*1 In the Matter of the WELFARE W.K., T.K. and

OF Children.

No. C1-91-309. Appeals Minnesota.

Sept. *2 120.101,

cation (1988). We reverse and remand.

FACTS giving ap- to this proceedings rise Sibley in late 1988 when peal were initiated T.K., County sought declare the minor to appellants, protec- in need of child of (CHIPS) meaning within the tive services 2a(3) (1988).1 260.015, subd. of Minn.Stat. § found, The trial court so but allowed the physical custody of T.K. to remain with establishing appellants subject to their compliance program home education (1988). Appel- with Minn.Stat. 120.101 program, lants did establish such T.K., taught mother and appellant W.K., child, subjects younger later a 120.101, subd. 6. mandated Minn.Stat. § subjects included: These (1) including communication skills basic Cowell, Cowell, Gay- H. Miller & William literature, reading writing, and fine and lord, appellant parents. for arts; Schauer, Atty., Sibley County David E. science; (2) and mathematics Winthrop, respondent State. (3) including history, geog- social studies Jones, Nelson, Douglas Nelson & G. government; and raphy, and Ltd., Henderson, for children. (4) physical and education. health Grunzke, guardian li- Betty Gaylord, ad distributed Mother used materials Id. tem. Publishers, religious pub- Rod and Staff ' lishing house. RANDALL, and decided Considered 120.101, subd. 8 SCHUMACHER, Minn.Stat. HUSPENI, P.J., nationally norm-referenced T.K. to take a JJ. examination, and standardized achievement percentile. She perform above the 30th OPINION Test, the Iowa Basic Skills took one half of HUSPENI, Judge. her to take refused to allow but W.K., remainder, stating that wished parents of T.K. and Appellants, in their home administered have the test challenge trial court’s determination the school protective rather than at school. in need of that the children were test agreed to conduct the (CHIPS) to be removed and needed services testing, cit- home, any refused to Minn.Stat. pursuant the home from When W.K. ing religious beliefs. (1988). The and 260.191 CHIPS §§ too, he, became sub- years seven appellants’ re- reached resulted from of the stat- testing requirements ject to the children to standard- fusal to submit testing for parents refused ute. When the testing required under the home edu- ized unwilling provide 2a(3), or provides: is unable custodian Section that care. protection or services" "Child in need protection or a child who is in need of means because the child: services * * * (3) * necessary education is without * * guardian, parent, the child’s because

him, him a child The state has a trial court found to be maintaining populace, which an educated protective services. need peace safety the citi- furthers appeal is order from which this zens of the state. taken, custody court transferred the trial *3 outweighs The state’s interest the bur- Sibley County of T.K. and W.K. to Social imposed parents’ religious on den Services, finding: beliefs. parents sincerely believe that “send- The compulsory by The education public school ing children to would testing for home- standardized expose them to eternal damnation for school children of who are not law.” violating God’s teach, technically qualified to is the least parents] also believe that [The carrying restrictive means of out they paro- “send their children to can not interest. state’s organized religion chial school because stayed The trial court removal of T.K. personal relationship interferes with pending and W.K. from themselves as individuals and between appeal. by God and were therefore fearful that participating organized religion they might worshiping be a false God ISSUE therefore violate God’s law.” Does the trial court’s removal of the parents sincerely it believe [T]he children from the home for refusal to take against religion

would allow be a standardized norm-referenced examina- their children to take the standardized tion as mandated Minn.Stat. § test mandated [the statute]. I, violate article section 16 of the nationally the children were to take a [I]f Minnesota Constitution? norm-referenced standardized achieve- examination, perform they ment ANALYSIS percentile. above the 30th guardian and the ad litem The best interests children would urge this court to declare that the statute by placing physical be served them in the requiring the children to take a standard- Services, custody Sibley County of Social ized norm-referenced examination consti- so that the state can be assured that impermissible infringement tutes an receiving requisite are the minimal edu- guaranteed by their freedom of conscience required by cation Minn.Stat. § [120.101]. I, article section 16 of the Minnesota Con- safety endangered

