Sex Offenders and Church Attendance

Any decision to allow a known sex offender to attend church, even with conditions, should not be made without the assistance of legal counsel.

Richard R. Hammar, Attorney, CPA

Bio

State: North Dakota
Categories: Child Abuse, Sexual Harassment

Church Law & Tax Report

Sex Offenders and Church Attendance

Any decision to allow a known sex offender to attend church, even with conditions, should not be made without the assistance of legal counsel.

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

Key point. Convicted sex offenders often are subject to probation agreements that restrict their attendance at church services. It is important for church leaders to be aware of such restrictions before allowing such persons to attend church or participate in church activities.

* The North Dakota Supreme Court ruled that a convicted child molester violated the terms of his probation by attending a church service and sitting with a minor child. An adult male (the “defendant”) was charged with sexually molesting a four-year-old child. He was sentenced to seven years in a state penitentiary, but the sentence was reduced to seven years of supervised probation in exchange for his confession. The conditions of probation included the following: “You shall not initiate, establish or maintain contact directly or indirectly, with any child under the age of 18, or attempt to do so, except under circumstances approved in advance and in writing by your probation officer. You may not go to or loiter near schoolyards, parks, playgrounds, arcades, or other places primarily used or visited by minors. You may not obtain employment with any agency or place of business that provides services for the care or custody of minors. You may not date or socialize with anybody who has children under the age of 18 years besides your wife, unless pre-authorized by your parole/probation officer.”

The defendant’s probation officer composed a “safety plan” that allowed him to attend church under the following conditions:

Arrival/Pre-Church

I will either ride with my parents or drive myself to church.
During this time I will always be in the presence of at least one adult and will never be in a room alone with a minor.
If I do have to leave the room, I let an adult know where I am going (i.e. bathroom).

During Church

I will sit with my parents.
If I have to leave the sanctuary, I let my parents know where I am going (i.e. bathroom).

After Church

see the “Arrival/Pre-Church”

Other

I will not go into the nursery or classrooms.
If I do have contact with a minor, I will politely excuse myself and either leave the building or find a group of adults.

Three years later a court revoked the defendant’s probation when it was disclosed that he had engaged in contact at church with his previous victim. This contact consisted of the defendant sitting with the victim during a church service. The court re-imposed the seven-year prison sentence. The defendant’s probation officer testified that he had allowed the defendant to attend church, but warned him, “No contact with kids, so you don’t sit by one. If one initiates contact with you, you get up and excuse yourself politely. You leave. I made clear that he’s not to have any contact with kids, so that if he did go to church, he would make sure that he didn’t have contact with other people’s kids.”

On appeal, the defendant argued that the revocation of his probation was an unwarranted and excessive response to the harmless act of sitting with a child during a church service. The state supreme court disagreed, and affirmed the seven-year prison sentence.

Application. This case is instructive for two reasons. First, it demonstrates that child molesters who are not currently in prison may be subject to a supervised probation arrangement that restricts their church attendance. Many church leaders have learned that registered sex offenders are attending their church. Knowing how to respond in such cases can be a difficult question. Many churches do not allow such persons to attend church until they have ascertained whether they are subject to probation, and if so, the conditions imposed by the probation arrangement. In many cases, probation arrangements prohibit a defendant from attending church under any circumstances, while in other cases a defendant is allowed to attend church but under strict conditions such as those described in this case. A church’s exposure to liability is increased if it allows a known sex offender to attend services or other church activities without ascertaining the existence and contents of a probation arrangement.

Second, the conditions identified by the defendant’s probation officer in this case are significant, since they represent a determination by a government agency of the conditions under which a known child molester may attend church. Allowing known sex offenders to attend church will expose a church to a high level of risk. This risk must be properly managed. Some church leaders seek to manage the risk by totally excluding such persons from church property. Others prefer to allow them to attend church, but under specified conditions. The substance of these conditions will vary depending on the circumstances of each case. In drafting the conditions, church leaders may benefit from reviewing probation agreements used by government agencies. The restrictions on church attendance composed by the probation officer in this case are a useful example. Church leaders also should consider speaking with probation officers in their community regarding the kinds of conditions that would be appropriate in allowing a sex offender to attend church. Often, these persons will provide helpful information. Basing your decisions on this kind of information will help to demonstrate the exercise of reasonable care, and reduce the risk of negligence. In some cases, the nature of the prior offenses may make such “conditional attendance” arrangements inappropriate. Once again, your local probation officers can assist you in knowing how to decide whether to completely exclude a person or to allow him or her to attend church under specified conditions. Any decision to allow a known sex offender to attend church, even with conditions, should not be made without the assistance of legal counsel. State v. Wardner, 725 N.W.2d 215 (N.D. 2006).

