Combs v. Homer-Center School District

Nelson; Douglas Mr. Mrs. Shari COMBS; Mr. Mrs. Kathleen Nelson, Appellants Darrell No. at Combs, Appellants No. 06- 06-3094, v.

v. District; Titusville Area School John D. Reagle, capacity in official his as Act HOMER-CENTER SCHOOL DIS ing Superintendent of Titusville Area Joseph Marcoline, TRICT; in F. his (D.C. School District Civil Action 05- capacity Superintendent official as cv-0070). District; School Homer-Center Titus District; ville Area School Bristol Weber; Meg Weber, Rev. Steven Mrs. District; Township School Franklin Appellants 06-3095, at No. (D.C. Regional School District Civil v. 04-cv-1599). Action No. District; DuBois Area School Sharon Prevish; Prevish, Dr. Thomas Timari Kirk, capacity Super her official as 06-3091, Appellants at No. intendent of DuBois Area Dis School (D.C. 05-cv-0203). trict Civil Action v. 06-3090, 06-3091, 06-3092, Nos. District, Norwin School 06-3093, 06-3094, 06-3095. Watson, capacity Richard his official United States Court of Appeals, Superintendent as of Norwin School Third Circuit. (D.C.

District Civil Action No. 04-cv- Argued Nov. 2007. 1670). Aug.

Filed Newborn; Maryalice Dr. Mark Mrs.

Newborn, Appellants No. 06-

v. Stephen Regional District; Franklin School k, capacity in his official as Va Superintendent Regional of Franklin (D.C.

School District Civil Action 04- cv-1932). Hankin;

Mr. Mrs. Babette Thomas Hankin, Appellants at No. 06- Township District; Regi Bristol School Cesario, capacity na her official Superintendent Township of Bristol (D.C. Action

School District Civil 04- cv-1936). Farris, Esquire (Argued),

Michael P. Mason, III, Esquire, James R. Home Association, Purcell- Legal School Defense ville, VA, Attorneys Appellants. for Beard, Jr., P. Esquire, Carl Patrick J. Fanelli, Esquire, Andrews & Beard Altoo- na, PA, Attorneys Appellee, for Homer- Center School District. Lane, Esquire,

Christina Andrews & Price, PA, Attorney for Pittsburgh, Appel- lees, District, Titus- Homer-Center School District, ville Area Bristol Town- School District, Franklin ship Regional School Vak, District, in his Stephen School official capacity Superintendent of Franklin as District, Regional Norwin School School District, DuBois Area School District. Smith, Esquire, Patricia K. Knox Erie, PA, McLaughlin Gornall & Sennett Attorney Appellees, for Titusville Area District, Reagle, D. in his School John Acting Superintendent capacity official

District. of Titusville Area School Lalley, Esquire (Argued),

Paul N. Levin OPINION OF THE COURT Huntingdon PA, Legal Group, Valley, P.C. PER CURIAM. Attorney Township Bristol Appellees, At parents issue is whether certain who Cesario, District, Regina in her offi- School home-school their children must comply cial of Bristol capacity Superintendent as with reporting and review require- Township School District. Pennsylvania’s compulsory ments of edu- Compliance, parents cation law. con- Esquire, L. Brungo, Michael Ronald R. tend, would Lucas, Jr., sincerely violate their held Maiello, Esquire, Alfred C. Es- Maiello, LLP, beliefs. The Commonwealth of quire, & Brungo Maiello demurs, Pennsylvania contending PA, its com- Attorneys for Pittsburgh, Appellees, pulsory District, substantially education law neither Watson, Norwin School Richard burdens the free exercise of nor capacity Superintendent in his official as transgresses neutral District, application to all citi- Norwin School DuBois Area zens, and District, Kirk, important serves an in School Sharon her official inter- est in ensuring a minimal level of edu- capacity Superintendent of DuBois Area cation for all children. School District. appeal grant Plaintiffs from the of sum- Lund, Christopher Esquire, C. Dechert mary judgment for defendants an action PA, Attorney

LLP Ami- Philadelphia, for seeking declaratory injunc- relief and an Curiae-Appellant, cus American Civil Lib- tion prohibiting enforcement of 24 Pa. Pennsylvania. erties Union of (“Act 169”) Stat. Ann. 13-1327.1 and Esquire, Ann Ledger, G. St. Office of prosecution Pennsylvania’s under compul- Attorney Pennsylvania Depart- sory General of education laws. Defendants Education, PA, Harrisburg, ment of Attor- Pennsylvania school districts and super- ney Curiae-Appellee, for Pennsyl- Amicus intendents named in official capacity.1 Department vania of Education. Plaintiffs are six families who home-school their children.2 Fields, Esquire, Sean A. Pennsylvania The of Pennsylvania’s Commonwealth Mechanicsburg, School Boards Association education system, as enacted the Gen- PA, Amicus Attorney for Curiae-Appellee, Assembly, parents eral allows to satisfy Pennsylvania Boards School Association. the compulsory requirement attendance Pasek, Jeffrey Esquire, I. Cozen & through programs.” “home education O’Connor, PA, Philadelphia, Attorney for Parents supervising the home education Amicus Curiae-Appellee, Jewish Social programs provide must instruction for a Policy Action Network. days minimum number of and hours in subjects

certain portfolio and submit a SCIRICA, Judge, teaching logs Before: Chief and the children’s work JORDAN, AMBRO and Judges. product Circuit for The local review. school dis- District, 1. We refer to School Homer-Center "Parents” are Darrell and Kathleen Marcoline, District, Combs, Joseph Prevish, F. Norwin School Thomas and Timari Mark Watson, Regional Richard Franklin School Newborn, Maryalice Thomas Babette District, Vak, Stephen Township Bristol Hankin, Nelson, Douglas and Shari Ste- District, Cesario, Regina School Titusville Meg ven and Weber. District, Reagle, Area School John D. DuBois Area School District and Sharon Kirk collec- tively as the "school districts.” programs over their education programs home view” home trict reviews religion. their free of violate exercise minimum hours compliance with the requirements and course instruction Pennsyl- the Commonwealth of demon- whether each student determines passed Religious Freedom Pro- vania program. progress the overall strates Act. The requires tection statute Com- district not review The school does to justify monwealth substantial burdens curriculum, content, textbooks, educational compelling free with a on exercise materials, methodology of instructional and a that the least re- showing interest program. employed strictive means has sat- been passage isfy that interest. Prior to the Parents, their children who home-school Act, Religious Freedom Protection religious sincerely on their held be- based many complied of the with Act Parents liefs, their school dis- respective have sued require- program 169 home education Par- superintendents. and school tricts Pre-RFPA, no ments.3 there is evidence record-keeping Act contend the ents questioned that the school districts ever subsequent portfolio and the requirements with interfered Parents’ home education place a substantial on their review burden content, programs’ educational methodolo- an religion. They seek free exercise curriculum, or gy, materials. On some from the exemption requirements Act 169 occasions, required the school districts injunctive re- request declaratory and and logs port- and supplement Parents to their grounds provisions of lief on the that the folios with additional information. But Act 169 violate First and Fourteenth identify an unable to instance of the of the Amendments Constitution rejected any in which the school districts Pennsylvania and Reli- United States program. of their home part (“RFPA”), gious Freedom Act Protection Nevertheless, post-RFPA, Parents noti- §§ Ann. 71 Pa. Stat. 2401-2407. the school Act 169 fied districts that sub- stantially burdens their free exercise of I. religion sought exemption and an from The compliance.4 school districts refused chil- Parents have home-schooled their grant exemption Parents an from Act many years. dren for All six families are or, cases, and initi- threatened some Christians, but of denominations. different truancy. prosecutions ated criminal for They religious hold in common a belief children, that “education of their not mere- response, Parents sued school education, ly religion” and in various districts state and federal courts assigned has matters to God seeking injunctive declaratory and relief jurisdiction family. the exclusive under the First Fourteenth and Amend- Accordingly, given because Par- Constitution, God has ments to the United States responsibility educating § the sole Ultimately, ents for RFPA. U.S.C. and children, report- ended up school districts’ the cases before the United ing requirements “discretionary re- District Court for the Dis- and States Western person's never free 3. Thomas and Babette Hankin have stantial burden on the exercise complied with Act 169. religion” days within 30 of the written notice). Darrell and Combs refused Kathleen 2405(b) (requiring, 4. See 71 Pa. Stat. Ann. portfol- to submit the affidavits court, bringing party prior an action in ios, thereby comply ceasing with Act 169. notice); agency provide the with written 2405(d) (the agency "may remedy the sub- Pennsylvania, prove which consolidated failed to burden” trict of “substantial on summary for pre-trial the six cases of religion, free exercise as defined by Upon judgment consent purposes. Dist., RFPA, Combs Homer Sch. Ctr. discovery to “thresh- parties, was limited (W.D.Pa.2006), F.Supp.2d such Act 169 legal old issues” as whether (2) Act general 169 is neutral law of free exer- substantially burdened Parents’ applicability, satisfying rational basis re- under the RFPA and the cise of view,5 id. at 777. As a result, the District of review Parents’ fed- proper standard for Court did decide compelling issues of The District eral constitutional claims. governmental interest or least restrictive summary engaged Court two rounds means.6 judgment motions. The facial chal first round addressed II. lenges to Act 169. Parents filed a consoli summary judgment dated motion for A. op the school filed a consolidated districts Pennsylvania Constitution mandates position, but did not file a cross-motion for “provide Assembly General summary The District judgment. Court the maintenance and a support thorough of v. denied Parents’ motion. Combs Homer system and efficient of public education to Dist., (W.D.Pa. Ctr. Sch. 2005 WL 3338885 serve of the needs the Commonwealth.” 2005). Dec.8, round, In the second the Const., Ill, § Pa. Art. 14. The General summary school filed a motion for districts Assembly has carried out its constitutional judgment addressing both Parents’ facial by charge enacting the Public School challenges and “as to Act 169. applied” Code. See 24 Pa. Stat. Ann. §§ 1-101 granted the school The District Court dis (1) motion, concluding tricts’ 27-2702.7 dictum, rejected

5. The Court also 6. a the District Parents’ In District Court stated: upon apply 'hybrid “Even Court claims based the if this were to a Establishment Clause test, Amendment, rights’ heightened scrutiny or strict how- Due First the Process ever, challenge free Plaintiff's exercise to Act Clause of the Fourteenth and the Amendment 169 on would Id. its face still fail.” at 777. Speech Free Clause of the First Amendment. Id. at 778. The Statement Issues in Par- of Court, 7. by As noted "[a]n the District educat- only ents’ brief addresses claims under RFPA citizenry recognized ed been as has critical to and the Free Exercise Clause. well-being the success and of the Nation and jurisdiction The District Court had under 28 people its from time of its creation.” 1331, 1343(a)(3), §§ U.S.C. 1441. Combs, F.Supp.2d Pennsylva- at 740-41. jurisdiction appeal We have over the under 28 public nia's commitment to is education firm- § U.S.C. "We review 1291. a district court’s ly history. rooted in its See id. at 741-43. grant summary judgment Lighthouse of novo." de passed the "Great Law” the First Evangelism, City Long In st. Inc. for of Assembly Pennsylvania of General “included Branch, (3d Cir.2007) (cit 510 F.3d provision a for creation of schools across ing Corp., Gottshall v. Consol. Rail 56 F.3d Furthermore, Pennsylvania.” Id. at 742. (3d Cir.1995)). Summary judgment Pennsylvania various constitutions have in- only appropriate genuine if there no provisions public cluded education. Id. issues of fact and the material school districts (citing provisional Pennsylvania the 1776 judgment are entitled to as a matter of law. Constitution, Pennsylvania Constitution of 56(c). reviewing II, Fed.R.Civ.P. "In the District § Pennsylvania and Art. 14 of the summary grant judgment, Court's we form). of view Constitution its The current current light Pennsylvania facts in a most favorable to the purpose Code describes the nonmoving party[:]” Lighthouse public "preparfing] Parents. education students for Inst., "self-directed, creating 260. adult life” and life- high “every regularly accredited senior school” requires School Code

