SHERIDAN ROAD BAPTIST CHURCH v DEPARTMENT OF EDUCATION
Docket No. 73665
Supreme Court of Michigan
November 24, 1986
Rehearing denied 427 Mich 1202
426 MICH 462
Argued November 13, 1985 (Calendar No. 14).
The judgment of the Court of Appeals is affirmed by an equally divided Court.
Chief Justice WILLIAMS would hold that the interest of the state in ensuring that all teachers meet certain minimum requirements outweighs the slight burden placed on the plaintiffs’ rights to the free exercise of religion by the certification requirements. As applied, the requirements are not discriminatory and do not require adherence to a particular religious outlook. They are not violative of the Establishment Clause; nor do they lead to excessive entanglement of church and state.
- To teach in a school in Michigan, a teacher must be certified by the State Board of Education as meeting certain minimum requirements promulgated by the board. Objections to state regulations on the ground that they violate a person‘s right to the free exercise of religion are analyzed by determining whether the plaintiff‘s claims are rooted in religious beliefs; whether the regulation infringes upon the plaintiff‘s right; if so, whether any incidental burden on the right is justified by a compelling state interest in the regulation; and whether a less
obtrusive form of regulation is available to the state. Where an objection to a regulation is raised on the ground that it is violative of the Establishment Clause, the state must show that it has a secular legislative purpose for the requirement, that the regulation‘s principal, primary effect neither advances nor inhibits religion, and that it does not foster an excessive government entanglement with religion. - In this case, while the plaintiffs’ objections are premised on their religious beliefs, any minimal infringement on their right of free exercise of religion is outweighed by the compelling interest of the state in furthering the education of its citizens through competent teachers by requiring teacher certification. As applied, the certification requirements do not enable the board to discriminate on the basis of religious belief. No less intrusive method of satisfying the state‘s interest was shown. The regulations at issue have a secular purpose and do not have the primary effect of advancing or inhibiting religion. In addition, it is clear that the certification requirements do not impermissibly entangle government with religion. The state merely enforces minimum standards with regard to persons who wish to teach. Once a teacher is certified, there is no continuing relationship between the government and the churches and schools.
Justice BOYLE, joined by Justice BRICKLEY, concurring with Chief Justice WILLIAMS, would hold that at issue primarily in this case is whether the teacher certification requirement imposed by the state impinges upon the plaintiffs’ First Amendment right of freedom of religion. In evaluating free exercise claims, it must be determined whether the government has shown that an unusually important interest is at stake and that the granting of an exemption to the challenged requirement would do substantial harm to the interest. Application of the standard, at a minimum, must involve a balancing process, requiring great circumspection in weighing the state‘s legitimate social interest and the request for religious exemption.
- The Freedom of Religion Clause of the First Amendment embraces the freedom to believe and the freedom to act. The freedom to believe is absolute, but the freedom to act is subject to regulation. Where the state regulates conduct by enacting a neutral law within its power for the purpose and effect of furthering its secular goals, the statute may be valid despite an indirect burden on religious conduct unless the purpose may be achieved through less burdensome means.
- The standard for determining free exercise claims involves a balancing that countenances shifting burdens of persuasion
in proportion to the proofs admitted at trial. A mathematically certain formula cannot be created which will account for the internal evaluation of each factor and its relative weight with respect to each other factor. The essential judicial task is to evaluate the asserted conflicts between private rights and public interests to ensure that neither is compromised or destroyed. - In this case, the teacher certification requirements constitute, at most, an indirect and minimal burden on the plaintiffs’ free exercise rights, and the interest of the state is of such a high order as to override the interest for which protection is claimed. Alone, the regulation compels the plaintiffs neither to refrain from religiously motivated conduct nor to engage in conduct they find objectionable. The requirements represent a compelling state interest and a state regulation narrowly drawn to achieve the broader goal of quality education. The alternative offered by the plaintiffs does not fulfill the prophylactic goal of the state requirement to prevent children from being exposed to unqualified teachers.
Justice RILEY, joined by Justices LEVIN and CAVANAGH, would hold that the plaintiffs’ religious practice with regard to employment of teachers is protected by the First Amendment, and the regulation as applied is constitutionally suspect. The trial court found that the plaintiffs’ refusal to comply with the certification requirement is based upon sincerely held religious beliefs and that the requirement affirmatively interferes with the free exercise of those beliefs. The crucial question is whether the state established that enforcement of the requirement is essential to the fulfillment of a compelling governmental interest. It was incumbent upon the state to show that exempting the plaintiffs would unduly impair its interest in compulsory education and that enforcing the requirement is the least intrusive means by which to accomplish the objective. The state failed to meet its burden. The record firmly establishes that accommodating the plaintiffs’ religious practice with regard to the hiring of teachers will have no adverse effect on the state‘s interest in compulsory education, and that less intrusive means are available by which the state could adequately supervise and ensure the future fulfillment of the legitimate public interests underlying the compulsory education law. Establishing that the teacher certification regulation is rationally related to the state‘s interest is insufficient to demonstrate the necessity of overriding the plaintiffs’ First Amendment rights. The teacher certification employment regulation alone, however, does not violate the Establishment Clause.