* See also “Sexual harassment,” Krasner v. Diocese, 431 F.Supp.2d 320 (E.D.N.Y. 2006), in the recent developments section of this newsletter.

Legal Developments

Embezzlement

The Supreme Court of North Dakota ruled that the first amendment did not prevent a priest from being prosecuted for embezzlement of church funds.

Richard R. Hammar, Attorney, CPA

Bio

State: North Dakota

State v. Burckhard, 579 N.W.2d 194 (N.D. 1998)

• Keypoint 4-09. Clergy who divert church funds to their personal use face possible criminal and civil liability.

The Supreme Court of North Dakota ruled that the first amendment did not prevent a priest from being prosecuted for embezzlement of church funds. The priest served as pastor of a local Roman Catholic church. The state charged that he "knowingly took and exercised unauthorized control over money in excess of $100,000" belonging to the church and spent the money on personal items such as the payment of personal credit cards, payments to personal stock brokers, payments for unauthorized personal bills, payments for sporting equipment, payments to relatives, and payments for fishing trips, all with intent to deprive his church of the money. The priest asked the court to dismiss the case on the ground that it would involve "excessive entanglement" in religious affairs in violation of the first amendment's nonestablishment of religion clause. A trial court agreed with the priest, and dismissed the case. It concluded that finding the priest guilty of embezzlement would require a probing investigation into his authority over church funds, which would constitute prohibited "excessive entanglement" between church and state. The state supreme court reversed this ruling, and ruled that the prosecution of the priest for embezzlement would not violate the first amendment. The court conceded that the civil courts cannot resolve church disputes involving matters of doctrine or polity, and quoted from a number of United States Supreme Court rulings, including the following:

[W]e think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them. Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871).

The priest insisted that any attempt by the state to prosecute him for embezzling church funds would require an analysis of his authority over church funds which would "directly interject the court into a resolution of the polity of the Holy Roman Catholic Church" in violation of the first amendment. The court disagreed. It acknowledged that the first amendment's nonestablishment of religion clause "forbids courts from second-guessing the church's rulings on internal matters of policy and doctrine, because the process of second-guessing would require excessive government entanglement in church affairs." However, the civil courts are not deprived of jurisdiction "if the case can be resolved without court interference in church policy and doctrine."

The court pointed to numerous cases in which clergy were prosecuted for various crimes despite their first amendment defense. These cases included the following:

(1) United States v. Rasheed, 663 F.2d 843 (9th Cir.1981). The founder of a church and his associate minister were convicted of fraudulently and deceitfully conducting a church donation program. On appeal, the defendants claimed the first amendment barred their convictions because their program constituted a "religious tenet" and the first amendment prevented the government from proving the falsity of the program. A federal appeals court rejected the ministers' arguments, concluding that "the first amendment does not protect fraudulent activity performed in the name of religion."

(2) United States v. Snowden, 770 F.2d 393 (4th Cir. 1985). A minister of a local church was convicted of mail fraud and tax evasion. The church retained a company to supervise the construction of a church building. The owners of the supervising company paid the pastor about $80,000 in kickbacks, which he deposited into his personal checking account. On appeal from his conviction, the pastor asserted the charges should have been dismissed on first amendment grounds, because they posed an impermissible risk of entangling the government in internal church affairs. A federal appeals court rejected the pastor's argument, and noted that "the defendants seek to use the clause as a sword against the victim, the church … [t]he first amendment rights of these defendants are not involved in this case."

(3) United States v. Lilly, 37 F.3d 1222 (7th Cir.1994). This case involved the prosecution of the pastor of a local church for securities fraud and income tax evasion. The church sold "certificates of deposit" to members through its pastor, who made false and fraudulent representations in making the sales. He then converted about $900,000 of the funds for his personal benefit. A federal appeals court rejected the pastor's first amendment defense: "[W]e stress that [the pastor] does not maintain that the tenets of his religion require him to undertake securities fraud …. Instead, he asserts that '[t]he ability to determine what is an appropriate use of church money is at the heart of the charges brought against' him and that '[a]llowing the court, or a branch of the United States government, to make that determination violated [his constitutionally protected free exercise of religion' …. The district court's determination of the pastor's guilt had absolutely nothing to do with reviewing the church's internal allocation of funds, nor did it implicate any issue of religious polity … [and did not require] any governmental foray into the realm of religious law or any repudiation of an ecclesiastical tribunal's decision. Because [the pastor] was the church's financial decisionmaker, church-member investors and church personnel trusted him to be the sole, unsupervised manager of the church's finances. This position of trust allowed the pastor to control the church's bank accounts and misapply the certificate funds clandestinely …. The district court therefore correctly determined that [the pastor] occupied and abused a position of trust."