The Public a age having attendance compulsory compulsory school re- child of satisfies in this legal compulsory residence Commonwealth longer and is no quirement sub- day school in to attend a which § Ann. age. Pa. Stat. 13-1326. school by the stan- jects prescribed activities Pennsylvania Assembly General Education are of the State Board of dards to choose currently permits parents among 24 Pa. English language.” taught in the education categories alternative four 13-1327(a). “Compulsory § Ann. Stat. require- satisfy compulsory attendance period “the age” is defined as school (1) a public ment: school with certain par- from the the child’s child’s life time (2) 13-1327(a);8 id. § options, trade school school, have the enter elect to child ents private day academic school or private age at the be not later than which shall id.;9 (3) operated tutoring, day school (8) years, age until of seventeen eight a “bona fide church or other (17) See also § years.” 13-1326. 13-1327(b);10 body,” id. (2008). § “home § A who 11.13 student Pa.Code id. program,” § from a 13-1327.1. graduation a certificate “holds responsible, Pennsylvania long involved citi- Code enumer- learners and Administrative (2008). 4.11(b) § 22 Pa.Code. ates minimum hours of instruction and the zens.” subjects elementary at both may satisfy compulsory attend- A child secondary school 22 Pa.Code levels. 11.31 by attending day requirement public ance (2008). 1327(a). "In 24 Pa. Stat. Ann. school. 13— school child lieu of such attendance” may day "operat- A child school enroll in years age approval who receives fifteen by a bona other ed fide church or superintendent Secretary the the district and 13-1327(b). body.” § 24 Pa. Stat. Ann. The Education, any years age or of of child sixteen school must meet minimum standards approval superin- district who receives of the subjects teach the hours of instruction and tendent, may enroll a trade or business in ("[A] in the enumerated statute. See id. min- day public Id. Attendance at either school. (180) days eighty one imum of hundred of or a trade or school satisfies school business (900) or instruction nine hundred hours of "every parent, guardian, the mandate or per year elementary instruction at the level or person having charge any or other control ninety per year nine hundred hours age compulsory children of child or school ....”); secondary at the instruction level id. required such to a to send child or children 1327(b)(1)(requiring elementary § at the 13— day subjects activities school in which the and level, following "English, the courses: school by prescribed the the State standards of reading spelling, writing; to include and taught English Board of Education are in the arithmetic; science; geography; history of language.” Id. civics; Pennsylvania; States the United and education, safety including regular and con- may satisfy compulsory 9. A child the attend- dangers pre- and tinuous instruction in the requirement by attending ance "an accredited fires; physiology; phys- vention health and school,” private 22 Pa.Code or licensed education; music; art”); § and id. ical 13- (2008), subjects § 11.32 "in the and which (“At level, 1327(b)(2) secondary school the the by prescribed of the activities the standards following English, courses offered: be] [must taught Board of are in the State Education literature, speech language, include and § English language.” 24 Pa. Stat. Ann. 13- science, biology 1327(a). composition; to include and any principal "The or certificate of studies, school, chemistry; geography; social to in- private institu- teacher of or of civics, economics, history, history clude world "set[ ] tion ...” must that the work of forth Pennsylvania; United compliance of the States and a for- provi- is in with the said school mathematics, Also, eign language; gen- include regular daily this act.” sions of Id. statistics, algebra English language prop- in the eral mathematics and and instruction art; music; education; erly qualified private geometry; physical tutor satisfies the com- education, safety pulsory requirement. physiology; attendance Id. The and and health Pennsylva- instruction; appeal, provision this the sible for the Significant to the Assembly fourth permitted the age nia General and name of each child who shall See Act alternative in 1988. ...; the and participate address tele- 21, 1988, P.L. December No. site; phone number of the ... that such § 13-1327.1. Under Act Pa. Stat. Ann. subjects required as are by law offered under a a child instructed “home education English in language, including the an compulsory attend- program” satisfies objectives of proposed outline education Id. A home requirement. ance education ...; by subject area that the home satisfy the minimum program must same program comply education shall with the and al- requirements hours of instruction provisions this section.... subject re- most all of the same matter 1327.1(b)(1).12 Id. § 13— quirements operated by a school bona Id. §§ religious body.11 13- fide church or superintendent public of the school 13-1327.1(c). 1327(b), district is charged child’s residence ensuring with receiving each child is a home Prior to the commencement of education,” “appropriate which is education on Au- defined program, thereafter 169 as “a gust year, parent program 1 of each Act guardian consisting of file an subjects of the child must affidavit with the in required instruction for the district superintendent setting forth: in time this act which student supervisor progress

the name of the of the home demonstrates sustained respon- program program.” § who shall be overall 13- 13-1327.1(d). But, including regular and continuous instruction Ann. in contrast 13-1327(b), fires.”). prevention Act dangers in the 169 leaves decision secondary whether certain teach level sub- Further, principal must file a notarized jects economics, biology, chemistry, foreign — Department affidavit with of Education languages, trigonometry, age-appro- or other setting required subjects forth that priate courses as contained in Pa.Code Ch. English language, offered in the whether supervisor 4—to the discretion of the nonprofit organization, school is a and that program. home education Pa. Stat. Ann. compliance the school is with otherwise 13-1327.1(c)(2). § provisions the the of Public School Code. Id. 13-1327(b). § addition, provide the affidavit must evi- Although requires statute the the dence that child has been immunized and subjects, certain is the schools to teach "[i]t has received the health and medical services policy preserve of the the Commonwealth age for students of child’s the or parent primary right obligation and of the grade § 24 Pa. Ann. level. Stat. 13— parents or to choose and ... the education Further, 1327.1(b)(1). affidavit shall “[t]he Thus, training "[njothing for such child.” Id. signed by a certification to contain be empower act contained in this shall the Com- supervisor supervisor, that the all adults liv- monwealth, officers, any agencies of its or ing persons having legal in the home and content, approve subdivisions course custody of a child or children in a home faculty, disciplinary requirements staff of or program education have been not convicted any religious referred to section school in this of the criminal offenses in enumerated sub- (e) without the consent of said Id. school.” years section of section five 111 within immediately preceding of the the date affida- following 11. Act 169 enumerates the “mini- "Supervisor” by vit.” Id. is Act defined grades through mum courses in nine twelve” parent guardian person as "the or or such graduation requirement from home having legal custody or of the child children years English; program: education four provision of responsible be who shall instruction, for the mathematics; years years three provided person three that such has a science; studies; years high diploma equivalent.” three of social two school or its Id. 13-1327.1(a). years § Stat. arts and humanities. Pa. program shall select 1327.1(a). to the home education to demonstrate In order supervisor edu- if the “appropriate test to be administered superintendent at the end of each taking place, tests. At cation” does not choose the Statewide of the year supervisor school public supervisor, of the the discretion must submit program education home of na- may include the results portfolio of documentation.13 types two file with tionally achieve- normed standardized portfolio of First, contain a the file must subject other areas or ment tests for and materials: records en- supervisor The shall grade levels. log, of a made shall consist portfolio The nationally normed stan- sure that instruction, with contemporaneously tests dardized tests or Statewide by reading title the designates which by the child’s shall not be administered used, any writings, samples of materials parent guardian. ma-

worksheets, or creative workbooks 13-1327.1(e)(l). Id. § by the student developed used or terials Second, edu- supervisor of the home three, eight and re- grades five and must obtain an annual program cation nationally normed standardized sults of Id. evaluation of the child’s work. written reading/language achievement tests 13-1327.1(e)(2). may § supervisor and mathematics or results arts Act any person qualified choose under in these tests administered Statewide make the evaluation.14 The evaluation department shall es- grade levels. The measures: list, minimum five with a tablish tests, progress.... the student’s educational nationally normed standardized be based on an supervisor which the of the The evaluation shall also tests from science; addition, geography; history superintendent has a of the United "In if the that, during Pennsylvania; time and reasonable belief States civics. 13-1327.1(e)(1)(f). year, appropriate may school occurring program, in the home education A teacher or administrator who evaluates may require to be he documentation ... (grades portfolio secondary sev- at the level to the district....” 24 Pa. Stat. twelve) submitted through have at least two en shall 13-1327.1(h). §Ann. years experience grading any following subjects: English, to include lan- permits by "a literature, 14. Act 169 evaluation licensed guage, speech, reading and com- psychologist or a teacher science, clinical or school biology, position; to include a non- certified the Commonwealth or chemistry geography; physics; social public school or administrator.” teacher studies, economics, civics, to include world 13-1327.1(e)(2). "Any such Pa. Stat. Ann. history, history of the United States nonpublic or administrator shall have teacher foreign language; Pennsylvania; years teaching experience at in a least two mathematics, general to include mathemat- Pennsylvania public nonpublic or school with- ics, algebra, trigonometry, ge- calculus and Further, years.” any in the last ten Id. non- ometry. public teacher or administrator or certified 13-1327.1(e)(1)(h). 'grad- § "[T]he Id. term required "experience teacher must have the classwork, ing' shall mean evaluation of elementary elementary at the level to evaluate homework, quizzes, classwork-based tests and secondary students or at the level to evaluate subject prepared related to classwork tests secondary students.” Id. (e)( )(iii). § matter.” Id. 13—1327.1 1 request supervisor, persons the of the "At A teacher or administrator who evaluates a qualifications may the with other conduct portfolio elementary (grades at the level prior the consent of the dis- six) evaluation with kindergarten through at shall have least superintendent. event of residence no trict years experience grading in two supervisor or their shall the evaluator be the following subjects: English, to include the arithmetic; 13-1327.1(e)(2). writing; spouse.” § spelling, reading and Id. If superintendent and a review of the interview of the child the concludes that a in clause portfolio required and shall timely amended file fails to still demon- not an certify appropriate whether or education, appropriate strate he or she will occurring. education is notify supervisor the his or her determi- Further, supervisor nation. Id. will be given “proper by duly qualified hearing upon portfolio Based the entire file—the impartial examiner” hearing within of records and and the third- materials 13-1327.1(k).16 thirty days. § Id. “If the party superintendent evaluation—the de- home pro- hearing termines whether the education examiner that the finds documen- gram provides child with an “appropri- tation that appropriate does not indicate ate education.”15 taking place education is the home edu- determines,

If ... superintendent program,” cation the student must be provided based on the documentation promptly school, a public enrolled in either ... appropriate education is not school, nonpublic or a licensed child in taking place for the the home private § academic Id. school.17 13- program, superintendent 1327.1(Z). “The of the [hearing] decision supervisor shall send a letter to the may examiner appealed either the program stating of the home education supervisor of program the home education appropriate that in opinion his education or the superintendent Secretary to the taking is not for the child in place the Education or Commonwealth Court [of program home education and shall re- 13-1327.1(k). Pennsylvania].” §Id. documentation, turn all specifying what In practice, the engage school districts aspect aspects or the documentation in a oversight. limited level of The school inadequate. require districts a minimum of two con- 13-1327.1(i). Upon § Id. receipt of the tacts during with the State the calendar letter, supervisor twenty days has “to year of an affidavit at submission —the submit additional documentation demon- beginning year of the and the submission strating that appropriate education is tak- portfolio of the and evaluation the end ing place for the child the home edu- year. Deposition testimony reveals program.” 13-1327.1(j). cation If Id. that school officials do not check in on the timely additional documentation is not progress programs of home education dur- submitted, program the home education ing Furthermore, year. the school all “shall be out compliance” with the com- deposed acknowledged school officials pulsory requirements attendance and the they rejected disagreed never or an student with promptly must enroll either a school, school, independent public evaluator’s assessment of the nonpublic private licensed Id. home education program. school. School officials superintendent may rely upon program.” 15. home education 13- 1327.1(a). proposed objectives outline of educational provided beginning year when making "appropriate his decision, education” determi- rendering hearing 17. In lieu of a 13-1327.1(b)(1). § nation. 24 Pa. Stat. Ann. may “require examiner the establishment of a plan mutually agreed remedial education to by "hearing superintendent supervisor 16. examiner” “shall not be an of the officer, agent employe Depart- program or home which shall contin- [sic] program.” of the ue the ment of Education or school district or home education Pa. 13-1327.l(k). § intermediate of the child in Stat. Ann. unit of residence religion, including any burden which compliance of the disclosures for reviewed general applicabili- results from a rule of and, if all the with the statute 2404(a), agency § unless “the ty,” id. the home edu- presented, were disclosures by preponderance a of the evi- proves, program approved. would be cation dence, further- “[i]n the burden” agen- of the compelling ance of a interest B. cy” and is least restrictive means “[t]he noted, Pennsylvania Gen- As interest,” id. furthering compelling Religious Free- Assembly eral enacted 2404(b). § Act. 71 Pa. Stat. Ann. dom Protection Assembly defini- provides The General protecting §§ 2401-2407. Titled Act “[a]n key in section 2404. tions for several terms religion; prescrib- the free exercise of First, religion” “free exercise of means govern- under which ing the conditions practice religion or observance of “[t]he substantially may person’s ment burden I section 3 of Article of the Consti- under § Id. religion,” free exercise of Pennsylvania.”18 Id. 2403. tution of legislative RFPA was based on two find- Second, “person” is defined as indi- “[a]n ings: church, vidual or association churches (1) governmental actions Laws order, religious body or institution or other facially which are neutral toward reli- qualifies exemption from taxa- which governmental well gion, as as laws (d) 501(c)(3) under section or of the tion actions intended to interfere with reli- (Public Internal Revenue Code exercise, may gious have effect of 501).” 99-514, Law 26 U.S.C. 71 Pa. substantially burdening the free exercise Third, §Ann. RFPA defines Stat. 2403. However, religion. neither State nor “substantially agency burden” as ac- “[a]n government substantially local should any following:” tion which does religion the free exercise of with- burden (1) Significantly constrains or inhibits compelling justification. out mandated expression conduct (2) Assembly The General intends that person’s sincerely held beliefs. all laws which it has heretofore enacted (2) Significantly person’s curtails abili- and all or will hereafter enact ordi- ty express person’s to adherence to the regulations nances and which have been religious faith. adopted political

or will be subdivi- person oppor- Denies a a reasonable agencies sions or executive shall be con- tunity engage activities which are imposition strued so as to avoid person’s religion. fundamental to the upon the free exer- substantial burdens (4) Compels expression conduct or religion compelling justi- cise of without tenet of a specific per- which violates fication. faith. son’s §Id. RFPA, “an agency