Justice ARCHER took no part in the decision of this case.
Ball & Skelly (by William Bentley Ball, Philip J. Murren, and Sandra E. Wise) and Michael E. Thomas for the plaintiffs.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Gerald F. Young and Paul J. Zimmer, Assistant Attorneys General, for the defendants.
Amici Curiae:
Steven F. McDowell, General Counsel, and Lawson, Marcus & Portko (by Jeffrey R. Portko) for Catholic League for Religious and Civil Rights.
Foster, Swift, Collins & Coey, P.C. (by James A. White and William K. Fahey), for Michigan Education Association.
Miller, Cohen, Martens & Ice, P.C. (by Mark H. Cousens and Glenda L. Pittman), for Michigan Federation of Teachers, AFL-CIO.
WILLIAMS, C.J. This case involves primarily a free exercise of religion challenge based on the First, Ninth, and Fourteenth Amendments of the
Specifically, the free exercise challenge is in two parts. The first part is phrased as follows in plaintiffs’ reply brief:
To repeat: the Churches’ point is not that a certified teacher may not teach in the Churches’ schools’ [sic]; it is that restricting the freedom of churches to engaging only government-certified teachers in its school ministry is abhorrent to their Scriptural beliefs. It is not for the State to play theologian in this matter. [Emphasis in original.]
The second part involves objections to the teacher certification rules. The plaintiffs’ reply brief states:
[T]he certification rules . . . intrude upon or threaten the operation of the church-schools in their selection of their teachers . . . . [T]he rules clearly evidence reservation of the ultimate State subjective control over important aspects of the making of a teacher in areas portending deep philosophical and religious differences between the plaintiff church-schools and prevailing secular philosophies concerning education matters. See, e.g. Roth testimony supra re “skills essential to inquiry in modern society.”2
Using the balancing analysis developed by the United States Supreme Court in Wisconsin v Yoder, 406 US 205; 92 S Ct 1526; 32 L Ed 2d 15 (1972), and Sherbert v Verner, 374 US 398; 83 S Ct 1790; 10 L Ed 2d 965 (1963), we find that the state‘s interest in ensuring that all teachers have met certain minimum requirements outweighs the slight burden the regulatory scheme poses to plaintiffs’ free exercise rights. As applied, we find that the certification requirements are not discriminatory and do not require plaintiffs to adhere to any particular religious outlook. We also find that there is no Establishment Clause violation as the regulations do not lead to excessive entanglement between church and state.
We decline to reach the other issues initially raised by the plaintiffs as it appears they are no
I. FACTS
In September, 1979, the Department of Education, acting under the authority of the state‘s nonpublic school statute,
On December 6, 1980, the schools, the church pastors, members of the schools’ faculties, and parents of children enrolled in the schools filed a declaratory action in the Ingham Circuit Court, alleging that the statute which the state sought to enforce was unconstitutional on the basis of the First, Ninth, and Fourteenth Amendments of the
A six-day bench trial was held in April before Judge Ray C. Hotchkiss. At trial, it was established that Sheridan Road Baptist Church operates the Sheridan Road Christian School, and that First Baptist Church of Bridgeport operates the Bridgeport Baptist Academy. Both schools offer a kindergarten through grade twelve program. The plaintiffs were identified as the church schools, the pastors of the churches, and certain teachers at the schools and parents of students attending the schools.
In an opinion dated December 29, 1982, the trial court found that § 3 of
Plaintiffs’ application for leave to appeal to this Court originally was denied, 419 Mich 916 (1984), but, after reconsideration, leave was granted on April 5, 1985, 422 Mich 857 (1985).
II. FREE EXERCISE OBJECTION TO CERTIFICATION
A. STATE SYSTEM OF REGULATION
The Legislature has determined that teachers in all schools in the state must be certified.
It is the intent of this act that the sanitary conditions of such schools, the courses of study therein, and the qualifications of the teachers thereof shall be of the same standard as provided by the general school laws of the state.
No person shall teach or give instruction . . . in
any private, denominational or parochial school within this state who does not hold a certificate such as would qualify him or her to teach in like grades of the public schools of the state . . . .
The regulations governing teacher qualifications are promulgated by the State Board of Education and contained in the Teacher Certification Code,
- completion of at least forty semester hours in a program of general or liberal education and demonstration of an acquaintance with the substance, concepts, and methods of the principal areas of human knowledge and skills essential to communication and inquiry in modern society;
- completion of a program providing for depth in the substantive field to be taught;
- completion of twenty semester hours in education courses (including at least six hours of directed teaching);
- completion of a major of at least thirty semester hours and a minor of twenty semester hours (or for an elementary certificate completion of either a major of at least thirty semester hours or three minors of twenty semester hours each);
a bachelor‘s degree obtained from an approved Michigan college or university or an acceptable certificate issued by another state.