The North Dakota Supreme Court noted that the priest in this case used church funds for personal purposes, entirely unrelated to the church's business or mission. It concluded that his prosecution for embezzlement does not require the court "to interpret or review church doctrine, policy, or laws. As in any theft case involving allegations the defendant misused funds entrusted to him, the state will need to produce evidence, through testimony of church officials or other appropriate means, of the authority entrusted to the defendant and conduct outside that authority. It is for the [jury] to decide whether the priest made unauthorized expenditures of church funds. The mere fact a church official's wrongful conduct may violate church policy or canon law in no way precludes the same conduct from also violating and being prosecuted under secular criminal laws." The court noted that "[t]his is not a case involving complicated questions of ecclesiastical policy or church doctrine. The question, simply put, is whether the church authorized [the priest] to expend church funds on himself and others in the manner the complaint alleges he spent those funds.

The court also rejected the priest's claim that he could not be guilty of embezzlement since he had "legal authority" over the church funds and therefore could not have spent them without authority. The court expressed doubt that the priest "had absolute or unlimited authority to expend church funds." In any event, it was up to a jury to make this determination.

What this means for churches

This case illustrates the important principle that the civil courts can resolve disputes involving churches and clergy so long as they can do so without delving into religious doctrine, discipline, or polity. Criminal prosecutions of clergy for embezzlement or other criminal behavior rarely will implicate such matters, and as a result are not necessarily beyond the reach of the civil courts. Diversion of Church Funds

Legal Developments

Recent Developments in North Dakota Regarding Employment Practices

The North Dakota Supreme Court ruled that an employer may have violated a minister’s legal rights by dismissing him for engaging in private sexual behavior in a public restroom.

Richard R. Hammar, Attorney, CPA

Bio

State: North Dakota

Church Law and Tax1998-09-01

Employment Practices

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

• Key point. Some states have enacted laws prohibiting employers from dismissing employees for engaging in lawful behavior during nonworking hours. These laws often do not apply to churches, but they may apply to other religious organizations and they do not necessarily exempt clergy who work for secular organizations.

• The North Dakota Supreme Court ruled that an employer may have violated a minister’s legal rights by dismissing him for engaging in private sexual behavior in a public restroom. An employee of a Sears department store visited a public restroom in the store. While seated in an enclosed stall, the employee inadvertently glanced through a small hole in the wall and noticed a man engaged in private sexual behavior (masturbation) in the adjoining stall. The employee left the restroom and called the police. The police informed the employee that state law prohibited such conduct in a “public place.” Police officers drove to the store, entered the restroom, and arrested the man. It turned out that he was an ordained minister who served as chaplain at a local retirement home. The retirement home placed the chaplain on a leave of absence and expressed concern about the effect the incident would have on his pastoral relationship with its residents. Concern also was expressed about the chaplain’s work performance and his commitment to his duties as chaplain. A few weeks later, following further evaluation, the chaplain was dismissed. He later sued the retirement home for (1) wrongful dismissal, (2) a violation of the state Human Rights Act, and (3) a violation of a state law barring employers from discriminating against employees for engaging in lawful behavior during nonworking hours. A trial court dismissed all of the charges, and the chaplain appealed.

Wrongful dismissal

The state supreme court agreed with the dismissal of the wrongful dismissal claim. It noted that “employment without a definite term is presumed to be at—will, and an employer may terminate an at—will employee with or without cause.” It acknowledged that the at—will rule can be modified by contract. However, it pointed out that the retirement home’s employee handbook explicitly stated it was not to be construed as an employment contract. Further, the court rejected the chaplain’s claim that the “letter of call” he received from his denomination created a contractual obligation between him and the retirement home that “rebutted” the presumption of his at—will employment status. The court disagreed:

The “letter of call” informed [the chaplain] about his employment at [the retirement home] and said “[t]he [denomination] reserves the right to terminate your employment with reasonable notice should a change in program or other justifiable reasons require it.” We reject [the chaplain’s] argument the “letter of call” created a contractual relationship between him and [the retirement home]. The “letter of call” refers to [his] status as member of the ministry of [his denomination] and not to his employment status at [the retirement home]. The “letter of call” was not issued, or signed, by [the retirement home], and it refers to [the retirement home] as the third party who had hired [the chaplain]. We agree with the trial court’s conclusion the “letter of call” was simply a calling to be a chaplain and did not rebut the presumption of [his] at—will employment. We hold the trial court did not err in dismissing [his] breach of contract claim ….

