Peter DURO, Appellee, v. DISTRICT ATTORNEY, SECOND JUDICIAL DISTRICT OF NORTH CAROLINA, Appellant, North Carolina School Boards Association, Amicus Curiae.
No. 82-1806.
United States Court of Appeals, Fourth Circuit.
Argued March 8, 1983. Decided July 14, 1983.
712 F.2d 96
REVERSED AND REMANDED.
Andrew A. Vanore, Jr., Raleigh, N.C. (Edwin M. Speas, Jr., Sp. Deputy Atty. Gen., Raleigh, N.C., on brief), for appellant.
George Daly, Charlotte, N.C. (Charles E. Craze, Gibbs & Craze, Cleveland, Ohio, Wendell Hutchins, Hutchins, Cockrell & Newmann, Plymouth, N.C., on brief), for appellee.
George T. Rogister, Jr., Kim C. Wetherill, Tharrington, Smith & Hargrove, Raleigh, N.C., on brief), for amicus curiae N.C. School Boards Ass‘n.
Before HALL and SPROUSE, Circuit Judges, and BUTZNER, Senior Circuit Judge.
K.K. HALL, Circuit Judge:
Peter Duro (Duro) initiated this action against the District Attorney of the Second Judicial District of North Carolina (D.A.) alleging that his religious beliefs were infringed by the North Carolina compulsory school attendance law,
I.
Duro, his wife and six children, five of whom are now of schoоl age, have resided in Tyrrell County, North Carolina since January, 1981. Duro and his wife are Pentecostalists. This religion does not require that children be taught at home; in fact, the majority of children whose parents are members of the Pentecostal Church, which the Duros attend, are enrolled in a public school. Notwithstanding this, Duro refuses to enroll his children in a public school or the only available nonpublic school, Cabin Swamp Christian School, operated by the Church of Christ.
According to Duro, exposing his children to others who do not share his religious beliefs would corrupt them. In particular, Duro is opposed to what he terms the “unisex movement where you can‘t tell the difference between boys and girls and the promotion of secular humanism....” Furthermore, Duro objects to the use of physicians and refuses medical attention for all physical ailments because he believes the Lord will heal any problem. Because of these beliefs, the Duro childrеn are taught in their home away from any “non-Christian beliefs and actions.” However, despite Duro‘s concern that his children be sheltered from corrupting influences, he admits that when they reach eighteen years of age, he expects them to “go out and work ... in the world.”
Although Mrs. Duro has assumed the responsibility for teaching thе children, she does not possess a teaching certificate and has never been trained as a teacher. She implements a “self-teaching” program, the Alpha Omega Christian Curriculum, which is the same method of instruction used at Cabin Swamp Christian School. Duro himself does not participate in the instruction of the children.
On February 10, 1981, Duro was charged with four counts of violation of the North Carolina compulsory school attendance law, which requires that children between the ages of seven and sixteen must attend school.
II.
The district court relied heavily upon Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), in holding that North Carolina‘s compulsory school attendance law was unconstitutional, as it applied to Duro. In Yoder, the Court held that there are two issues which must be considered in cases such as this: (1) whether a sincere religious belief exists, and (2) whether the state‘s interest in compulsory education is of sufficient magnitude to override the interest claimed by the parents under the Free Exercise Clause of the First Amendment. The Court recognized that generally a state has a compelling interest in compulsory education, in order to “prepare citizens to participate effectively and intelligently in our political system” and to “prepare individuals tо be self-reliant and self-sufficient participants in society.” Id. at 221, 92 S.Ct. at 1536. The Court employed a balancing process between the state‘s interest in compulsory education on one hand, and the religious beliefs of parents regarding the upbringing of their children on the other hand.
The district court found that Duro, like the parents in Yoder, expressed a sincere religious belief1 that school enrollment
The facts in the present case are readily distinguishable from the situation in Yoder. In that case, Amish parents were convicted of violating Wisconsin‘s compulsory school attendance law by refusing to send their children to public or private school after they had graduated from the eighth grade. The Court, in reversing the parents’ convictions and holding that they had a valid First Amendment defense to the prosecution, closely examined and scrutinized the unique nature of the Amish community. The evidence in Yoder revealed that the Amish children attеnded public schools for the first eight grades, following which the Amish provided informal vocational education to prepare their children for life in their rural self-sufficient community. The Court stressed the fact that for almost 300 years the Amish society had not altered their lifestyle, which was centered around a separate agrarian community away from “worldly” influence. Because the Court found that secondary school education emphasizes “intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success and social life with other students,” it was held to be contrary to the Amish beliefs and way of life. Id. 406 U.S. at 211, 92 S.Ct. at 1531. Thus, thе Court concluded that requiring Amish children to be exposed to such influence would pose a threat of undermining the entire Amish community and religion. Therefore, in view of the unique facts and circumstances associated with the Amish community, the Court held that Wisconsin‘s interest in education was not so compelling as to override the sincere religious beliefs of the Amish.
