Schools – Part 2

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

Church Law and Tax 1989-01-01 Recent Developments


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).

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