The children’s is not challenge stitution.2 Because the to consti- home, by being at their future but edu- tutionality brought under the Minnesota in jeopardy. cation is Constitution, not the United States Consti- court, effect, tution,3 begin analysis, found we our as did the constitutional, court, concluding by examining 120.101 to be trial the decision of the Supreme that: Minnesota State Const, I, Arkansas, provides: Murphy 2. Minn. art. § 16 and failed. In v. State (8th Cir.1988), F.2d 1041-43 the court right every worship man to God ac- held: cording to the dictates of his own conscience * * * stipulated infringed any have that the [T]he shall never be nor shall requirements of the Arkansas law interfere rights control of or interference with the ** *; Murphys' sincerely religious held be- permitted liberty with the conscience but the * * * beyond dispute hereby liefs. is settled [I]t of conscience secured shall not be so * * * the state has a construed as to excuse acts of licentiousness ensuring being ade- that all its citizens are justify practices peace or inconsistent with the * * * end, quately educated. In the we be- safety or of the state. means less restric- lieve that state has no Challenge by declaratory judgment to an Ar- tive than its administration of achievement being prop- kansas statute similar the statute here was tests to ensure that its citizens brought grounds erly educated. United States Constitution

Q1 (Minn.1990) existed, charges, Hershberger, holding 462 N.W.2d 393 and dismissed the II). proffered (Hershberger that the alternative the Am- 6 adequately ish accommodated both the II, noting Hershberger in addition to insuring state’s safety and the the Minnesota freedom of conscience Amish’s beliefs. Id. at 399. “distinctively stronger” than guarantee is religion granted Thus, freedom of analysis Hershberger our II in- constitution, supreme federal court ex- ques- dicates that we must address three plained: tions in an effort to determine whether