The Duros, unlike their Amish counterparts, are not members of a community which has existed for three centuries and has a long history of being a successful, self-sufficient, segment of American society. Furthermore, in Yoder, the Amish children attended public school through the eighth grade and then obtained informаl vocational training to enable them to assimilate into the self-contained Amish community. However, in the present case, Duro refuses to enroll his children in any public or nonpublic school for any length of time, but still expects them to be fully integrated and live normally in the modern world upon reaching the age of 18.
Desрite North Carolina‘s deregulation of nonpublic education,2 we disagree with the district court that the state has abdicated its interest in the quality of education received by students in nonpublic schools. North Carolina continues to impose compulsory attendance requirements on all religious and nonpublic schools and further, requires that attendance and disease immunization records be maintained for all pupils. The schools are also subject to reasonable fire, health and safety inspections by public authorities.
III.
Wе find, therefore, that this case is factually distinguishable from Yoder. Despite Duro‘s sincere religious belief, we hold that the welfare of the children is paramount and that their future well-being mandates attendance at a public or nonpublic school.4 Furthermore, we conclude that North Carolina has demonstrated an interеst in compulsory education which is of sufficient magnitude to override Duro‘s religious interest. Accordingly, the judgment of the district court is reversed.
REVERSED.
SPROUSE, Circuit Judge, concurring:
I concur in my colleague‘s excellent opinion. If the issues were ones of first impression, I might completely agree, but I feel the majority of the Supreme Court in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), has established a path from which at times the majority strays.
The majority opinion in Yoder categorized two legitimate state interests in the education of children: [1] to prepare [its] citizens to participate effectively and intelligently in our open political system ... [and] ... [2] [to] prepare [its citizens] to be self-reliant and self-sufficient participants in soсiety. Id. at 221, 92 S.Ct. at 1536. Justice White, in a concurring opinion joined by Justices Brennan and Stewart, said that in addition to those interests recognized in the majority opinion, the state has a legitimate interest “in seeking to develop the latent talents of its children [and] in seeking to prepare them for the life style that they may later choоse....” Id. at 240, 92 S.Ct. at 1545. Justice Douglas, the single dissenter, would have held that expansive constitutional rights attach directly to the children and balance in their favor against the First Amendment freedom-of-religion rights of their parents.
My problems arise from the following portions of the panel majority‘s opinion: In footnote 3, the majority statеs
In addition to the mandates of the Supreme Court in Yoder, we find that our chief consideration must be the welfare of the Duro children. When we examine their well-being, along with their state constitutional right to an education, we conclude that the children‘s right to an education that will prepare them for their future is paramount. Article 1, § 15 of the North Carolina Constitution expressly рrovides that, “[t]he people have a right to the privilege of education and it is the
duty of the State to guard and maintain that right.”
In the final paragraph of its opinion, the panel majority concludes:
We find, therefore, that this case is factually distinguishable from Yoder. Despite Duro‘s sincere religious belief, we hold that the welfare of the children is paramount and that their future well-being mandates attendance at a public or non-public school. Furthermore, we conclude that North Carolina has demonstrated an interest in compulsory education, which is of sufficient magnitude to override Duro‘s religious interest.
I concur in the above-quoted sections to the extent they may be read as saying that North Carolina has a legitimate interest in the welfare and future well-being of the Duro children.1 While recognizing that this may be a departure from the Yoder majority opinion, I believe such a consideration is appropriate under the facts of this case because of the young ages of the children involved—most of them were of grade schоol age, unlike the children in Yoder who had received eight years of formal education.
I must disagree, however, with two possible inferences which seem to follow from the above-quoted sections of the panel majority‘s opinion. First, the majority apparently gives weight, in balancing the state‘s interests, to a provision in the North Carolina Constitution which provides: “[t]he people have a right to the privilege of education and it is the duty of the State to guard and maintain that right.” While I applaud that state constitutional expression, North Carolina cannot argue, and we cannot consider, that such expression increases its interests in educating children as against the parents’ rights to exercise their religion freely. A state educational policy, constitutional or otherwise, simply is not added to the scales in balancing First Amendment rights. Whatever the balancing factors, they are inherent in the First Amendment itself.
Second, any possible inference from the above-quoted sections that in deciding this case we should consider the rights of the children to choose to attend school as against their parents’ religious interests, is improper. The only issue before the court is the constitutionality of a state statute which seeks to compel the Duro parents to send their children to school. The children have not asserted their rights in this case. As Chief Justice Burger noted in Yoder, courts should exercise extreme caution in approaching the delicate balance between the Freedom of Exercise clause and the state‘s vital interest in public education. At the very least, we should decline to theorize on issues which are not factually developed. The posture of this case is not different from the Yoder case in which all of the Justices, save the dissent, agreed that their case in no way involved any questions regarding the rights of the children to attend school.
K.K. HALL
UNITED STATES CIRCUIT JUDGE
Notes
It is fundamental that a child who receives proper care and supervision in modern times is provided a basic education. A child does not receive “proper care” and lives in an “environment injurious to his welfare” when he is deliberately refused this education, and he is “neglected” within the meaning of [the statute].