Under shall not sub- “person RFPA allows a whose free exer- stantially likely cise of has burdened or person’s burden free exercise been consent; I, Pennsylvania any ministry against 18. Article maintain his Section 3 of can, provides: authority Constitution no human case what- ever, rights or interfere with the control All men have a natural and indefeasible conscience, preference ever be and no shall right worship Almighty according God consciences; given by any religious law to establishments the dictates of their own no attend, worship. right compelled or modes of man can of Const., I, § support any place worship, Art. erect or or to Pa. will burdened in violation of be Amendment of the [§ 2404]” United States Constitu- bring judicial proceeding. a claim in a tion and granted the school districts’ mo- 2405(a). claim, § bringing Id. Prior to summary tion for judgment as to Parents’ notify must “person” agency, de- as-applied challenges. scribing agency action and the manner religion.

in which it burdens Id. A. 2405(b). § A “person” “proves, by who Division, In Employment Depart evidence, convincing clear and that ment Human Resources Oregon v. person’s religion free exercise of been has Smith, 872, 890, 494 U.S. 110 S.Ct. may burdened violation of [§ 2404]” (1990), 108 L.Ed.2d 876 Supreme declaratory injunctive receive relief. Court held “a law that is neutral and of 2405(f)- Monetary Id. damages are not general applicability justified need available. compelling governmental interest exceptions, With limited 71 Pa. Stat. even if the law has the incidental effect of 2406(a)-(b), §Ann. RFPA applies “to burdening particular religious practice.” State or local law or ordinance and the Church Aye, Lukumi Babalu Inc. v. ordinance, of that implementation law or Hialeah, 520, 531, 508 U.S. 113 S.Ct. statutory whether or otherwise and wheth- (1993); Smith, L.Ed.2d 472 see also adopted prior er or effective to or after the (“[T]he 494 U.S. at 110 S.Ct. 1595 2406(a). act,” effective date of this id. right to free exercise does not relieve an Thus, applies RFPA to the Public School individual of obligation to comply with Code, 24 §§ Pa. Stat. Ann. 1-101 27- a valid and general neutral law of applica bility on ground pro the law (or scribes prescribes) conduct that his III. (or religion prescribes proscribes).”). The We address Parents’ federal constitu- District Court concluded that “Act 169 is a tional claim. Parents contend Act im- neutral of general applicability law to all poses a substantial burden on the free Pennsylvania home schoolers and their protected exercise of by the home programs, with no refer First and Fourteenth Amendments.19 The ence or special impact on religious prac Commonwealth asserts Act 169 is neu- ” Combs, tices .... F.Supp.2d at 772. general tral law of applicability result, As a the District Court applied the rationally legitimate govern- related to the rational basis test to Parents’ challenge of mental ensuring interest in a minimal level Act 169 upheld provision. Id. at of education for all children. Applying review, rational basis the District Court passes concluded that “Act 169 constitu- v. Pennsylvania, Blackhawk (3d tional Cir.2004), muster as a neutral law of general applied we the standards Combs, applicability and effect.” 468 for a general neutral law of applicability F.Supp.2d at 777. Accordingly, the Dis- articulated Court Hialeah. trict First, Court denied Parents’ motion for facially law must be both summary judgment as to the facial actually chal- neutral. “A law is ‘neutral’ if it lenge to Act 169 as violation of target religiously the First does not motivated con- 296, 303, applies 19. The Free Exercise Clause to states 60 S.Ct. 84 L.Ed. governments through (1940). local the Four- Connecticut, teenth Amendment. Cantwell v. Act not a law applied in Parents contend 169 is either on its face or as duct Blackhawk, 209; applicability and is tantamount to general 381 F.3d at practice.” licensing home-schooling. scheme for Hialeah, 534, 113 also 508 U.S. S.Ct. see Blackhawk, 209-10, They F.3d at cite (“Official targets religious action that “that a proposition for the statute with cannot be for distinctive treatment conduct regime of in- waiver mechanism creates compliance with the re shielded mere dividualized, discretionary exemptions that neutrality. Free of facial quirement triggers scrutiny.” Reply strict against govern protects Exercise Clause depiction Br. at Act 8-9. Parents’ masked, hostility which is as well mental is mistaken and their reliance on Black- overt.”). Second, can government as misplaced. hawk is solely by target its interests not advance motivated conduct. In ing religiously noted, ways As there are four to fulfill stead, generally must be regulation compulsory requirement. education applicable. options exemption None of the an from is compulsory education law. All four general applicability