Only government’s peace interest in 120.101 violates the constitu- against safety or acts of licentious- rights Const, tional have under *4 imposition ness will excuse an on reli- I, First, appel- Minn. art. 16: do § gious freedom under the Minnesota Con- belief; sincerely religious lants have a held stitution. second, compelling does the state have a an education for its Id. at 397. third, citizenry; and is the norm-referenced analyzing cases under the freedom testing state, required by the supreme provision, of conscience court by least restrictive means which it can applied as framed the test to be follows: compelling tect its in education. a claimant has demonstrated a [0]nce questions We address each of these in turn. religious intended to sincere belief be 16, protected section the state should Sincerely Religious A. Held Belief required be to demonstrate that [the Respondent, through its notice of state’s cannot achieved be interest] review, urges reject this court to the trial proposed alternative means. finding court’s that have a sin (citing at 398 v. 444 Hershberger, Id. State cerely religious held that standard belief 282, (Minn.1989)(Hershber N.W.2d 288-89 testing religion. ized their violates This 7)).4 ger findings court will not disturb of fact based II, Hershberger supreme court documentary on testimonial and evidence the Amish ruled that defendant must be findings clearly unless those erroneous. granted a reasonable accommodation 52.01. find Minn.R.Civ.P. We no clear er slow-moving complying with the vehicle ror. Hershberger statute.5 Id. at 399. The II urges The state that recognized religious court freedom is position testing7 inconsistent defeats “coequal liberty” with civil Id, argument sincerely have a at Minnesota Constitution. 398. religious supreme held belief. As the court public safety court also determined that “I, Hershberger ‘[R]eligious stated in be right was a fundamental under the state acceptable, logical, liefs need not con Ultimately, constitution. Id. court sistent, comprehensible to others in or concluded that the state had not carried its showing protec merit First Amendment burden of that no less restrictive der to ” Id., (emphasis aiding public safety alternative means of tion.’ 444 N.W.2d at 286 certiorari, 522, allowed, (1988). granting 4. After the United States Su- subd. 1 The statute also as alternative, triangular sign preme Hershberger Court vacated and remanded an for a black light tape Employment red reflective affixed to the rear of the I for reconsideration in Div., Oregon vehicle. Id. Both alternatives offended the Am- Dep’t Human Resources 872, 1595, Smith, religious prohibition against using worldly ish U.S. 110 S.Ct. 108 L.Ed.2d 494 — symbols displaying (1990). loud colors. Hershber- Hershberger, Minnesota v. U.S. 876 I, -, 1918, ger 444 N.W.2d at 284. 110 S.Ct. L.Ed.2d 282 109 agreed 6. to utilize white reflective The Amish moving directed that all vehicles 5. The statute tape and red lantern to warn other drivers. a per than miles hour were slower 25 triangle display yellow-orange "a fluorescent agreed with a dark red reflective border and be mount- first to allow in their home; completed portion not less of the examina- ed so as to be visible from distance of T.K. testing. appellants refused all than 600 feet to the rear.” Minn.Stat. 169.- tion before legislature general to establish added) v. Review Bd. (quoting Thomas system public schools. Div., and uniform 450 U.S. Employment Sec. Indiana 1430, 714, 1425, Const, 707, 67 L.Ed.2d 101 S.Ct. XIII, In order to Minn. art. (1981)). Minnesota Constitution mandate, the implement the constitutional protection higher degree of affords an even compulsory attend- legislature enacted amendment of the Unit- does the first than attempts statute ance statute.8 This Therefore, consist- ed Constitution. States child in Minnesota re- ensure that each required here. ency is not ceives an education. hearing, father At the October C. Least Restrictive Alternative allowing the for not explained his reasons Under the test enunciated Hersh- test. to take the standardized II, berger we have determined both ample support to explanation gives That hold a sincere belief that “the the trial court’s Const, I, protected by Minn. art. that it would be believe and that the state has a allow their children against religion educating citizenry. interest in We now test mandated to take the standardized consider the state has borne must *5 Further, father has shown statute].” [the proving of that no less restric its burden go jail in order to willingness to to promote compelling tive means exist to its Finally, the sinc- religious beliefs. tect his citizenry. in interest an educated parents’ religious belief is illus- erity of the Recognizing religious and other that for older chil- by the removal of three trated parents reasons not all wish their children parents’ home due to the dren from the schools, public private leg- the to attend children to parents’ permit refusal to those provided the home education of islature for removal, the public attend school. Since 120.101, subd. 4. children. Minn.Stat. § consistently refused all con- parents have naturally, legislature, The wished to ensure deplore with those children. While we tact the instruction met minimum stan- consequences parent emotional to both the Accordingly, dards. it dictated that certain refusal, it child such we believe and id., subjects taught. basic must be See parents’ insistence that their supports the Further, in cases in which the subd. sincere; they in- have beliefs teaching home school teacher did not hold a price a tremendous for them. curred degree, certificate or have a bachelor’s the record, After a careful review of this we undergo a children would be in the trial cannot find clear error court’s yearly standardized norm-referenced exam- appellants’ religious be- determination Id., 8(a). progress. ination