State human rights law

A state human rights law barred employers from dismissing employees on the basis of “sex.” The court concluded that this provision was not violated by the retirement home when it dismissed the chaplain, since “sex discrimination” requires a showing of membership in a protected class and adverse treatment by an employer because of the protected status.” The chaplain did not meet these requirements.

Lawful activities during nonworking hours

A state law prohibits an employer from discharging an employee “for participation in lawful activity off the employer’s premises during nonworking hours which is not in direct conflict with the essential business—related interests of the employer.” Further, employers can dismiss employees who engage in lawful behavior during nonworking hours if “contrary to a bona fide occupational qualification that reasonably and rationally relates to employment activities and the responsibilities of a particular employee ….” This law was enacted to prevent employers from “inquiring into an employee’s non—work conduct, including an employee’s weight and smoking, marital, or sexual habits.”

The chaplain acknowledged that state law prohibits masturbation in a public place, but he insisted that a private stall in a public restroom is not a “public place” and therefore his behavior was legal. And, since it was legal, he could not be dismissed for engaging in such behavior. The trial court had rejected this argument, but the supreme court was not prepared to do so. It observed that the courts “generally have said activities conducted in an enclosed stall in a public restroom do not occur in a public place.” On the other hand, it acknowledged that state law allows employers to dismiss an employee for engaging in lawful behavior during nonworking hours if (1) the behavior is in direct conflict with the essential business—related interests of the employer, or (2) is contrary to a bona fide occupational qualification that reasonably and rationally relates to employment activities and the responsibilities of a particular employee. The court conceded that the retirement home might be able to establish either or both of these exceptions. In summary, the chaplain raised a legitimate claim that should not have been dismissed by the trial court. The case was sent back to the trial court on this one issue.

Application. This case illustrates a very important point-many states have enacted laws preventing employers from dismissing employees on account of lawful behavior during nonworking hours. These laws vary from state to state. Church leaders should review their own state law and be able to answer the following questions: (1) Does our state have such a law? (2) Does it apply to churches? In many states, such laws exempt churches. Note, however, that this did not help the retirement home in this case, since it was not a church. In other words, the fact that the chaplain was an ordained minister did not exempt the retirement home from the provisions of the law. (3) If our church is covered, which employees are protected? All employees? Only lay employees? What about clergy? (4) If our church is covered, what activities are prohibited? This is critical. You need to know how your church can violate the law. (5) What exceptions exist? The North Dakota statute had two exceptions. Your state law probably contains exceptions too. Church leaders need to be familiar with them. Hougum v. Valley Memorial Homes, 574 N.W.2d 812 (N.D. 1998).

[Termination, Termination of Employees]

© Copyright 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: m43 c0598

Legal Developments

Churches’ Liability After Out-of Court Settlements

If a pastor is released from liability for sexual misconduct, his denomination cannot be liable.

Richard R. Hammar, Attorney, CPA

Bio

State: North Dakota
Categories: Counseling, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1997-11-01

Sexual Misconduct-by Clergy and Church Workers

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

• Key point. A church or denominational agency cannot be liable for a pastor’s sexual misconduct if the victim enters into a settlement releasing the pastor from liability.

• Key point. A denomination’s bylaws do not impose a fiduciary duty upon the denomination to protect church members from sexual misconduct.

! The North Dakota Supreme Court ruled that a denominational agency could not be liable for a pastor’s sexual misconduct since the victim had entered into an agreement releasing the pastor from liability. A police officer was killed in the line of duty. His widow sought out her pastor for counseling. Within a few months, the pastor initiated a sexual relationship with the widow. The affair lasted for nearly a year, at which time the pastor was assigned to a position in another state. The couple continued their relationship for seven years, meeting four or five times each year at “workshops” around the country. Eventually, the widow informed a denominational official about the pastor’s relationship with her. The pastor was promptly removed from his position within the church. The widow later sued the pastor, claiming that he breached a “fiduciary duty” he owed to her as a result of the counseling relationship and her vulnerable position following the tragic death of her husband. The widow eventually reached an out—of—court settlement with the pastor which included a release of liability. The widow also sued the denominational agency, claiming that it was legally responsible for the pastor’s acts. She alleged that the agency, and at least one official, had been informed about the sexual relationship on two different occasions and failed to take appropriate action. For example, she alleged that on one occasion a denominational official was informed by a church member of the relationship, and responded by warning the member that “you could get yourself in a whole lot of trouble spreading rumors like that.” The widow claimed that the agency and its official owed her a fiduciary duty after they learned of the affair, and that they breached this duty by failing to intervene or respond appropriately. A trial court dismissed the lawsuit against the agency, and the widow appealed.