Under these regulations, the State Board of Education has issued thousands of provisional certificates to out-of-state college graduates, including graduates of Catholic and fundamentalist Christian schools.
B. TEST FOR ANALYZING FREE EXERCISE OBJECTIONS TO STATE REGULATIONS
The United States Supreme Court has developed a method of analyzing free exercise objections to state statutes. The following three quotations will serve as a basis for our development of a four-part test for this analysis.
The first quotation is from Wisconsin v Yoder, 406 US 215, and reads as follows:
[T]o have the protection of the Religious Clauses, the claims must be rooted in religious belief.
The second quotation is from Sherbert v Verner, 374 US 403, and reads as follows:
If therefore, the decision of the South Carolina Supreme Court is to withstand appellant‘s constitutional challenge, it must be either because her disqualification as a beneficiary [of unemployment compensation] represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant‘s religion may be justified by a “compelling state interest in the regulation of a subject within the State‘s constitutional power to regulate . . . .” NAACP v Button, 371 US 415, 438 [83 S Ct 328; 9 L Ed 2d 405 (1963)].
[I]t would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.
From these three quotations we derive the following four rules with which to analyze the instant case:
- Plaintiffs’ “claims must be rooted in religious belief.” Yoder.
- If the regulation poses “no infringement by the State of [plaintiffs‘] constitutional right[ ] of free exercise,” Sherbert, the regulations will be upheld. If the regulation is upheld for this reason, rules three and four are inapplicable.
- “[A]ny incidental burden on the free exercise of [plaintiffs‘] religion may be justified by a ‘compelling state interest in the regulation of a subject within the State‘s constitutional power to regulate . . . .‘” Sherbert.
- No less obtrusive form of regulation is available to the state. Sherbert.
1. THE RELIGIOUS NATURE OF THE CLAIMS
There is no dispute as to the religious nature of the plaintiffs’ objections to the certification requirement. The trial court found that
[p]laintiffs are members of the Fundamentalist Christian movement . . . . The fundamentalist movement believes the church to be not only a
place of worship but [a] place for instruction of the young. An outgrowth of this belief is the belief that the school is an extension of the church or a ministry of the church . . . . As fundamentalists, plaintiffs object to state regulation of their schools which they consider a mission ordained by God. They further object to the certification of their teachers, believing that the course of study required to obtain a certificate teaches a humanistic rather than a religious approach to education.
Defendants note that they agree that plaintiffs’ objections to the statute are premised on their religious beliefs.
2. BURDEN ON FREE EXERCISE RIGHTS
The churches advance two ways in which the regulations burden their religious interests. The primary objection is that “no one may carry out a teaching ministry in a church-school without a government permit to do so.” We accept plaintiffs’ claim that such licensing has an effect on their free exercise rights, and we therefore must determine whether this burden is outweighed by a compelling state interest. Second, they object to the discretion given to the state to determine whether an applicant is qualified to receive a provisional teaching certificate. The regulations require an applicant to demonstrate “an acquaintance with the substance, concepts, and methods of the principal areas of human knowledge, and skills essential to communication and inquiry in modern society.”
The other plaintiffs also testified about the burden certification posed to them. A teacher at the Bridgeport Baptist Academy testified at trial that her rights would be infringed upon if she were forced to comply with the state certification requirements since attending courses taught at a state-approved school would force her to violate the Biblical command not to listen to instruction causing one to err. She stated that if compliance with the statute were ordered, she would be unable to fulfill her religious calling to teach. Parents of children attending the church schools stated that they would not want their children taught by those who were themselves taught other philosophies. For reasons discussed later, we do not find these claims to be supported by the record.
3. COMPELLING STATE INTEREST IN EDUCATION
In Sherbert, 374 US 403, the United States
There is no doubt that a state has a compelling interest in the education of its citizens. In Pierce v Society of Sisters, 268 US 510, 534; 45 S Ct 571; 69 L Ed 1070 (1925), the Court, while ruling that a state cannot compel all students to be educated in public schools, noted that
[n]o question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.
In Brown v Topeka Bd of Ed, 347 US 483, 493; 74 S Ct 686; 98 L Ed 873 (1954), the Supreme Court again emphasized the magnitude of the state‘s interest:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child
may reasonably be expected to succeed in life if he is denied the opportunity of an education.
Finally, in Central Dist No 1 Bd of Ed v Allen, 392 US 236, 245-247; 88 S Ct 1923; 20 L Ed 2d 1060 (1968), the Supreme Court explicitly acknowledged the state‘s interest in private schools:
[A] substantial body of case law has confirmed the power of the States to insist that attendance at private schools, if it is to satisfy state compulsory-attendance laws, be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction. . . . [I]f the State must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function.
Michigan particularly has a significant and deeply rooted interest in education.
Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.