to assess lief is held. If children took the examination and the battery received a score “at or below the B. State’s Interest percentile grade level the 30th or one below performance level for children of the same dispute The do not that the age,” the statute mandates “additional compelling educating in state has a per- evaluation of the child’s abilities and recognize citizenry. We also that inter determining purpose formance for the language of the state constitution est. learning problems.” the child has that Minnesotans demonstrates value Id., 8(c). place on education: stability republican purpose form of We conclude that the of the test- of a ing requirement who are government depending mainly upon the for those students intelligence people, duty taught it at non-accredited is the home prob- responsibility vested and others that will enable them solve lems, 8. "In accordance with the Constitution, legislature learning, creatively, in the in the Minnesota and think continue XIII, legislature article section declares leading develop potential produc- for maximum purpose public that the education in Minne- tive, changing fulfilling complex and lives in help acquire knowl- sota is to edge, all individuals society." Minn.Stat. skills, positive self and attitudes toward the home as in lants’ children from progress reliably evaluate is to pursuant protective need of services compare this and to school students 260.015. While public peers progress to their 120.103 mandates additional remedies in Thus, question final private schools. taking a child the context of test and the Hersh- must answer under which we level, percentile failing to score at the 30th analysis II is whether berger rationale we can discern no under which least restrictive requirement presents the respondent should invoke harsher sanctions balancing appellants’ consti- alternative for failure to take the test than it would rights the state’s tutional with taking failing it.9 invoke con- educating its citizens. We make that we are unable to clude that time, The trial court has documented the us. on the record before thought expended it has and concern Nonetheless, matter. we are con- this testing, respon- appellants refused only upon vinced that demonstration order sought and obtained a court dent respondent compliance with all the re- removing the children found that quirements of 120.101will the Minn.Stat. § the least re- parental home was from whether, in trial court be able to determine Notwith- alternative available. strictive meet the “least re- the statute does thoughtful memo- standing lengthy means” test as set forth Hersh- strictive court, we conclude randum from the trial berger II. was, very at the this determination least, Had T.K. and W.K. tak- premature. concern. In We have an additional standardized test and scored below en the proceeding asmuch as this involves two respondent have percentile, the 30th court, *6 re statutory provisions, the trial pro- the additional been to invoke mand, requirements should assure set forth in Minn.Stat. cedures If, upon provision each have been met. procedures Those additional provi of the section 120.101 exhaustion vide, first, superintendent may the sions, respondent appellants' demonstrates inspections to determine whether make site noncompliance, the trial court continued complies with state re- the home school does, if this must then determine statute quirements. subd. 1. restrictive alterna represent the least compliance, If “school” is not in the the to the state to assure tive available give par- notice to the superintendent must education, in citizen compelling interest Id., ents, listing specific violations. therefore, is, if statute constitutional. this Next, uncorrected, go if 3. the violations section 120.101to be If the trial court finds engage finding parties must in fact the constitutional, determine it must next Id., Finally, if all else mediation. of this statute is tanta whether violation fails, may the superintendent contact deprivation of edu to the severe mount attorney may bring thus misde- county who necessary to warrant a cation we believe Id., charges against parents. meanor and removal CHIPS determination subds. 5-6. 260.015 and 260.191. See Minn.Stat. §§ 370, Wachlin, 309 Minn. re Welfare of permit refused to (1976) (court determined N.W.2d tested, the trial court did the children to be neglected parent’s due to failure child to be attempt these additional not to exhaust proper care and education provide statutory in order to determine remedies child). were an ade urge all A final observation: we school education for their chil quate home faith all explore good related to continue to dren. Rather than issue a sanction that T.K. and means to assure 120.- reasonable to the “violated” quality appel- receive an education trial court here removed W.K. tion, percen- perform finding they the 30th above of the trial court’s own that "if In view tile,” imposed the trial court nationally the sanction the children were to take a norm- appears harsher. even referenced standardized achievement examina- compels while state interest parental home. also remain failure to do so unac-

consequences of put not

ceptable. These children should only position they can receive an

in a where parental

acceptable education outside only or, alternatively, remain at home an

by sacrificing opportunity to receive They both an education

education. deserve nurturing, loving parental home.

DECISION by removing the

The trial court erred ex- from the home first before

hausting the remedies available under

compulsory education statute. and remanded.

Reversed

SCHUMACHER, Judge, concurring spe-

cially. only.

I concur the result *7 (CX- Respondents

M.H. and

91-406), (C9-91-672), SERVICES,

CARITAS FAMILY (CX-91-406),

Appellant Re- (C9-91-672).

spondent CX-91-406,

Nos. C9-91-672. Appeals Minnesota.

Sept.

Review Granted Nov.