A law fails the re- require that a child be educated quirement category if it burdens a required subjects required period. for the religiously motivated conduct but ex- Furthermore, parents all who choose the empts or does not reach a substantial alternative, program home category religious- of conduct that is not reasons, whether for or secular ly motivated and that undermines the to fulfill Act require- purposes of the law to at least the same statutory ments. Parents cite no waiver degree the covered that conduct is gives mechanism that the school districts religiously motivated. authority exempt to waive or some Blackhawk, 209; parents 381 F.3d at see also Hial- from the disclosure and review (“The eah, requirements. 113 S.Ct. 2217 principle government, pursuit Blackhawk, Pennsylvania Wildlife interests, legitimate cannot a selective specific statutory exemp- Code contained only impose manner burdens on conduct authorizing tions the director of the Game by religious motivated belief is essential to permit Commission to waive a fee “where protection rights guaranteed by hardship extraordinary circumstance Clause.”). the Free Exercise Further, warrants.” Id. at 205. the court presented stated: are not here with “[w]e Act general appli- 169 is a neutral law of generally applicable [provi- a neutral and cability. targets It neither religious prac- n uniformly imposed sion] without selectively imposes tice nor on burdens allowing exemptions. individualized Un- religiously Instead, motivated conduct. it Smith, der such a scheme ... would not imposes requirements the same parents on trigger scrutiny, a person strict seek- who home-school for secular reasons as on ing provision’s to be excused [from parents who do so for reasons. requirements] religious grounds on would Furthermore, nothing sug- in the record unlikely prevail.” Id. at Act gests Commonwealth school officials dis- general applicability 169 is a neutral law of against religiously criminate motivated exemp- and does not allow individualized programs (e.g., home education denying distinguishable. tions. Blackhawk is approval of home education be- programs they cause include faith-based curriculum Act a neutral law of Since 169 is materials). rational general applicability, apply we will an exception ingful basis review unless to the role the state in plays preparing a applies. Smith rule basis re- citizenship “[RJational child for and adult life: merely requires view that the action be Today, perhaps education is the most rationally legitimate govern- related to a important function of state and local Ass’n, objective.” Tenafly ment Eruv Inc. governments. Compulsory school at- (3d 144, Tenafly, 309 F.3d 165 n. 24 v. great tendance laws and the expendi- Cir.2002). review, rational “Under basis ‘a tures for education both demonstrate constitutional, presumed statute is and the recognition our importance of ed- attacking legisla- burden is on the one ucation to our democratic society. It is arrangement negative every tive con- performance in the of our most it, basis which might support ceivable public responsibilities, basic even service whether or not basis has foundation in the very armed forces. It is the ” Inst., in Lighthouse the record.’ 510 good citizenship. Today foundation of it Doe, (quoting F.3d at 277 Heller v. 509 is a principal instrument in awakening 312, 321, 2637, U.S. 113 S.Ct. 125 L.Ed.2d values, the child to cultural in preparing (1993)). him for professional later training, and in helping adjust him to normally to his The has a in- legitimate Commonwealth environment. days, these it is doubt- ensuring taught terest in children under any ful that child may reasonably be home education programs achieving expected to succeed in life if he is denied minimum educational standards and are opportunity of an education. demonstrating progress sustained in their 483, 493, 686, 347 U.S. 74 S.Ct. 98 L.Ed. See, program. e.g., educational Bd. of (1954). Act 169’s require- disclosure Allen, 236, Educ. v. 392 U.S. 245-47 & n. corresponding ments and school district 7, (1968) 1923, 88 S.Ct. 20 L.Ed.2d 1060 rationally review legitimate further these (“[A] body of substantial case law has con- state Accordingly, interests. Act 169 sur- power firmed the of the States to insist vives rational basis review. schools, private attendance at if it is satisfy compulsory-attendance B. laws, be at mini- provide institutions which Parents assert their claim falls within a instruction, mum hours of employ teachers “hybrid-rights” exception the Supreme specified training, prescribed and cover in Court discussed Smith: subjects of instruction.... [I]f State satisfy must its only interest secular edu- decisions which we have through cation private the instrument of held that the First Amendment bars schools, proper neutral, it has a application interest of a generally appli- manner in which perform those schools cable religiously law to motivated action function.”); their secular educational have involved not the Free Exercise Soc.’y alone, Pierce v. the Holy Sisters Clause but the Free Exercise 510, Mary, Names Jesus and conjunction Clause in with other consti- (1925) 45 S.Ct. 69 L.Ed. 1070 protections, tutional such as freedom of (acknowledging the “power speech of the State and of press, see Cantwell v. schools, Connecticut, reasonably regulate U.S., 304-307, all to in- [310 spect, supervise them, and examine (invalidating licensing sys- 900] S.Ct. pupils”). teachers and In Brown v. Board tem for and charitable solicita- Education, Supreme Court noted tions under which the administrator had importance deny of education and the mean- any discretion license to cause nonreligious); incidentally hybrid rights); Murdock v. burdens” Sal he deemed Pennsylvania, U.S. 63 S.Ct. Army Dep’t of Cmty. Affairs, [319 vation (3d Cir.1990) (invalidating ] 87 L.Ed. (finding F.2d “[ble applied to the a flat tax on solicitation present controversy cause the does not ideas); Follett dissemination directly concern state action ad McCormick, 573, 64 v. U.S. S.Ct. [321 religion, dressed to Army] [The Salvation (1944) (same), 717, or the ] L.Ed. 938 88 cannot protection receive from the associa in acknowledged Pierce right parents, right tional derived from the free exercise Sisters, 510, Society U.S. 45 [268 v. clause”). We have never decided a case 571, ], L.Ed. 1070 to di 69 S.Ct. a hybrid-rights based on claim, let alone children, of their see rect the education type of a hybrid-rights claim invoked Yoder, 205, 92 [406 v. U.S. Wisconsin here —one based on the Free Exercise (1972)] (invali 1526, L.Ed.2d 15 32 S.Ct. Clause and the companion right to direct a dating compulsory school-attendance upbringing. child’s applied parents laws as to Amish who hybrid-rights theory Smith’s has divided religious grounds refused on to send our sister circuits. Some characterize the school). their children to theory as dicta and others use different Smith, 881, 494 at U.S. 110 S.Ct. 1595. plaintiff standards to decide whether a has substantially Parents contend Act 169 bur- cognizable hybrid-rights asserted a claim. both their free exercise of religion dens Appeals The United States Courts of for right parents, and their fundamental as the Second and Sixth Circuits have con Amendment, under Fourteenth to di- cluded the hybrid-rights language upbringing rect the education and of their Smith is dicta. See Harring Leebaert v. Accordingly, they hy- children. invoke the ton, (2d Cir.2003) 134, 332 (citing F.3d 143 Smith, brid-rights exception seeking Knight Dep’t v. Connecticut Pub. scrutiny Alternatively, review. Par- strict (2d Health, 156, Cir.2001)); 275 F.3d 167 that, ents contend notwithstanding hy- our Bible & Tract Soc’y Watchtower New determination, brid-rights Wisconsin v. York, Stratton, 553, Inc. v. 240 F.3d 561- good Yoder remains law and the same (6th Cir.2001), 62 rev’d on other grounds, applies constitutional test here. 150, 2080, 122 S.Ct. 153 L.Ed.2d (2002); Kissinger 205 v. Bd. Trs. Univ., Med., Veterinary Ohio State Coll. Although we have discussed the Smith (6th Cir.1993). 5 F.3d 180 Further theory in hybrid-rights prior opinions, its more, the Appeals United States Court of meaning application an open remains for the Blackhawk, hybrid- Sixth Circuit views the question in our circuit. See rights exception “completely illogical,” at (noting, discussing 381 F.3d while Smith, Kissinger, 5 at F.3d and the United prior “the Court did not overrule ‘hybrid Appeals States Court of for the decisions which claims’ ... had Second ‘neutral, Circuit “can think prevailed against generally good of no reason for appli- ” laws,’ vary simply cable the standard of review to deciding but case on other with grounds); Tenafly, rights n. the number of 309 F.3d constitutional “[sjtrict (noting violated,” scrutiny may apply plaintiff asserts have been neutral, Leebaert, generally when a applicable Accordingly, law 332 F.3d at 144.20 Souter, Hialeah, concurring 20. Justice [T]he also distinction Smith draws strikes me as hybrid-rights theory: ultimately hybrid criticized the untenable. If a claim is (D.C.Cir.1996) F.3d general (finding faced with a neutral law of when courts decline appellate both applicability, that the EEOC’s violation of the Establish- scrutiny of strict application to allow the ment triggered hybrid-rights Clause apply instead hybrid-rights claims and exception); Gary S. Manchester Sch. standard. See Leeb- rational basis Smith’s Dist., (1st Cir.2004) 374 F.3d 18-19 (“ aert, at 144 least until the ‘[A]t 332 F.3d Dist., (citing Gary S. v. Manchester Sch. legal holds that standards Supreme Court (D.N.H.2003)) (af- 241 F.Supp.2d vary the Free Exercise Clause de- under firming, reasons, same the district pending on whether other constitutional rejection hybrid-rights court’s of a claim rights implicated, we will not use a because the free exercise claim was not hybrid legal stricter standard’ evaluate conjoined independently with an viable (quoting Kissinger, claims.” claim); Hot, companion Sexy Brown v. & 180)). Prods., Inc., (1st 68 F.3d Safer Appeals for The United States Courts Cir.1995) (rejecting hybrid-rights a claim First and District of the Circuit Columbia “[plaintiffs] because free exercise chal- acknowledged hybrid-rights have that lenge conjoined is ... not indepen- with an may heightened scrutiny, warrant claims dently protected protec- constitutional suggested plaintiff but have that a must tion”).21 stringent meet a standard: the free exer- stringent approach This requiring an in- conjoined cise claim must be with an inde- dependently valid companion claim has re- pendently companion right. viable See criticism, ceived notably most that such a Kennedy, Henderson v. 253 F.3d (D.C.Cir.2001) requirement would make the free exercise (rejecting “hybrid the Hialeah, claim superfluous. See argument claim” that “the combination of (Souter, J., equals two untenable claims a tenable 113 S.Ct. 2217 concur- (“[I]f one”); Am., ring) hybrid E.E.O.C. v. Catholic Univ. claim is one in which a claims, simply cussing hybrid-rights one in which another constitutional the court stated right implicated, hybrid excep- strength then companion that the constitu- probably tion would vast so as to swal- required hybrid tional claim establish rule, and, indeed, hybrid low the Smith situation remains unsettled in the First Cir- exception cover would the situation exem- opinion cuit because the Brown did not "ex- Smith, plified by speech free since asso- plicitly” decide the issue. Id. at 98 n. 9. It rights certainly implicated ciational parental rights also noted that "the claim peyote hybrid ritual. But if a claim is asserted in that case was found to be weak so litigant actually one in which a would ob- claim, that it was not a colorable much less neutral, exemption formally tain an from a independently an viable one.” Parker generally applicable law under another fray court "enter[ ] chose over the provision, constitutional then there would meaning application 'hybrid of Smith’s have been no reason for the Court in what language,” "ap- situations’ and instead hybrid Smith calls cases to have men- proach[ed] parents’ claims as the Court tioned the Free at all. Exercise Clause case, did in Yoder. In that the Court did not Hialeah, 508 U.S. at 113 S.Ct. 2217 analyze separately process the due and free J., (Souter, concurring). parent-plaintiffs, exercise interests of the but interdepen- rather considered the two claims (1st Hurley, In Parker v. F.3d Cir. dently, given that those two sets of interests 2008), Appeals the United States Court of inform one other.” Id. at 98. The court rejected plaintiff parents’ the First Circuit plaintiffs ultimately did found not de- they given prior claims that must be notice scribe "a constitutional burden on their public opportunity exempt school and an rights” young reading and affirmed district court’s dis- children from books the parents religiously repugnant. find In dis- missal for failure to state a claim. Id. at 99. presence compelling demonstrate the actually exemption obtain an litigant would neutral, generally applica formally from a v. Guthrie In- state interest.” Swanson provi under another constitutional I-L, ble law 135 F.3d dep. Sch. Dist. No. sion, there would have been no reason then Cir.1998). (10th Nor is one in what Smith calls for the Court challenged indepen- establish that the law mentioned the Free hybrid cases to have dently companion violates a constitutional all.”); Axson-Flynn Exercise Clause alone, right any recognition without (10th Johnson, 1277, 1296-97 F.3d Cir. Free Exercise Clause. 2004) (“[I]t adopt a makes no sense to By requiring a “colorable claim” that a essentially requires strict standard violated, companion right has been companion claim because such successful Appeals United States Courts of for the free claim test would make the exercise Ninth and examine “the If additional Tenth Circuits unnecessary. plaintiffs successful, infringements constitutional claim is he she claimed on the party’s typically would not need the free exercise rights claimed to determine whether either hybrid-rights exception claim and the infringe- or the claimed rights the claimed case.”). nothing would add to the Swanson, genuine.” ments are Thus, trigger height- at 699. order Appeals for The United States Courts scrutiny, hybrid-rights plaintiff ened a recognize the Ninth and Tenth Circuits22 likelihood, must a fair probability show or hybrid rights require plaintiff certitude, but not of success on the mer- claim that a companion raise a “colorable companion its of his constitutional claim. right has been violated.” San Jose Chris Hill, 1024, Morgan tian Coll. v. 360 F.3d Smith, the Court asserted that (9th Cir.2004); 1032 see also Axson- present case before it ... “[did] Flynn, They 356 F.3d 1297. define situation, hybrid but a free exercise claim probability colorable as “a fair or a likeli unconnected with communicative activ hood, certitude, but not a of success on the 882, 110 ity parental right.” 494 U.S. at Coll., merits.” San Jose Christian 360 applicable S.Ct. 1595. The criterion to a 1032; Axson-Flynn, F.3d at 356 F.3d at free exercise claim with a com combined fact-driven, They characterize 1297. this panion right constitutional was left unde case-by-case inquiry ground as “a middle See, fined. e.g., Kissinger, 5 F.3d at 180 hy between of painting two extremes (noting that the “did Smith Court not ex brid-rights generously claims too and con plain how the standards under the Free struing narrowly.” Axsoiu-Flynn, them too change depending Exercise Clause would A plaintiff 356 F.3d 1295. cannot “sim rights on whether other constitutional doctrine, ply parental rights invoke the Smith, implicated”). majority Since combine it with a claimed free-exercise right, thereby government viability force the to the has not confirmed the Court 180). Although Ap Kissinger, the United States Court of 539 and 5 F.3d at The peals Circuit for the Seventh has not defini Appeals United States Court of for tively approach, ap articulated its it has Eighth recognized Circuit has existence provingly quoted the United States Court of hybrid rights but has not defined the con Appeals for the Ninth Circuit. See Civil Lib analysis. See Bible tours of the Cornerstone Chicago, erties Urban Believers v. 342 (8th Hastings, Church v. 948 F.2d 474 Cir.2003) (7th (quoting F.3d 765 Miller 1991) (reversing remanding Cir. to dis Reed, (9th v. Cir. 1207-08 claim). hybrid-rights trict court to consider Brown, 1999)); (citing but see id. 68 F.3d at

247 (2000) (plurality opinion) theory.23 Until the L.Ed.2d hybrid-rights (“[T]he direction, we be- Due Process Clause of the Four- provides Supreme Court theory protects to be dicta. hybrid-rights teenth Amendment the fundamen- lieve the right parents

tal to make decisions con- care, cerning custody, and control of children.”). approaches apply if were to Even we sister circuits—“colorable” used our rely Supreme on three Court independently viable approach claim generally identify parent’s cases to con- would find Parents’ approach claim right stitutional to direct a child’s edu- —we unconvincing. either arguments Under Nebraska, Meyer cation. v. See U.S. whether approach, we must determine 390, 401-03, 67 L.Ed. 1042 S.Ct. hybrid-rights claim Parents can establish a (1923) law (holding prohibiting state for- by asserting combined violations of eign language instruction violated the companion Exercise Clause and the Free “power parents to control the education parent of a under the Fourteenth right own”); Pierce, 535-36, of their 268 U.S. at to direct a child’s education. Amendment (holding compulsory S.Ct. ed- indepen- an presented Parents have not requiring ucation law students attend and, companion claim dent or colorable solely “unreasonably public schools inter- hy- a valid accordingly, cannot establish liberty parents feres with the brid-rights claim. upbringing direct and education of control”); children under their Wisconsin guaran “The Due Process Clause Yoder, 205, 214, 234-36, process.... than fair tees more (finding S.Ct. 32 L.Ed.2d heightened protection provides Clause also system, compulsory applied education as to government interference with cer against Amish, the to violate the Free Exercise rights liberty and inter tain fundamental and the par- Clause “traditional interest of Washington Glucksberg, v. 521 ests.” U.S. respect the religious upbring- ents with 2258, 702, 719-20, 117 138 L.Ed.2d S.Ct. ing long they, of their children so (1997). In Glucksberg, Supreme 772 (them) Pierce, ‘prepare words of for addi- rights articulated the fundamental Court obligations’”). particular But the tional protected by the Due Process Clause. Id. right right asserted in this case—the to be 719-20, 117 Included in the S.Ct. 2258. reporting requirements free from all and right “to direct the education list was the “discretionary” oversight child’s upbringing and of one’s children.” Id. at home-school education-—has never been 720, (citing Meyer 117 2258 v. Ne S.Ct. recognized. braska, 390, 625, 262 U.S. 43 S.Ct. 67 (1923), Soc’y Although L.Ed. 1042 and Pierce v. Parents assert the fundamen- it Holy general right, Names Jesus and tal nature of their is a Sisters of 510, 571, Mary, 268 45 S.Ct. 69 L.Ed. limited one. We have noted Su- “[t]he U.S. Granville, (1925)); preme upon also Troxel v. Court has never been called see 57, 66, 2054, precise parent’s 530 U.S. 120 S.Ct. define the boundaries of noted, Souter, ed, explanation, concurring without further discussion or 23. As Justice in Hi aleah, hybrid-rights theory. criticized the Hi "implicated” right to free exer that Yoder 566-67, aleah, 508 U.S. at 113 S.Ct. 2217 right parents cise of and the , J., (Souter, concurring). Boerne, Furthermore control their children's education. Flores, 507, 521 U.S. 117 S.Ct. Boerne v. P.F. 514, 521 U.S. at 117 S.Ct. 2157. 2157, (1997), L.Ed.2d 624 the Court not- right upbringing closing opportunity to control a child’s of individuals clear, however, groups It that the path education. to choose different unqualified.” nor education. right is neither absolute Educ., Ridgewood Bd. 430 F.3d C.N. v. Brown, 533; Runyon, see also (3d Cir.2005). “The case law in (stressing U.S. at 96 S.Ct. 2586 parents simply this area establishes that Pierce). scope” Meyer the “limited right do not have a constitutional to con- case, In present given Parents are every aspect trol each and of their chil- path freedom to choose “different dren’s education and oust the state’s au- -home-schooling—subject only education”-— Swanson, thority subject.” over that requirements. to the Act 169 The school Furthermore, F.3d at 699.24 districts do not have role in selecting repeatedly Court has stressed that