Governor James Blanchard elaborated on this in his January 18, 1984, State of the State address:
For decades, the promise of education has been the ladder of opportunity in this state. Hard-working people, honest people, lived here or came here, knowing that they themselves could earn a decent living working with their hands—but even more important, that their children could find an even better future working with their minds because of
Michigan‘s fine schools and colleges and universities.
See also Michigan Female Seminary v Secretary of State, 115 Mich 118, 120; 73 NW 131 (1897) (“It has always been the policy of this State, as indicated by the provisions of its Constitution and a long line of legislative enactments, to encourage the cause of education.“).
It is clear that Michigan‘s interest in education is long-standing and of the highest importance.
A compelling state interest in education does not necessarily justify all forms of educational regulation. For example, in Yoder, 406 US 236, the United States Supreme Court balanced the religious claims of the Amish against the state‘s interest in requiring compulsory education until age sixteen. The Court concluded that despite the state‘s “admittedly strong interest in compulsory education,” it had failed to demonstrate with sufficient particularity how its interest would be adversely affected by granting an exemption to the Amish. The Court placed great emphasis on the adequacy of the Amish vocational education alternative to secondary education, the fact that the Amish children were not going to live in society at large, but in a closed, farming society, and the fact that compulsory high school education could ultimately destroy the Amish community. Yoder, 406 US 212. None of these factors are relevant in this case, and, more importantly, the state‘s interest here is not how much time should be spent in school, but the qualifications of the teachers themselves.
The state‘s interest in education necessarily extends to an interest in teachers because a primary and vital ingredient to a good education is good
I am not willing that this discussion should close without mention of the value of a true teacher. Give me a log hut, with only a simple bench, Mark Hopkins on one end and I on the other, and you may have all the buildings, apparatus and libraries without him. [Address to Williams College Alumni, New York, December 28, 1871. Bartlett‘s Familiar Quotations (14th ed), p 741a.]
Michigan has long recognized the importance of qualified teachers. In 1843, O. C. Comstock, Superintendent of Public Instruction, stated:
Eligible teachers are all-important. This fact is now more deeply and generally impressed on the public mind than formerly . . . . It was once imagined that almost every man of a competent education could teach a school. But to this proposition there are many exceptions. It does not follow that because a man has received a liberal education, he is therefore a lawyer or physician . . . . And, by parity of reasoning, it is plain that an acquaintance with general literature and science does not, of necessity, prepare one for the arduous but delightful business of educating the underlying mind. Such preparation is chiefly derived from the study of the science and art of teaching. [Jackson, State Control of Public Instruction in Michigan, pp 154-155 (1926) (quoting O. C. Comstock).]
Therefore, to the extent that certification of teachers furthers education, it can be considered a compelling state interest. Those certification requirements which involve gaining expertise in a particular substantive field, taking classes in a program of general or liberal education, student teaching, and taking a few basic courses in educa-
4. STATE‘S INTEREST OUTWEIGHS THE MINIMAL INFRINGEMENT
While complying with the certification requirements may mean that schools will have a smaller pool of applicants from which to select their teachers, there is no evidence that acceptable, certified people are not available. Parents have stated that they have no religious objection to having their children taught by certified teachers as long as they are also religiously acceptable to them. Religious school teachers may have to receive more training in order to become certified, but the regulations do not require anyone to attend courses taught from a perspective contrary to their beliefs. The teachers can fulfill all the state certification requirements while attending either a religious or nonreligious institution. For these reasons, we find the infringement on free exercise rights is minimal and is outweighed by the state‘s interest.
Other state courts confronted with religious objections to the state certification of teachers have found for the state. In State v Rivinius, 328 NW2d 220 (ND, 1982), cert den 460 US 1070 (1983), the North Dakota Supreme Court balanced the state‘s interest in education against parents’ right to educate their children in the religion of their choice. The court found that the state law, which
5. THE REGULATIONS HAVE NOT BEEN APPLIED IN A DISCRIMINATORY MANNER
The plaintiffs’ second allegation is that the certification regulations give the board the power to withhold certificates on the basis of an applicant‘s religious beliefs. Those portions of the regulations, discussed in part II(B)(2), which give the board the discretion to grant or withhold a certificate on the basis of vague and subjective criteria certainly could be applied in a discriminatory manner. Such
6. NO LESS INTRUSIVE METHOD IS AVAILABLE TO THE STATE
We are also satisfied that there is no less intrusive method by which the state could satisfy its interest in the education of its citizens. The only alternative which has been proposed is standardized testing of private school students. This is an inadequate substitute because deficiencies in teaching would be discovered only after the damage has occurred. State v Shaver, 294 NW2d 883 (ND, 1980). Further, we are not persuaded that testing would guarantee less intrusion by the state into the functioning of the private schools. See, e.g., Rivinius, supra, 328 NW2d 229. See also Johnson v Charles City Community Schools, 368 NW2d 74, 79 (Iowa, 1985), cert den 474 US 1033; 88 L Ed 2d 574 (1985) (“[w]hatever limitations are imposed on the state‘s general right and duty to see to the education of its youth, the right extends beyond occasional testing“).
