in ensuring an adequate education for its citizens was sufficiently compelling to justify the legal restrictions on homeschooling. The court observed: “Unless a child is a member of an identifiable religious sect with a long history of maintaining a successful community separate and apart from American society in general, it must be assumed that the child must be intellectually, socially, and psychologically prepared to interact with others who may not share the views of the parents in the [present case]. A state’s interest in establishing standards for the education of its young in order to prepare them for participation in American political and economic processes as well as to nurture and develop their human potential overrides the interest of parents to teach their children in a religious school or at home free from governmental interference.” The court acknowledged that the parents feared that the state would require them to teach secular matters inconsistent with their religious beliefs. While acknowledging that “there may be cases in which the manner the state enforces the mandate of [the law] unnecessarily infringes the free exercise rights of particular parents.” However, “the mere possibility that such cases might arise is not enough to invalidate” the state law. As a result, the court rejected the parents’ challenge to the constitutionality of the New York law. Blackwelder v. Safnauer, 689 F. Supp. 106 (N.D.N.Y. 1988).

Legal Developments

Schools – Part 2

Church Law and Tax 1989-01-01 Recent Developments Schools Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

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State: North Dakota
Categories: Schools

Church Law and Tax 1989-01-01 Recent Developments

Schools

Richard R. Hammar, J.D., LL.M., CPA

• The North Dakota Supreme Court upheld a state law requiring fundamentalist Christian “homeschoolers” to use only certified teachers and to submit to state approval. Two parents, who had been prosecuted for violating these requirements, challenged the validity of the law. Their first argument was that the law violated the First Amendment’s “nonestablishment of religion” clause by requiring religious schools (including homeschools) to seek approval from the state, and to employ only state-certified teachers. The court rejected this argument, noting that complete separation of church and state is impossible, and that certain contacts between church and state are permitted. State approval of religious schools (including homeschools) and a requirement that only state-certified teachers be employed by religious schools were examples of “permissible contact” between church and state. The court quoted with approval from a previous decision of the United States Supreme Court: “Our prior holdings do not call for a total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable …. Fire inspections, building and zoning regulations, and state requirements under compulsory attendance laws are examples of necessary and permissible contacts.” The parents also argued that the state law violated their constitutional guaranty of religious freedom. The court observed that a violation of this guaranty does not occur if the state has a compelling interest which justifies the burden on religious beliefs, and if the state’s interest is accomplished in the “least restrictive” way. The parents conceded that the state had a compelling interest in the education of children, but maintained that the use of state-certified teachers was not the “least restrictive means” of accomplishing the state’s interest. The court disagreed: “While a teaching certificate is no guaranty that the holder is a competent teacher, it does guarantee that the holder has been exposed to the knowledge that a competent teacher should have. We believe that the teacher certification requirement for instructors in public, non-public, or home schools is a reasonably narrow one and is amply justified. Teacher certification appears to us to be among the least personally intrusive methods now available to satisfy the state’s prime interest in seeing that its children are taught by capable persons.” State v. Anderson, 427 N.W.2d 316 (N.D. 1988). See also State v. Melin, 428 N.W.2d 227 (N.D. 1988).

Legal Developments

Freedom of Religion – Part 2

Church Law and Tax 1989-01-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Freedom of Religion, Schools

Church Law and Tax 1989-01-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Can a public high school science teacher be dismissed for repeatedly making references to religion in his classes over the objections of his students and superintendent? Yes, concluded a Pennsylvania state court. The teacher allegedly had made numerous references in his classes to God, Christianity, demons, devils, prophesies from the book of Revelation, and hell. He allegedly required one student (who had been temporarily ousted from class for disciplinary reasons) to pray with him in a hallway as a condition of reentering the room, and informed his classes that “God is truth and truth is God.” The teacher was warned repeatedly that his actions could lead to his dismissal. When asked pointblank if he would stop imposing his religious views on his classes, he answered “no,” and explained that he “was a Christian and that part of his mission was in a sense evangelistic.” The teacher was dismissed, and challenged his dismissal in court. The Pennsylvania Commonwealth Court ruled that the dismissal had been appropriate. It observed that “where a teacher indicates his preference for a particular type of religion and seeks to promote that religion or any religion among his students, the teacher’s constitutional right to freedom of religion and speech must give way to our country’s historic [nonestablishment of religion] clause] set forth in the first amendment.” The court acknowledged that discussions in public schools “about religion, where relevant to classroom course material, are permissible,” but it concluded that the teacher’s conduct “exceeded the constitutional boundaries within which discourse about religion is permissible.” Rhodes v. Laurel High School District, 544 A.2d 562 (Pa. Common. 1988).