[t]he program Parents wish to follow. Par- parents right while have a constitutional point ents are unable to to a in- single private to send their children to schools stance which the school districts have right pri- constitutional to select religious limited or interfered with their specialized vate schools that offer in- teachings materials. and/or struction, they have no constitutional deposition, her Shari Nelson acknowl- right provide pri- their children with edged that her local school district never vate school education unfettered rea- questioned rejected her affidavits and government regulation. sonable did not interfere with her content Runyon McCrary, 96 choices. Mrs. Nelson noted she was never (1976).25 S.Ct. 49 L.Ed.2d 415 concerned that the local school district reject would portfolio her children’s if it Yoder, In addition to infra, discussed contained work product with a rely Meyer on and Pierce for subject Similarly, Maryalice matter. New- foundational support. together, Read born acknowledged that her local school cases questioned district never appropriate- principle evince the that the state cannot ness of her home program or its prevent parents choosing specific from content. program educational it be reli- —whether gious private instruction at a school or Parents nevertheless contend that instruction in foreign language. a That “subjective” Commonwealth’s and “discre- is, the state power tionary” does not have the to review over the Act 169 disclo- “standardize its children” or “foster a sures violates their right to control their homogenous people” by completely fore- They any children’s education. insist re- Dist., 381, 24. addressing Federal courts the issue have Fort Thomas Pub. Sch. 401 F.3d parents right held that exempt (6th have no to Cir.2005) (finding parent 395-96 that a their subjects, reading child from certain as- right exempt "does not have a fundamental to signments, community-service requirements code”). his child from the school dress assembly programs they or objectionable. find See, Parker, e.g., (reading 514 F.3d at 107 25. Parents who home-school their children Leebaert, assignment); 332 F.3d at 144 may subjected testing be to standardized to (health class); Chapel education Herndon v. receiving adequate ensure the children are an Educ., City Hill-Carrboro Bd. 89 F.3d 174 Arkansas, Murphy education. See (4th Cir.1996) (community-service require- (8th Cir.1988) (upholding state ment); Dist., Rye Immediato v. Neck Sch. requirement standardized test over home (2d Cir.1996) (community- F.3d 461-62 schooling parents' First and Fourteenth Brown, requirement); service at F.3d objections). Amendment (sexual assembly); see Blau v. also must tween actions strike at heart of programs the home education view of words, “objective.” parental decision-making authority In other on mat- purely be usurps greatest importance the Commonwealth they contend ters other rights parents parental ... are not of constitutional actions C.N., makes a limited determi- when an official dimension.” 430 F.3d at 184. Par- “sustained of whether a child has identify general right nation to control ents program.” Parents progress the overall child. But the education of one’s Parents articulated their definition of “ob- have not right do not have constitutional to avoid questioned jective” in their brief. When regulation reasonable state of their chil- argument, Parents’ counsel during oral reporting dren’s education. Act 169’s unwilling provide unable or to a con- was superintendent requirements review en- example “objec- of an explanation crete or taught sure children in home education Furthermore, it is difficult tive” review. programs demonstrate progress the ed- that review of accept to Parents’ assertion program. ucational The statute does not truly progress educational can be a child’s interfere, interference, or authorize essay, objective. grading of an even religious teachings with Parents’ and/or scale, always imbued pass/fail on a will use of materials. Parents’ claim subjectivity. with some element the Fourteenth under Amendment is of insufficient constitutional dimension to noted, recognized As there is no independently either an state viable col- their children right parents to educate Accordingly, orable claim. under both the government reasonable “unfettered stringent hybrid-rights ap- colorable Runyon, 427 U.S. at regulation.” circuits, proaches of our sister expressly in Pierce 2586. The Court S.Ct. “ claim.” “hybrid-rights have not asserted power ‘the of the State acknowledged schools, in reasonably regulate all them, spect, supervise and examine ” Pierce, that, Parents also contend notwithstand- pupils.’ (quoting teachers and 571); ing 45 S.Ct. see also different standards articulated (not claims, regarding hybrid-rights 43 S.Ct. 625 the circuits Meyer, U.S. compel they type raise the same of claim as the ing power of “[t]he They in Yoder. contend that since parents attendance at some school and to make law, regulations good parents claiming for all ... Yoder is still reasonable schools exemption questioned” by parties).26 religious-parental neutral [was] Furthermore, general applicability get the there is “a distinction be- law of benefit context, Supreme Court cation statutes. These cases were sensi- different corollary Society stated: ble of Pierce v. Sisters: Pierce, satisfy body law must its interest in secu- Since a substantial of case if State power the States to through pri- has confirmed the the instrument of lar schools, private schools, that attendance at if insist proper vate it has a interest in the compulsory-attendance satisfy it is to perform manner in which those schools laws, provide mini- be at institutions which their education function. secular instruction, employ teachers mum hours of Allen, 1 Bd. Cent. Sch. Dist. No. v. of Educ. of specified training, prescribed and cover 236, 245-47, 1923, 392 U.S. 88 S.Ct. Indeed, subjects of instruction. the State’s (1968) (examining validity of a L.Ed.2d 1060 assuring interest in that these standards requiring to New York statute school districts being a sufficient met has been considered purchase and loan textbooks to students en accept refusing instruction at reason for to schools). parochial rolled in compulsory compliance with edu- home as

of the traditional Free Exercise Par- ny test. and found the lacking. State’s interest 235-36, beyond legitimate ents that “it is Id. at assert S.Ct. 1526.

question that the same constitutional tests reading favor broad of Yoder employed Yoder must be used here to applies insist it to all citizens. religious-parental evaluate these Parents’ But Yoder’s reach by is restricted Br. at claims.” Parents limiting language Court’s and the facts suggesting an exceptional burden imposed Yoder, granted In the Court a religious- Yoder, plaintiffs. on the In religious exception regulation based to a general beliefs of the Amish completely were inte- applicability. John E. Nowak & Ron- C.f grated with their community and “mode of Rotunda, D. ald Constitutional Law 17.6 Yoder, 235, life.”27 406 U.S. at 92 S.Ct. (7th 2004) (“Yoder ed. stands out as the result, 1526. As a compulsory attendance one instance in which the required Court would “substantially with the interfere] government grant persons who religious development of the Amish child comply could not law with the due to their integration his into way of life of religious exemption beliefs an from a law the Amish faith community.” Id. at regulating per- conduct of all Accordingly, S.Ct. 1526. the Wisconsin ”). sons .... But unique burden suf- very law carried “a real threat of under- Amish, by fered combined with the mining the community Amish Supreme limiting Court’s language, distin- id., practice,” placed the continued guish Yoder from this case. survival of Amish communities in “dan- response objections citi- Amish ger,” id. at n. Compul- S.Ct. 1526. zens, the Yoder Court held that the First sory “prevented attendance these Amish required partial exemption Amendment parents from making deci- fundamental from a compulsory high-school Wisconsin regarding sions their children’s religious requiring education law children to attend upbringing and effectively overrode their public private age school until 16. The ability to pass on to their Amish children, refused to send their ages children, required.” Parker, as their faith 14 and completion school after Yoder, 514 F.3d at (citing 99-100 eighth grade schooling. The Court not- 1526). 233-35, 92 S.Ct. ed the Amish’s “convincing showing:” applying Before a heightened level of the Amish in this case have convincingly scrutiny, the Court wanted to ensure that sincerity demonstrated the of their reli- the “Amish faith and their mode beliefs, gious the interrelationship of be- are, claim, of life they inseparable and life, lief with their mode the vital role Yoder, interdependent.” U.S. daily play belief and conduct in the 92 S.Ct. 1526. Recognizing the exception- continued survival of Old Order Amish al nature of the Amish’s showing, the communities and their religious organi- held: Court “when the parent- interests of zation, and presented by the hazards hood are combined with a free exercise State’s enforcement of a statute general- record, claim of the nature revealed this ly valid as to others. merely more than a ‘reasonable relation to Yoder, 406 U.S. at 92 S.Ct. 1526. The some purpose within the competency applied Court a heightened level of scruti- State’ is to sustain the validi- Parker, This "mode of life" reference in Yoderhas of one’s belief to his or her faith. See interpreted been to refer to a distinct commu- 514 F.3d at 100. life, nity way simply centrality not authority approval.” a for prise secular requirement under the State’s ty of 233, 92 Finding weight Id. at S.Ct. at 941. that “the Amendment.” Id. First County 1526; Mozert v. Hawkins strongly against see also legal precedent is (6th Educ., 827 F.2d Bd. Academy’s position,” id. at the United Cir.1987) (“Yoder singular on such a rested Appeals for the First Cir- States Court not believe it can be that we do set of facts signif- that “this case differs cuit concluded rule----”). a general to announce held [Yoder],” id. at 951.28 It not- icantly from procedures that the state’s ed Appeals for Court of The United States interpreted the Circuit has the Second with do not threaten interference reli- of Yoder to be the underpinning central religious gious practices, prayer, or community’s way of to the Amish “threat record, teaching; and the while indicat- life, attend- by compulsory a school posed ing religious scruple, a sincere does not Leebaert, F.3d at 144. statute.” ance suggest that enforcement of the [state] Leebaert, alleged a violation of parent In procedures destroy would Amendments be- the First and Fourteenth community’s way of life. Nor does the refused to excuse his son cause a school that support record the view the Acade- and education mandatory health from own, my, provide left on its would “ide- questioning not the sinceri- course. While adequate al” or even secular education. beliefs, the Second Cir- ty parent’s quite All these factors make this case by governed claims not cuit found the were unlike Yoder. allege did (plaintiff id. Yoder. See omitted). (citations is community’s way entire of life “his threatened;” plaintiff “does not assert Similarly, by claim raised Amish Yoder-like clash is an irreconcilable there parents distinguished Yoder can be from [plaintiffs] reli- the essence of between claim here. Act raised mandatory and the health gious culture does not threaten Parents’ or their com- challenges”); that he see also curriculum munity’s though entire mode of life. Even Brown, (distinguishing at Yo- keep Parents are records and compulsory a one-time attend- der because review, they are in com- submit them for did not threaten program ance at a health plete religious upbringing control of the life”). way “their entire fact, Parents are unable their children. pre-Smith Baptist In the case New Life point to even one occasion which the Academy Longmeadow, Church v. East questioned school districts have their reli- (1st Cir.1989), 885 F.2d 940 beliefs, texts, teachings. gious remarkably similar claim school asserted dispute in Yoder involved an addi- Baptist claim. The New Life to Parents’ years tional one or two of education Academy comply refused to with Church schools versus “vocational” edu- public determining procedures rules and The Amish allowed their cation home. pro- of the secular education adequacy public schools until children to attend because it believed “it vided the school only a eighth grade sought partial educational enter- [its] sin to ‘submit’ noted, lyzed Baptist Yoder within the “less restrictive alter- New Church Acade- 28. As Life Accordingly, my Baptist Smith. was decided before context. New Church native” Life test, applied Acad., this, New Circuit the Sherbert First Despite we 885 F.2d at 948-52. Acad., Baptist F.2d at 944 Church Circuit’s discussion of Yoder to find First Life Verner, (citing Sherbert v. be informative. (1963)), and ana- S.Ct. 10 L.Ed.2d 965 from claim exemption compulsory tinguishable parents’ the Amish from the state’s Furthermore, Yoder. in attendance law. the school in Yoder assumed the state would Court C. regulate the Amish’s home to the ensure satisfaction of educational stan- basis Since Act survives rational Yoder, See dards. U.S. since to review and Parents have failed (“The long had a S.Ct. States have an exception Smith’s establish that to neu- history relation- of amicable and effective general applicability ap- tral law of rule schools, ships church-sponsored with plies, Parents’ federal constitutional claims that, assuming in there is no basis for this fail. context, can-