In Lemon v Kurtzman, 403 US 602, 612; 91 S Ct 2105; 29 L Ed 2d 745 (1971), the Supreme Court stated that in order to survive an
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster “an excessive government entanglement with religion.” [Citations omitted.]
See also Grand Rapids School Dist v Ball, 473 US 373; 105 S Ct 3216; 87 L Ed 2d 267, 277 (1985) (“We therefore reaffirm that state action alleged to violate the Establishment Clause should be measured against the Lemon criteria.“).
The parties here have not discussed the first two parts of this test because it is clear that the statute involved in this case has a secular purpose and that it does not have a primary effect of either advancing or inhibiting religion. With respect to the third part of the test, the circuit court found that teacher certification did cause excessive government entanglement with religion.
In reviewing this conclusion, we are aware that the United States Supreme Court has stated:
Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. Fire inspections, building and zoning regulations, and state requirements under compulsory school-attendance laws are examples
of necessary and permissible contacts. [Lemon, 403 US 614. Citations omitted.]
Those kinds of state actions which have been found to violate this third prong are those which create “an intimate and continuing relationship between church and state.” Lemon, 403 US 622. See also Walz v New York City Tax Comm, 397 US 664; 90 S Ct 1409; 25 L Ed 2d 697 (1970); Wolman v Walker, 433 US 229; 97 S Ct 2593; 53 L Ed 2d 714 (1977) (finding that the use of state funds for nonpublic school field trips would require close supervision of the nonpublic school teachers, thus creating excessive entanglement).
In this case, it is clear that requiring all teachers to be certified does not impermissibly tangle government with religion. The state is merely enforcing minimum standards with regard to individuals. The requirement does not involve the government in any continuing relationship with the churches or the schools. Once the individual teacher is certified, the state does not require the individual to teach from any particular perspective. We find, therefore, that there is no unconstitutional government entanglement with religion.
IV. CONCLUSION
We agree with the Court of Appeals that requiring all teachers in the state to be certified is not unconstitutional. Neither the
BOYLE, J. (concurring). While we concur in the result reached by the opinion for affirmance, we write separately to expand both on the nature of the balancing test which we believe appropriate in
I
THE STANDARD OF REVIEW
Primarily at issue in this case is whether the teacher certification requirement imposed by the state impinges upon the plaintiffs’
The foregoing claims are distinct and separate, and, if brought individually, the claims would not be reviewed under the same standard. The
The standard for evaluating free exercise claims has not been consistently articulated by the United States Supreme Court.3 Despite that fact, two constant principles can be identified.
The difficulty in articulating a standard for free
Contrary to the opinion for reversal, we do not believe that the belief/action and direct/indirect interference dichotomies have long been abandoned when it is necessary to determine the scope of protections afforded by the
The
The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. [Cantwell v Connecticut, 310 US 296, 303-304; 60 S Ct 900; 84 L Ed 1213 (1940).]8
Where the regulation involved conflicts directly with a religious practice, “accommodation between the religious action and an exercise of state authority is a particularly delicate task [Prince v Massachusetts, 321 US 158, 165; 64 S Ct 438; 88 L Ed 645 (1944)], because resolution in favor of the State results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.” Braunfeld v Brown, 366 US 599, 605; 81 S Ct 1144; 6 L Ed 2d 563 (1961). But where the burden on the exercise of religion is indirect, i.e., the legislation does not make the religious practice itself unlawful, the most critical scrutiny must be employed or the operating latitude of the Legislature would be severely restricted. Id., 606.
Admittedly, “[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion,” Wisconsin v Yoder, supra, 220, citing Sherbert v Verner, 374 US 398; 83 S Ct 1790; 10 L Ed 2d 965 (1963), that is, if, although indirect, the effect of the regulation is to put “substantial pressure on an adherent to modify his behavior and to violate his beliefs . . .” Thomas v Review Bd of Indiana, 450 US 707, 718; 101 S Ct 1425; 67 L Ed 2d 624 (1981). However, if the state regulates conduct by enacting a neutral law within its
The fundamental issue which divides this Court is the nature of the proofs required by the parties in order to satisfy their respective burdens in this free exercise case, an issue which the United States Supreme Court has not directly addressed.10 In our judgment, it is apparent from Supreme Court precedent that the extent and nature of the burden imposed by the enforcement of the regulation is relevant to the kind and quantity of proofs required by the government to satisfy the strict scrutiny test. Cf. Wisconsin v Yoder, supra; United States v Lee, 455 US 252; 102 S Ct 1051; 71 L Ed 2d 127 (1982); Braunfeld v Brown, supra, and
The opinion for reversal characterizes as “inescapable” the conclusion that the certification requirement is a direct regulation of plaintiffs’ religious activity. The opinion thereby eschews examination of the nature and extent of the burden on plaintiffs’ First Amendment rights and proceeds directly to application of the compelling state interest analysis. Our colleague‘s characterization of the nature of these claims seems to follow from the willingness to accept the premise that all state regulation of religious schools is a direct restraint on religious liberty.