effect of a settlement releasing the pastor from liability

The court noted that the widow had entered into an out—of—court settlement with the pastor that released him from any liability. By releasing the pastor from liability, the widow could not sue the denomination on the basis of respondeat superior (a legal theory imposing liability on an employer for the wrongs of employees committed within the scope of their employment). However, the widow could still sue the denomination for its own wrongdoing. She chose to sue the denomination on the basis of a breach of a fiduciary duty.

fiduciary duty-review of other cases

The court acknowledged that “in some cases involving counseling and sexual relations between clergy and parishioners, some courts have allowed claims against the offending clergy or the church hierarchy for breach of a fiduciary duty.” The court referred to the following four cases (three of which occurred in Colorado), each of which is fully addressed in prior issues of this newsletter: (1) Colorado: Destefano v. Grabian, 763 P2d 275 (Colo. 1988) ; (2) Colorado: Erickson v. Christenson, 781 P.2d 383 (Colo. 1989) ; (3) Colorado: Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993) ; (4) Texas: Sanders v. Casa View Baptist Church, 898 F. Supp. 1169 (N.D. Tex. 1995).

On the other hand, the court noted that other courts have refused to find a fiduciary duty under the same circumstances: (1) Nebraska: Schieffer v. Catholic Archdiocese of Omaha, 508 N.W.2d 907 (Okla. 1993); (2) New York: Schmidt v. Bishop, 779 F. Supp. 321 (S.D.N.Y. 1991); (3) Ohio: Strock v. Pressnell, 527 N.E.2d 1235 (Ohio 1988); (4) Oklahoma : Bladen v. First Presbyterian Church, 857 P.2d 789 (Okla. 1993).

fiduciary duty-this case

The court concluded that the widow had failed to prove that the denominational agency owed her a fiduciary duty. It observed that a fiduciary duty is based on the existence of a fiduciary relationship, and it concluded that such a relationship exists “when one is under a duty to act or give advice for the benefit of another upon matters within the scope of the relationship.” It further noted that a fiduciary relationship “generally arises when there is an unequal relationship between the parties.” Did the widow have a fiduciary relationship with her denominational agency on the basis of its alleged knowledge of the affair? No, concluded the court. It observed: “Although there was evidence [the agency and one of its officials] were informed about the intimacy between the [pastor and widow], we are not persuaded that knowledge, by itself and without some other action to assume control of the matter, raises an inference that the [agency] assumed a fiduciary duty to [the widow].” The court also stressed that there was no evidence that the widow “relied” on the agency in any way.

relevance of the Book of Discipline

The widow insisted that the denomination’s official “Book of Discipline” imposed a fiduciary duty on the denomination and its officials to investigate and confront clergy for sexual misconduct. The court disagreed. It quoted from an affidavit signed by a denominational official that explained the Book of Discipline. The affidavit asserted, in part:

The Book of Discipline … contains the constitution, doctrine and general rules of our church. It defines the duties and responsibilities of [denominational agencies and officials] and local ministers. [Denominational officials] have no responsibility for the direct pastoral care of parishioners in individual congregations. Such functions are the responsibility of the local church minister.

Application. This case is important for the following reasons: (1) It illustrates that churches cannot be liable on the basis of respondeat superior for an employee’s wrongdoing if the employee is not found liable or is released from liability as part of an out—of—court settlement. (2) The court gave a useful review of cases that have addressed the question of whether a church can be liable on the basis of a breach of fiduciary duty for a pastor’s sexual misconduct. (3) The court concluded that knowledge of wrongdoing alone may not impose a fiduciary duty upon denominational officials-unless there is evidence of some active assumption of control over the matter. (4) The court rejected the widow’s argument that a denomination’s Book of Discipline imposed a fiduciary duty upon denominational officials to investigate and remove ministers who engage in sexual misconduct. The court concluded that the Book of Discipline did not create any fiduciary duties since it did not give denominational officials any authority to assume direct pastoral care of church members in individual congregations. As a result, denominational officials did not create a fiduciary relationship with the widow. L.C. v. R.P. 563 N.W.2d 799 (N.D. 1997). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]

© Copyright 1997, 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: m67 m40 m62 c0697

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).

© 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: m47 c0589

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

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

Bio

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).