related reasonable standards IV. concerning be the content established continuing education of vocational addition In to their federal consti guid- Amish children under parental claims, tutional Parents stat assert a state ”). contrast, request .... In ance Parents utory Religious claim under the Freedom exemption seeking Act, a full from Act §§ 71 Pa. 2401- Protection Stat. Ann. primary their administer children’s entire In order under obtain relief secondary RFPA, education without re- prove by Parents must clear and They cite view Commonwealth. evidence that convincing their “free exer Yoder au- challenge government’s religion likely cise of has been burdened or thority engage regulation in the and will burdened violation 2405(f). discretionary review of their home edu- If sat [§ 2404].”30 Parents burden, programs.29 cation claim is isfy Parents’ dis- this the school districts are In Attorney, public Duro v. Dist. Judicial Second Amish allowed their children to attend Dist., (4th Cir.1983), plaintiffs, 712 F.2d 96 completion grade. schools until of 8th children, alleged Therefore, who home-schooled their the State was assured that the Am- compulsory that the state school attendance approved ish received a edu- children infringed upon law their beliefs. the Court cation and found an additional one court, Yoder, heavily upon relying The district years compulsory or two formal education ap- found state law as unconstitutional to be insufficient to overcome the Amish’s plaintiffs. plied to the The Circuit Fourth Duro, case, interests. this Parents seek to home- reversed, distinguishing Yoder. primary school children for their entire at 98-99. secondary education. Yoder, [I]n the Amish children attended public grade through eighth school 30. Section 2404 states: training then obtained informal vocational (a) Except provided rule. General to enable them into the to assimilate self- (b), agency subsection an shall not substan- However, community. contained Amish tially person's burden free exercise of case, present [plaintiff] refuses to enroll religion, including any burden which re- any public nonpublic his children in general applicability. sults from rule of time, any length school for but still ex- (b) Exceptions. agency may An substantial- pects fully integrated them to be and live ly person's burden free exercise of normally upon in the modern reach- world proves, agency by preponderance if the ing age of 18. evidence, that the burden is all Id. at 98. following: Although they "readily can Parents contend (1) compelling In furtherance of a inter- demonstrate” that will their children be self- agency. est they sufficient even if submit their do not gov- The least restrictive means further- children's work on an basis to a annual review, ing compelling ernment official for his Br. at interest. added). distinguishable. (emphases their claim remains Id. 2404 by compels expression” “conduct or of 169 by preponderance a prove, the content and requiring them to submit a com- evidence, Act 169 furthers that children’s educational records of their the least restrictive interest and is pelling the school districts. Because progress to 71 Pa. the interest. furthering means of subject to review these submissions 2404(a)-(b). Thus, as a § Ann. Stat. districts, Par- by the school approval matter, by prove, must Parents threshold “specific contend Act 169 violates ents evidence, their convincing clear and faith —that “edu- tenet” of their likely has or will free exercise children, merely cation of their “substantially burdened.”31 education,’ ‘religion’ and is as- ‘religious Parents concluded District Court jurisdiction to the signed by God convincing clear and failed to establish family.” Br. at 64. substantially bur- that Act 169 evidence application The construction and religion. free exercise of dens “substantially RFPA’s fourth definition of Combs, granted It at 771. F.Supp.2d impression32 is an issue of first burden” summary motion for districts’ the school Pennsylvania As and a matter of law. as-applied the facial and on both judgment noted, jurisdiction was the District Court’s RFPA. Id. Par- based on the challenges 1343(a)(3), §§ upon based 28 U.S.C. error, contending the District ents assert 1441. Because we affirm 1367 and misapplied review or either failed to Court summary judg- grant District Court’s Further, statute. actual text of the claims, only all of Parents’ federal ment on the fourth defini- that because they argue claim remains. their state law Under clear and “substantially burden” is tion of 1367(c), may “district courts de- U.S.C. improper- the District Court unambiguous, jurisdiction” supplemental cline to exercise leg- like to extraneous sources ly resorted law claim if “the claim raises a over a state interpret- history and federal cases islative complex of State law novel or issue Free Exercise Clause ing the federal all court has dismissed the district [or] Freedom Restoration Religious the federal jurisdic- original it has claims over which Act. 1367(c) courts provides tion.” Id. Section the fourth definition sup- Parents invoke to exercise “the discretion to refuse con- “[cjompels judi- “substantially jurisdiction when ‘values plemental burden” — fairness, convenience, specific economy, which violates cial expression duct or district court re- comity’ 71 Pa. counsel that the person’s religious faith.” tenet of a claims to a state forum.” Act mand state Parents contend Ann. 2403. Stat. noted, Court of "substantially Commonwealth bur- RFPA defines 31. As interpreted definition Pennsylvania the third den” as: person a substantially "[d]enies which does agency An action burden — (1) engage following: Significantly opportunity constrains in activities reasonable expression mandated conduct or person's inhibits to the reli- which are fundamental sincerely beliefs. person’s held Ridley Church gion.” Park United Methodist (2) ability person’s Significantly curtails Borough Hearing Ridley Park Zoning Bd. person’s reli- express to the adherence (Pa. Park), (Ridley A.2d 957-61 (3) person a reason- gious faith. Denies Commw.Ct.2007). The court concluded engage in activities opportunity to able reli- "daycare is not a fundamental because person’s reli- fundamental to the which are church,” Zoning activity Hear- gious of a expression Compels gion. conduct or erroneously Id. at ing applied RFPA. Board person’s specific tenet of a which violates a religious faith. §Ann. 2403. 71 Pa. Stat. SCIRICA, concurring. Bank Mort Chief Judge, Hudson United v. LiTenda Cir.1998) (3d gage Corp., 142 F.3d 1367(c) provides: “The Section district Coll. (quoting City Chicago v. Int’l may supplemen- courts decline to exercise 156, 173, Surgeons, 522 U.S. 118 S.Ct. (1) jurisdiction tal over a ... if claim (1997)). A to 139 L.Ed.2d 525 decision claim raises a complex novel or issue of remand section 1367 “reflects the under ... State law the district court [or] has present that at all claims which it judgment orig- court’s dismissed over has ” 1367(c). § jurisdiction.... inal 28 U.S.C. stage it would best for litigation be The District Court exercised supple- here jurisdiction to so supplemental be declined jurisdiction mental over Parents’ state law may adjudicated by that be state issues Religious Freedom Protection Act claim. Bank, 142 state court.” Hudson United fully presented claim was adju- to and (citing F.3d at 158 United Mine Workers by I dicated the District Court. would Gibbs, 715, 726-27, 86 S.Ct. decide issue. (1966)). 1130, 16L.Ed.2d 218 noted, in As order to obtain relief under only remaining Parents’ claim involves RFPA, Parents prove must clear and the interpretation of a state statute on convincing evidence that their free exer- which no Pennsylvania there is precedent. religion substantially cise of has been bur- Because all issues decid federal have been likely substantially or will dened be bur- judgment ed on Par summary and since 2405(f). § dened. If Parents po ents’ RFPA claim raises a novel burden, satisfy this the school districts are law, tentially complex issue of State we prove, by preponderance juris will supplemental decline to exercise evidence, that Act 169 furthers a com- pendent diction over Parents’ state law pelling interest and is the least restrictive 1367(c).33 claim. 28 U.S.C. furthering means of the interest. 71 Pa. 2404(a)-(b). Thus,