While taking us to task for allegedly interpreting plaintiffs’ religious beliefs and requirements, our colleague herself characterizes the religious burden in a manner which inexorably dictates the conclusion.12 No less than three times does the opinion for reversal characterize the burden on
A
Plaintiffs’ primary objection to the teacher certification requirement is that “no one may carry out a teaching ministry in a church-school without a government permit to do so . . . .” Plaintiffs do not contend that they were denied a certification to teach upon the basis of their religious beliefs. Were this the basis of their objections, plaintiffs would be clearly entitled to relief, for “[t]he
Slightly rephrased, plaintiffs’ objection is that they are precluded from teaching on the basis of their uncertified status. By Michigan law, the certified status involved here is defined in terms of conduct, not belief.14 Because the state requirement is focused on status, conduct, and acts, this Court “should be cautious in expanding the scope of [the absolute protections afforded belief by the First Amendment] since to do so might leave government powerless to vindicate compelling state interests.” McDaniel v Paty, supra, 627, n 7 (emphasis supplied).15
B
The burden on plaintiffs’ religious practices is also indirect. The pastors’ primary objection to teacher certification is their belief that God has given them the criteria by which to discern who should teach their children, and that licensure itself is an infringement on their religious liberty. Plaintiffs’ religious tenets do not prohibit them from hiring a teacher simply because the teacher is certified. The record establishes that certified teachers are employed by the schools.16 Further,
This objection, although couched in religious terms, borders on secular concerns. The economic and administrative burden imposed by the certification requirement is clearly more palpable than the burden on plaintiffs’ religion. According to the record, there are religious institutions in existence which provide the classes required for certification and which teach the classes in a manner unobjectionable to plaintiffs’ religious beliefs. Moreover, it may be possible for teachers at the schools to satisfy the educational requirements for certifica-
Without doubt, an integral part of plaintiffs’ beliefs is that it is their duty and right to educate their children in the manner they believe is best for their children. Our respect for the sincerity of their beliefs does not, however, require us to lose sight of the fact that the education of plaintiffs’ children is also a well-established compelling concern and a constitutional interest of the state,
II
THE BALANCING PROCESS DESCRIBED
The standard for free exercise claims is a balancing test which countenances shifting burdens of persuasion in proportion to proofs admitted at trial. For example, once a plaintiff has established that a regulation burdens the exercise of religion, the state must establish that a “compelling state interest” is at issue and that the interest cannot otherwise be served. If the plaintiff sets forth alternative means which rebut the government‘s claim of necessity, then the state is required to show with more particularity that no lesser restrictive alternative is available. Compare Wisconsin v Yoder, supra, 234-236.
The balancing process which is required has been diversely described by the United States Supreme Court.20 In Sherbert v Verner, supra, 403, the Court applied traditional “strict scrutiny” review and required that a governmental regulation which burdens the free exercise of religion be
At least one member of the United States Supreme Court has posited that the majority of decisions has placed “an almost insurmountable burden on any individual who objects to a valid and neutral law of general applicability on the ground that the law proscribes [or prescribes] conduct that his religion prescribes [or proscribes] . . . .”22 Although this is the pronounced view of only one justice, we cannot ignore the conclusion that even the Supreme Court has acknowledged that certain government interests are so compelling that the state need not show that the means chosen is absolutely essential to further that interest, and that no lesser restrictive alternative could be substituted. It thus appears that the degree of importance attached to the governmental interest can well dictate the extent the government is required to diminish the effectiveness of the regulation by granting an exemption.23
A
In Wisconsin v Yoder, supra, 215, the balancing test was based on “the quality of the claims of the respondents concerning the alleged encroachment of Wisconsin‘s compulsory school-attendance statute on their rights and the rights of their children to the free exercise of the religious beliefs they and their forebears have adhered to for almost three centuries.” In that case the Amish persuasively established almost three hundred years of consistent practice which pervaded and regulated the respondents’ entire mode of life. This evidence supported their claim that “enforcement of the State‘s requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise” of their religious beliefs. Id., 219.
The Yoder Court accepted the proposition that “some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” Id., 221. It also recog
The Court then found that the Amish had carried the burden of demonstrating the sufficiency of their alternative mode of continuing informal vocational education in the same terms of those interests advanced by the state in support of its compulsory high school education. Id., 235. It was then, the Court concluded, that in light of this convincing showing, and considering the minimal difference between what the state required and the Amish accepted, the state must show with more particularity how the admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. Id., 235-236.
The most recent case applying the balancing test we believe appropriate where a paramount government interest is demonstrated is Goldman v Weinberger, supra. In Goldman, a case decided this year, the petitioner contended that the Free Exercise Clause permitted him to wear a yarmulke while in uniform despite a United States Air Force regulation mandating uniform dress for Air Force personnel. The ultimate governmental interest at stake was congressional authority to raise and support armies and to regulate their performance. The intermediate goals or interests asserted were discipline, uniformity, the need to inculcate the virtue of obedience, and the subordination of the interests of the individual to the needs of the service. In order to achieve these objectives, the military promulgated dress regulations. Such regulations, as interpreted, prohibited the wearing of the yarmulke.
The petitioner asserted that his religious beliefs required him to wear the yarmulke and that,
Whereas the opinion for reversal in this case argues that it is inescapable that Sherbert v Verner, supra, sets the standard for all claims of violation of free exercise of religion, in Goldman only two justices agreed. Justices O‘Connor and Marshall applied that standard and, in dissent, held that the granting of an exemption should be required. Justice Blackmun, in dissent, would have required an exemption as well, but he declined to apply Sherbert because the military was involved.
Seven of nine justices agreed that the granting of an exemption would create no danger of impairment of the military mission of the Air Force. Three justices, in a separate concurring opinion, noted that where a regulation is neutral regarding religion, is based on an objective standard, is not motivated by hostility against, or any special respect for, any religious faith, to require an exemption simply because the governmental interest would not be impaired, thereby would invite nonuniform treatment for members of different religious faiths.27
B
The opinion for reversal sharply criticizes both the opinion of Chief Justice WILLIAMS and this opinion for articulation and application of the standard of review in this case. Post, pp 566-578. In summary, the opinion for reversal states that the standard for review in free exercise claims is clear. Once the claimant has asserted that a governmental regulation burdens the free exercise of religion, the government is obligated to articulate and prove that it has a compelling interest, that the means selected to achieve that end is essential for that purpose, that no means less burdensome to free exercise exists to achieve such purpose, and
Our colleague implies, further, that the claim of religious practice as well as the burden thereon is defined by the claimant and that scrutiny of the claim is perhaps beyond the competence of the judiciary.
While the test used by Chief Justice WILLIAMS’ opinion and in this opinion is articulated somewhat differently, we have applied the test articulated by the opinion for reversal in this case. Whether Supreme Court precedent requires this standard remains unclear. From the case law, however, the following factors do emerge as required considerations.
One obvious factor is the governmental interest. As Yoder and Goldman teach, questions regarding the importance of the interest are inescapable. As a practical matter, the level of abstraction employed by a court in recognizing the interest can often be controlling. The higher the level of generality, in general, the better the government will fare in the contest. The more concrete or fact-specific the interest recognized, the worse the government will fare in the balancing.
A second and third factor involve the means chosen by government to achieve its interest and the logical nexus between the end and the means. Evaluation of the latter relationship involves concepts such as necessity, essentiality, broadness versus narrowness, objective versus subjective, whether the regulation is one of general application, and whether the regulation is one of several different ways to accomplish the objective or is the only way of doing so. In short, the stronger and more direct the logical nexus, the better the government will fare in the balancing.
A sixth factor is the extent of the conflict. At this point in the analysis the amount of the burden or restraint is relevant, as well as to what extent the state‘s effectiveness in achieving its goal would be diminished if required to relieve the burden. A final factor is the role of the individual exemption. Whether it is required to be offered depends upon analysis of the above six factors.
If the governmental objective is compelling, if the means to achieve it is closely and narrowly drawn, and if the effect on religious exercise is indirect, unintended, and marginal, then an exemption as an alternative to avoid the claimed conflict is not necessary.
In summary it appears that the higher the rank of the governmental interest, the stronger the logical nexus between such interest and the means selected to accomplish it, the less the important the private right, the less direct the conflict between the exercise of the right and the regulation in question, and the lower the amount of the burden, the less likely the claimant will win in the balanc
III
ANALYSIS OF THE PLAINTIFFS’ CLAIMS
Turning to the claims advanced by plaintiffs in the case at bar, we are unconvinced that compliance with the state teacher certification program will endanger or restrict the free exercise of their religious beliefs. The state‘s interest in education is paramount. The means selected to achieve that end, that is, a certification program to require that only academically qualified teachers are used to fulfill the mandatory educational requirements is narrowly drawn to accomplish that objective. The means selected is also neutral regarding religion, is based on an objective standard, and is not motivated by hostility against, or any special respect for, any religious faith. Moreover, ensuring that teachers are academically qualified is an independent legitimate state interest.
The private right asserted is extremely important, but the nature and extent of the conflict are far less clear. On this record it does not appear that certification, as such, contravenes plaintiffs’ beliefs (as churches, pastors, teachers, or parents) except to the extent that some plaintiffs assert that any and all regulations of their church schools violate their religious beliefs.
Indeed, plaintiffs’ free exercise claim is that certification itself is not opposed, but the govern
Neither pastor testified to a religious objection to hiring certified teachers or that the requirement would force closure of their schools, and the record establishes that it is possible to become qualified for a state teaching certificate through a number of ways in harmony with plaintiffs’ beliefs. It thus appears that the certification requirement alone neither compels plaintiffs to refrain from religiously motivated conduct nor to engage in conduct they find objectionable. Certification, qua certification, does not contravene either the pastors’ or the teachers’ religious beliefs.