Stat. Ann. as a matter, threshold prove, by Parents must V. evidence, clear and convincing that their free exercise of has or will reasons, likely foregoing For the we will af- “substantially burdened.” grant summary firm District Court’s judgment in favor school districts on have conflicting Parents made claims as claims, Parents’ federal constitutional va- what conduct or review the school cate the District Court’s holding regarding districts constitutes a substantial burden. claim, pendent RFPA and remand the In complaint, their challenge Parents all case to the District Court with instructions state review of their pro- home education to remand the RFPA claim grams.34 deposition testimony to state court. But reveals See, ¶ ("Mr. e.g., v. Board Compl. School Directors Al- Combs Shaffer District, religious acknowledge Combs' bert Mrs. beliefs Gallatin Area School government may (3d Cir.1984), require that civil them to pre-section deci- children, but, according their educate sion, their supports Shaffer, this we conclusion. belief, religious government the civil lacks underlying found that "where the issue of jurisdiction approve administratively su- question state law impression is a of first with pervise provide.”); they the education Combs important implications public ¶ ("It Compl. specific is a tenet of Mr. and Pennsylvania, weighing factors in favor of faith, religious Mrs. Combs' rooted in their adjudication certainly predomi- state court Bible, understanding of the that it would be nate.” Id. at 913. engage for them to in conduct sinful or ex- pression grant that would control over their ary” of their children’s educational permissi- review by Parents on the variance some oversight.35 progress. assuming proper Neverthe- But conces- level of state ble briefs, sion, less, District Court alteration of the claim possible in their this authority “placing contended District again was not made before the Court. sincerely agency violates “it is a held beliefs” I. faith that of their specific tenet noted, applica- As the and construction jurisdiction the over edu- lacks the State tion of RFPA’s fourth definition of “sub- family Act 169 asserts.” and the that cation of im- stantially burden” is an issue first to Summ. Opp’n Br. Def.’s Mot. J. Parents pression. Because this is matter of 9-10, 14, argument, 2006.36 At oral Apr. at law, Pennsylvania predict “we must how however, again shifted Parents’ counsel Court, Pennsylvania the faced Supreme if appeared to focus of their claims and the issue, with the identical would construe the objectionable portion the of concede that Prop. Prudential & Cas. Ins. statute.” keeping, the test- Act 169 was not record Pendleton, (3d 930, Co. v. evaluation, 934 party or but the ing, third Cir.1988).37 independent, districts’ “discretion- school govern- Assembly.” § the civil of the General Id. 1901. education to intent children's ment.”); ("It ¶ Compl. specif- is a object interpretation 20 "The of all and Hankin construc- and Hankin's ic tent of Mr. faith, Mrs. and tion of statutes is to ascertain effectuate understanding their of the rooted in Assembly.” the Id. intention General Bible, be them to have that it would sinful for 1921(a). § public sys- with the association school phrases Words and are construed "accord- tem.”). ing approved usage,” to their common and 49, See, Dep. technical words which defined e.g., Maryalice Newborn at whereas 35. 30, ("Q: according Aug. peculiar will What level of review be construed 2005 None.”); acceptable you? § be A: Id. "When of would definitions. the words 6, 2005, ("I Sept. Dep. at ambigu- Thomas Hankin the statute are clear and free from all personally that if the discretion of the ity, disregarded believe letter of it not to be the is removed, there were would be school district pretext pursuing spirit.” its under the of beliefs; my religiously with a lot less trouble 1921(b). Pennsylvania Supreme The Court is, school district a that if I submitted the recognized repeatedly that rules of con- "has my educating statement that said I am struction, such as a statute’s consideration teaching this is I’m them children and what ‘object’ perceived ‘purpose,’ are to be re- or year.”). this only ambiguity.” an when there is sorted to Taylor, 576 Pa. 841 Commonwealth Opp'n Br. Mot. 36. See also Parents Def.’s However, (2004). A.2d ("Because Apr. Summ. J. at [wjhen not the words of the statute are Plaintiffs believe that all education inher- explicit, the intention of the General Assem- jurisdiction ently religious, Caesar has no by considering, bly may be ascertained all.”); (citing it id. Herbert W. over (1) among The and other matters: occasion Titus, Regent University founding dean of (2) necessity the circum- statute. The Law, proposition School for the (3) was stances under which it enacted. "[bjoth and the Free Exer- the Establishment (4) mischief to be remedied. The ob- The government preclude civil cise clauses the law, (5) ject The if to be attained. former exercising jurisdiction the edu- from over including upon any, other statutes the same people.”). cation the (6) subjects. consequences or The similar (7) interpretation. con- particular The statutoiy rules of Commonwealth’s legislative history. Legis- temporaneous construction, at 1 Pa. Cons.Stat. codified observed, interpretations of 1901-1978, lative and administrative §§ be the “shall unless result in a such statute. application of such rules would 1921(c). Cons.Stat. with the manifest Pa. construction inconsistent construing meaning your strength. the “substan- These commandments burden,” you today your tially give upon Court on are to District relied statute, Impress your them hearts. on children. plain language of the anal- you Talk about when sit at and them home ysis “substantially in the “con- burden” road, you you along when walk when text Free Exercise and similar Clause you up.”), down when acts,” get lie and Psalms freedom of restoration 145:4(NIV) (“One generation will commend intent to re- Assembly of the General another; your they works to will tell of ex- (pre-Smith) store “traditional free 6:4(NIV) acts.”), Combs, your mighty Ephesians ercise of religion standards.” (“Fathers, noted, your chil- exasperate do F.Supp.2d at 771. con- As dren; instead, bring up them in train- ignored tend District Court either Lord.”), ing instruction of the misapplied plain stat- language (“Train way up Proverbs 22:6 a child improperly legislative ute included his- go old, he should and when he will tory pr analy- and in is he e-Smith decisions its it.”), depart not from for the proposition sis. directly upon that God has called them to II. their home educate children. rely exclusively upon Parents the Second, Parents contend God has as- “substantially RFPA’s fourth definition of signed religious matters to the exclusive agency burden” —“an action which alia, jurisdiction family, of the citing, inter [c]ompels or expression conduct which vio- (“Then Luke 20:25 render to the Caesar specific person’s religious lates tenet of a Caesar’s, things that are and to the God faith.” 71 Pa. Stat. Ann. 2403. Parents things God’s.”), are Psalms they compelled, contend threat under 127:3(NIV) (“Sons heritage are a the from truancy charges, of portfolio to submit the Lord, him.”), from children reward Mat- product of their children’s work to the (“Don’t give holy thew 7:6 what is to unho- discretionary school districts for review. (“Whatev- ly people.”), 1 10:31 Corinthians turning describe the act of over do, you God.”), er it all glory do for the portfolio discretionary the review as (“Be 2 Timothy diligent 2:15 present expression.” They “conduct or point to yourself God.”), approved to 1 Thessaloni- judgment the exercise of editorial and (“We 2:4 trying please ans are not men creativity part on the the edu- home God, hearts.”), but who tests our Acts and supervisor cation as evidence of this ex- (“We obey 5:29 must than God rather pression.38 Moreover, Parents assert men.”). Parents contend Act replaces “specific tenet” based certain reli- upon headship the Christ family, over the and gious beliefs. children, their over headship their the with First, Parents maintain their faith teach- headship of the state family, over the cit- children, alia, 11:3(NIV) es that “education of ing, inter 1 Corinthians merely education,’ (“Now ‘religious the is ‘reli- I you want to realize that head the ” cite, gion.’ Christ, Parents Br. at every 64. Parents man is and the head of alia, 6:5-7(NIV) Deuteronomy man, inter woman is and the head of is Christ (“Love (“For your your God.”), 5:23(NIV) the Lord God with all Ephesians your and all heart with all soul with husband is head of wife as Christ is assume, I deciding, meaning without that Parents’ the RFPA. expression" actions are "conduct or within like, politics or the church, religion, philosophy, body, his of which head Savior.”), school, sect, Ephesians party, person.” or held he is (“Children, in 6:1(NIV) obey your parents English Dictionary (Compact Oxford a result Lord, right.”).39 As for this is ed.1971); Dic- see also Merriam-Webster’s tenet,” Parents assert “specific this (9th ed.1990) tionary (defining “tenet” religious held belief sincerely belief, generally or principle, “a doctrine as authority to com- have no districts school true; especially: to be one held held discretionary engage or to pel reporting organization, of an common members program. of their home review movement, profession”). or group, “specific tenet” is not defined The term context, “spe- term In the Act Freedom Protection Religious in the to define.41 Even cific tenet” difficult § 1991.40 The Oxford or 1 Pa. Cons.Stat. concept may be stated though Dictionary “specific” defines English mind, may, it in the believer’s generally, fulfilment, respect or exact “precise tenet. At one end of specific religious abe definite, conditions, terms; explicit” or relatively spectrum, specificity may be indicated, capable named or “exactly easy identify be- straightforward so; Oxford being precise, particular.” “specific tenet” is as an cause the observed (Compact Dictionary English of a particular manifestation reli- outward ed.1971); Dic- see Merriam-Webster’s also example, belief. For in Fraternal gious ed.1990) (9th (defining “spe- tionary 1132 Lodge Newark No. 12 v. Order Police being properties “sharing cific” as or those of (3d Newark, Cir.1999), 170 two F.3d 359 it to something that allow to be referred successfully Muslim chal- Sunni officers from category” or as “free particular all lenged requiring po- an internal order as “[a] “Tenet” is defined ambiguity”). Plain- doctrine, in lice officers to shave their beards. dogma, opinion, principle, phrases 40. Section defines words and also cite the Catechism 1991 39. The Previshes See, “any finally e.g., enacted on or after Cate- for statute Roman Catholic Church. 1, ("Parents September responsi- 1937.” 2223 have first chism children. bility for the education their responsibility first They to this bear witness "specific,” "specificity,” and 41. The words tenderness, creating forgive- where Pennsyl home “particularity” familiar are terms ness, law, respect, fidelity, and ser- disinterested procedural and and in that vania federal context, home is well suited for heightened vice are the rule. The pleading stan denote (notice) requires an in the virtues. This opposed general dard as to a more self-denial, judgment, See, apprenticeship in sound e.g., v. Muhammad Strassbur standard. Gutnick, McKenna, Messer, self-mastery preconditions of all ger, and Shilobod & —the 541, 1346, should teach their true freedom. Pa. A.2d 1352 526 587 ("Both 1019(b) in- Pennsylvania to the 'material and children subordinate Rule of the spiritual to interior and require stinctual dimensions and Rules of Civil Procedure case law ("As "); re- ap Catechism 2229 those first plead specificity. ones.' with The that fraud be children, for education of their sponsible level pellees’ complaint does rise to the omitted)); right (citation for parents have the to choose a school require.” specificity that we corresponds to own convic- Corp. Litig., them which In Advanta Sec. re c. f. 525, Cir.1999) (3d right (noting, As far as tions. This is fundamental. in the F.3d choosing parents duty Litigation possible have Reform Act Private Securities context, ("PSLRA”) help task that will them in their that the PSLRA schools best fraud 9(b) precisely authorities Fed.R.Civ.P. and there Christian educators. Public "echoes as who, parental requires plaintiffs plead to 'the duty guaranteeing this fore have the when, what, where, (citation and how right ensuring concrete for and of conditions omitted)). exercise."). its religious concepts. tiffs articulated a commandment fested This is not to undervalue 360-61; which, revelations, grow may wear a at these tenets as beard. be fundamental to one’s In Philadelphia, also v. No. beliefs. see Deveaux situations, however, 1869666, may these diffi- it be Term at 3103 Feb. 2005 WL (Pa.Com.Pl. 2005) litigant’s cult to determine whether a cita- July 14, (granting *1-2 scripture general religious tions to or to injunction preliminary preventing concepts “specific articulate a tenet.” Also city practicing from suspending Muslim problematic analysis this firefighter pay refusing without may tenets that viewed general be as both beard). Venter, shave his In v. Sherbert See, (“Thou specific. e.g., Exodus 20:7 83 S.Ct. 10 L.Ed.2d thy shalt not take the name of the LORD (1963), Seventh-day member of the vain, inGod for the LORD will not hold challenged Adventist Church state unem- guiltless him that taketh his name in ployment compensation that rules condi- (“Honor vain.”); thy Exodus 20:12 father availability upon tioned the benefits her thy thy days may mother that long willingness to work under for- conditions upon the land which the LORD thy God bidden her ac- religion. Court thee.”). giveth knowledged prohibition that “the against Furthermore, Saturday labor is a basic tenet the RFPA definition of the “substantially creed, appears burden” Seventh-day upon Adventist to create based some tension between state and federal religion’s interpretation Holy Supreme law. The United States Court Bible.” Id. n. 83 S.Ct. 1790. has against making religious cautioned in- Furthermore, religious dietary laws terpretations in the First con- Amendment appear qualify would specific tenets. Smith, See, e.g., text. U.S. Bitner, (3d Williams 455 F.3d 186 (“Repeatedly many S.Ct. 1595 dif- Cir.2006), assigned a Muslim inmate contexts, ferent we have warned duty disciplined kitchen was refusing to for presume courts not determine must to the in aid others the consumption pork. of place of a particular belief in a religion or (“He Citing the Koran you has forbidden plausibility claim.”); the religious of a id. swine”) ... the of Chapter flesh and Elev- 886-87, (“It S.Ct. is no more Testament, en of Leviticus in the Old appropriate judges for determine to the handling Williams averred that and serv- ‘centrality’ of religious ap- beliefs before pork ing would religious violate his faith. plying ‘compelling a interest’ test in the 187. Our court that “prison held field, free exercise than it would accommodate, officials respect must and ‘importance’ them to determine the of practicable, when a Muslim inmate’s reli- applying ideas before ‘compelling the in- gious regarding prohibitions beliefs on the in field.”); terest’ test speech the free handling pork” of and affirmed the denial Thomas v. Review Bd. the Em- Indiana qualified immunity. Id. at 194. See Div., 715, ployment Sec. Horn, also DeHart v. 390 F.3d 272-75 (1981) (“Courts S.Ct. 67 L.Ed.2d 624 Cir.2004) (3d (discussing a pris- Buddhist should religious not undertake to dissect Religious oner’s Use Land and Institution- beliefs ... because [the believer’s] beliefs alized Persons Act upon claim based his are not with clarity articulated the diet). request special for a precision that a sophisticated person more At the other spectrum end the are might employ.”); id. at 101 S.Ct. 1425 (“Courts claims similar to Parents’. These claims scriptural are not arbiters of in- general cite more obviously terpretation.”). and less mani- Additionally, Religious Nevertheless, usage given normal Persons and Institutionalized Land Use term, it is difficult to see that Parents §§ 2000cc to (“RLUIPA”), 42 U.S.C. Act specific pro- have a tenet that would cited to 2000cc-5, a court de- permit “does not and discre- reporting requirements hibit practice the belief or termine whether their tionary review of chil- school district to, by, or central a ‘compelled question is ” Instead, they progress. educational dren’s Washington religious system of belief.’ general, impor- but nonetheless reference Cir.2007) (3d Klem, see, tant, tenets, Luke religious e.g., 20:25 2000cc-5(7)(A)). (quoting U.S.C. (“Then things that render to Caesar Nevertheless, Pennsylvania General Caesar’s, things to God the that are of “sub- statutory definition Assembly’s (“Be God’s.”); 2 Timothy diligent 2:15 require to stantially appears burden” God.”), present yourself approved to to alia, into, inter whether inquire courts to local have no assert that school districts person’s a activity is fundamental an a authority to conduct limited review of compelled person whether a progress. their educational In children’s religious specific a tenet their to violate addition, under fourth definition RFPA’s (defin- §Ann. burden,” 71 Pa. faith. See Stat. “substantially party a must agency “an substantially ing specific burden establish a nexus between the ten- [djenies violation, a a person rea- a action which et nexus compelled engage in activities that not established here. opportunity sonable Parents have reli- person’s fundamental which are Furthermore, the inconsistencies Par- expression ejompels conduct or gion [or depositions, briefs complaints, ents’ person’s of a specific tenet which violates appellate argument suggest oral diffi- faith.”).42 a violation of Arguably, (as specific tenet culty identifying substantially burden general might tenet tenet) general and its opposed to attend- But was one’s faith. complaints, consequences. ant their Assembly Pennsylvania General what the court, depo- the district and some briefs to statutory language shifts proscribed. testimony, “spe- sition asserted establishing compelling burden juris- cific that the state “lacks tenet” means to the and least restrictive interest education, over children’s diction” only of a state actor after violation i.e., no level would be review tenet, something which must mean specific Opp’n Br. to permissible.43 Parents See noted, As 9-10, 14, from a tenet. general Apr. different at Mot. Summ. J. Def.’s because, striking the is especially argument, dilemma But at oral Parents im- 2006. believer, might of the violation of their al- plied in the view the that asserted “tenet” very substantially non-discretionary their general may a tenet well low review of home programs. See Parents Re- faith. education religious burden one’s also noted, religious activity Ridley Pennsylvania but is not a fundamental of 42. Park the it As hospital may the third def- Court examined a a be built to Commonwealth church because "substantially of burden” —"denies inition satisfy Id. that mission.” person opportunity engage in a reasonable to per- to the which are fundamental activities clear, Although entirely it I under- is not religion” that while concluded son’s —and argument mean that Parents' to stand carrying daycare the Church’s "aided in out specific consequence of their asserted natural mission, is a fundamental religious not [it] jurisdiction no that the state has over tenet is Park, Ridley activity religious of a church.” home-schooling. ministering example, "For 920 A.2d mission, religious to can flow from the sick 260 (“Parents Verner,

ply do not contend that test. Br. Sherbert See Sherbert v. 398, 1790, may U.S. S.Ct. L.Ed.2d 965 government establish (1963). rule, this if government Under govern standards to home education. substantially person’s burdened a constitu Rather, objection is Parents’ core rights, tional free exercise then it was religious their beliefs forbid them justify the burden with a com submitting from pelling proof state interest and with of discretionary their children to the re- the least restrictive employed. means was official.”). a governmental view of itYet 402-04, Id. at 83 S.Ct. 1790. See also problematic interpretation whether this of Jimmy Swaggart v. Ministries Bd. “non-discretionary” review would amount Equalization California., 493 U.S. any review at all. 384-85, S.Ct. L.Ed.2d 796 upon plain language Based (1990) (“Our cases have established that RFPA, prove by have failed to Parents inquiry ‘the free exercise asks whether convincing they clear and evidence that government placed has substantial bur likely have compelled been or will be com- den on the of a observation central reli pelled to specific violate a tenet of their so, and, gious practice belief or if whether Accordingly, faith. can- compelling governmental justi interest not sustain their cause of action under ” (quoting fies the burden.’ v. Hernandez Pennsylvania RFPA. Comm’r, 680, 699, 490 U.S. 109 S.Ct. (1989))). 104 L.Ed.2d 766 III. Supreme Court held that finding “specific Even the term tenet” prohibit the Free Exercise Clause did not ambiguous, RFPA to be the decision general enforcement of a neutral law of noted, would be the same. the purpose As applicability supported by a rational basis. statutory interpretation “is to ascertain Div., Employment Dept. Human Res. and effectuate the intention of the General Smith, Oregon 872, 890, 1921(a). Assembly.” 1 Pa. Cons.Stat. (1990). S.Ct. 108 L.Ed.2d 876 The 1921(c), Under section when statute’s deny Court concluded that the state could ambiguous, words are the intention of the unemployment benefits due to work-relat Assembly “may General be ascertained” ed upon employee’s misconduct based an by considering array an factors.44 religiously ingestion motivated use background historical and legisla- drug; specifically, ease, in that the cere history Pennsylvania’s tive places RFPA monial use of peyote. Declining it in context and assists interpreting test, apply the Sherbert balancing depends statute. Much of this on de- noted that “the right Court of free exercise velopment ju- of federal First Amendment does an not relieve individual of the obli risprudence Pennsyl- and its influence on gation comply with a ‘valid and neutral 1990, vania law. Prior to legislation and general law of applicability ground on the government regulation burdening (or the free proscribes prescribes) that the law con of religion subject (or exercise was to the duct that his prescribes pro- noted, include, 44. As (6) those factors but upon subjects. are not utes the same or similar "(1) limited to: necessity consequences The occasion and particular The interpreta- of a (2) (7) for the statute. The circumstances under contemporaneous legislative tion. The (3) (8) which it was enacted. The history. Legislative mischief to be and administrative in- (4) (5) object remedied. terpretations to be attained. of such statute.” 1 Pa. Cons. law, any, including 1921(c). The former if § other stat- Stat.

261 scribes).’” 879, governments45 both the federal and state Id. at 110 S.Ct. 1595 Lee, “substantially burden[ing] person’s a from v. 455 U.S. States (quoting United religion” except of the 1051, through exercise 3, 71 L.Ed.2d 252, 102 S.Ct. 263 n. furthering of a (1982)). least means Thus, restrictive progeny and its 127 Smith § 42 compelling interest. U.S.C. 2000bb- general proposition a the “establish 1997, 1. the Supreme In Court struck applica- general neutral and of law that is the applied down RFRA to states46 a justified by compelling bility need not be scope RFRA because exceeded the of Con if the law has governmental interest even gress’ under 5 power enforcement section partic- burdening the incidental effect of the Fourteenth Amendment. Boerne practice.” Church the religious ular Flores, 507, 536, P.F. 521 U.S. 117 S.Ct. Hialeah, Aye, Inc. v. 508 Lukumi Babalu (1997). 2157, 138 L.Ed.2d 624 RFRA 2217, 520, 531, 124 L.Ed.2d 113 S.Ct. U.S. “congruence proportionality lacked a Smith). (1993) (citing 472 injury prevented to be or between religious The Smith Court noted adopted remedied and the means to that constitutionally re- exemptions, while 520, 529-36, Id. at 117 S.Ct. 2157. end.” through politi- be created quired, could Boerne, part City In a reaction to Smith, 890, 494 110 process. cal U.S. Congress Religious enacted the Land Use (citing several state statutes 1595 S.Ct. Act, 42 and Institutionalized Persons making drug to their laws exception “an 2000cc-5, §§ 2000cc to which ad U.S.C. use”). 1993, peyote for sacramental only regulations land dresses use accepted the invitation Congress Court’s persons. religious rights institutionalized Religious Freedom Resto- by enacting 2000cc, §§ 2000cc-1. prohib RLUIPA (“RFRA”), 1488, 107 Stat. 42 ration Act governments its federal both (amended §§ 2000bb to 2000bb-4 U.S.C. imposing from on “substantial burden” 2000). sought Congress restore the exercise an institutional articulated in compelling interest test unless person ized it is least restrictive Yoder, and Wisconsin v. Sherbert furthering compelling govern means of 205, 1526, (1972), 15 92 S.Ct. 32 L.Ed.2d § mental 42 interest. U.S.C. 2000cc-1. guarantee application its all “and Also, Pennsyl several states in addition to of religion where free exercise cases passed vania their own freedom substantially burdened.” U.S.C. protection legislation.47 restoration or § Applicable to “all Federal and 2000bb. 6, law,” 103-141, Although among § No. there are differences Pub.L. State (1993), religious pro- federal and state prohibited RFRA various Stat. against At time "Gov- RFRA continues to be enforced of enactment 46. branch, depart- government. was as "a v. Centro ernment” defined federal See O Gonzales ment, (or agency, instrumentality, Vegetal, Espirita official Uniao do Beneficente law) person acting other under color U.S. 126 S.Ct. 163 L.Ed.2d States, State, United or subdivision of regulations by (applying RFRA 103-141, 5,§ Pub.L. No. 107 Stat. State.” government the Controlled Sub- federal under (1993). amended, As “Govern- Act). stances branch, department, as "a ment” is defined 41-1493; §§ Ann. Conn. See Ariz.Rev.Stat. (or instrumentality, agency, and official other 1b; § Gen.Stat. 761.05; 52-57 Fla. Stat. 761.01 to law) acting person the Unit- under color of §§ 73- Idaho Code Ann. 73-401 to States, entity.” 42 U.S.C. ed a covered 35/99; 404; Comp. Mo. Ill. Stat. 2000bb-2(l). entity 35/1 "Covered means 1.307; §§ Columbia, & N.M. Stat. Ann. Stat. 1.302 the Commonwealth of District of 28-22-5; Rico, §§ to Okla. Stat. tit. 51 28-22-1 territory posses- and each and Puerto 258; §§ §§ 251 to R.I. Gen. Laws 42-80.1-1 § Id. of United States.” 2000bb- sion 42-80.1-4; §§ to S.C.Code Ann. 1-32-10 to 2(2). 262 contain, statutes, general applicability) imposes most at an

tection inciden- core, tal by placing and burden some level indi- the same fundamental structure on activity. rect costs an individual’s They purpose. recognize that neutral laws this, Recognizing legislatures sought have general applicability may reli- of burden a protecting balance between free exercise in- gious significantly as laws exercise religion preserving po- of and an effective to interfere with exercise. tended power. lice government, The federal statutes, Pennsylvania’s federal Pennsylvania, and several other states RFPA, majority a the state statutes substantiality have identified a threshold acknowledge government not also need as the tipping point requiring height- justify every having action some effect on justifications ened for governmental ac- statutes, religious exercise. Under those Furthermore, by requiring tion.49 proof only trigger height- substantial burdens a by “substantial burden” clear and scrutiny.48 ened RFPA’s four definitions evidence, convincing Pennsylvania appears “substantially emphasize burden” have a higher to set than threshold other importance this threshold. See 71 Pa. religious restoration Compare statutes. § con- (“significantly Stat. Ann. §§ 71 Pa. Stat. Ann. (requiring inhibits”; “significantly strains or cur- convincing “clear and of sub- evidence” tails”; ... opportuni- “denies a reasonable burden), § stantial with U.S.C. 2000ec- ty to engage activities ... fundamental 2(b) (“plaintiff shall bear the burden of person’s to the religion”; spe- “violates a on persuasion whether law (including faith.”) of a person’s religious tenet cific regulation) or government practice ... added). (emphasis substantially burdens the plaintiffs exer- state, In our modern regulatory virtual- Warner, of religion”), cise 887 So.2d at (“[T]he all ly legislation (including neutral plaintiff laws bears the initial bur- 1-32-60; Tex. Civ. forfeiting Prac. & Rem.Code Ann. generally benefits otherwise avail- 110.012; §§ §§ 110.001 to Va.Code Ann. 57- able abandoning to other inmates versus 57-2.02; §§ to1 Utah Code Ann. 63L-5-101 precepts religion one of the of his in order 63L-5-403; I, see also Ala. Const. benefit; Art 2) government receive OR the Pennsylvania § 3.01. The RFPA became effec- puts pressure substantial on an adherent Missouri, tive December Utah substantially modify his behavior Virginia passed legislation after 2002. violate his beliefs. Klem, (3d Washington v. modify 48. Alabama and Connecticut do not Cir.2007). Religious Under the Florida Free- I, ("Gov- § "burden.” Ala. Const. Art 3.01 Act, dom Restoration "a substantial burden ernment person's shall not burden a freedom religion on free exercise is one that religion....”); Conn. Gen.Stat. 52-571b compels either adherent to en- ("The person's shall burden a gage in religion conduct that his forbids or Missouri, religion....”). exercise of New engage forbids him to in conduct that his Mexico, prohibit gov- and Rhode Island Raton, religion requires.” Warner v. Boca "restricting] person’s ernment from free (Fla.2004). plaintiff 887 So.2d "A 1.302; religion.” exercise of Mo. Ann. Stat. governmental regulation who claims that a 28-22-3; §§ N.M. Stat. Gen. R.I. Laws 'prove constitutes substantial burden must §§ 42-80.1-3. governmental regulatory mechanism practice burdens the adherent’s of his or her illustrate, RLUIPA, 49. To purposes for the religion pressuring him or her to commit recognize we that a "substantial ex- burden” religion an act by prevent- forbidden ists where: ing engaging him or her from conduct or 1) a having religious experience follower is forced to choose between which the faith " following precepts (citations omitted). of his mandates.’ regulation that a consti- showing den of ”), Diggs v.

tutes burden.... a substantial Ill.Dec. Snyder, Ill.App.3d (requiring, 775 N.E.2d Religious Res- under Illinois Freedom Act, make “to a threshold plaintiff toration burden). substantial showing” of noted, spe- not As Parents have cited prevent adherence to cific that would tenet requirements or dis- reporting prohibit District review of their cretionary School Instead, progress. children’s educational they important, but reli- general, reference support claim that

gious tenets to authority have no local districts school review of their home edu- conduct limited interpreta- a broad cation Such programs. would “specific tion the term tenet” out of appear “specific” read the statute. occasion, necessity, and purpose support finding, not RFPA do evidence, Par- convincing clear compelled likely or will be com- ents are specific tenet of their pelled to violate Accordingly, can- religious faith. cause of under prevail on their action RFPA. Pennsylvania America, STATES UNITED Plaintiff-Appellee, MOSES, Defendant- Kwa Covonti Appellant. No. 07-4508. of Appeals, States Court United Fourth Circuit. May Argued: Sept. Decided:

Case Details

Case Name: Combs v. Homer-Center School District

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 21, 2008

Citation: 540 F.3d 231

Docket Number: 06-3090, 06-3091, 06-3092, 06-3093, 06-3094, 06-3095

Court Abbreviation: 3rd Cir.