The only alternative for teacher certification offered in these proceedings is student testing. But, as the majority aptly points out, this testing comes too late.29 The teacher certification requirements are essentially prophylactic in nature. Certification does not guarantee that a person will be an effective teacher, but it increases the probability that a
There was also testimony offered by plaintiffs that the free market will naturally operate to eliminate inadequate schools. But plaintiffs offered no testimony that the children who attend such inadequate schools prior to their identification and elimination will not be harmed.
We further note that the plaintiffs’ pastors and plaintiffs’ own expert agreed that academic qualifications are desirable in the teaching profession. Plaintiffs’ expert also listed other factors he considered important in a good teacher such as talent, dedication, and ethical convictions. But these characteristics are not susceptible to the type of government regulation involved here. As a preventive measure assuring at least a minimal competency, academic qualifications for teachers are the only requirements a government can objectively establish.
Unlike the Amish in Yoder, the departure from the requirements of the state here are not minimal. Carried forward, the logic of the position advanced by plaintiffs would require the state to give up any attempt to advance its interest in fostering education whenever persons opt for religious education as a matter of religious conviction. Such a result could effect a substantial deregulation of the teaching profession in the private sector, a profession critical to the proper and necessary education of our citizens.30 The record here
The plaintiffs in the case at bar have not established a case as strong and assuring as that established by the Amish in Yoder. For that reason, we do not find it necessary to require the state in this case to show with more particularity how its compelling interest in compulsory education will be adversely affected by granting an exemption to plaintiffs.31
The teacher certification requirements represent, at once, a compelling state interest of their own right and a state regulation narrowly drawn to achieve the broader goal of quality education. They constitute, at most, an indirect and minimal burden on the free exercise of religion by plaintiff.
IV
SUMMARY
In Sherbert v Verner, supra, and Thomas v Review Bd, supra, the Court reaffirmed a thirty-nine-year-old principle: A state may not exclude “Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” Everson v Ewing Twp Bd of Ed, 330 US 1, 16; 67 S Ct 504; 91 L Ed 711 (1947) (emphasis deleted). In those cases, the states were unable to demonstrate a sufficiently compelling governmental interest. See Thomas, supra, 719 and Sherbert, supra, 406-409. Thus, the question whether the states’ interests could be served through less burdensome means was not reached.
In the case at bar, “[t]here is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education.” Wisconsin v Yoder, supra, 213. This paramount responsibility has been made to yield to the right of parents with respect to the religious upbringing of their children only when the parents have assured an equivalent education in a privately operated system. Wisconsin v Yoder, supra; Pierce v Society of Sisters, supra.
This Court must not lose sight of the fact that our courts “are not school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of discreet aspects of a State‘s program of compulsory education.”32 Wisconsin v Yoder, supra, 235. As the
In the case sub judice, an alternative means by which the state can ensure that academically qualified teachers will further its interest in providing education to its citizenry has not been established. Although certification is not a guarantee of teacher competence, logic and experience indicate that it furthers that goal. The lack of statistics bearing out this corollary is not due to the fact that the corollary does not exist, but rather is because it is impossible to isolate the effect of certification when so many other variables, such as the talent and dedication of the teacher, the support of the family, and available resources and environment, are incapable of control. We are not unmindful of the current controversy regarding the effectiveness of the certification program in producing the quality of teachers every parent would have teach their child. But we are here to scrutinize the constitutional limitations of the Legislature, not its wisdom. Cf. Braunfeld v Brown, supra, 608.33
We would conclude that the certification require
V
THE REMAINING ISSUES
We also agree with the treatment of the remaining issues in the opinion for affirmance. We note that the parties have reached an agreement as to the meaning of the other regulatory statutes involved. Because there is no longer a disagreement among the parties as to these points, see Detroit v Street Electric Ry & Motor Coach Employees Union, 332 Mich 237, 258; 51 NW2d 228 (1952), app dis 344 US 805 (1952), reh den 344 US 882 (1952),34
BRICKLEY, J., concurred with BOYLE, J.
RILEY, J. This case involves the appropriate construction, constitutional validity, and enforceability of the private and parochial schools act,
A number of issues in this case which were constitutionally adjudicated may now be resolved on nonconstitutional grounds by expressly adopting limiting constructions for several of the act‘s broadly expressed regulatory provisions.1 The remaining question concerns the constitutionality of closing down two independent fundamentalist
The record abundantly supports the trial court‘s findings that plaintiffs’ refusal to comply with the certification requirement is based upon sincerely held religious beliefs and that the certification requirement affirmatively interferes with the free exercise of those beliefs. Thus, plaintiffs’ religious practice with regard to the employment of teachers is protected by the First Amendment, and the statutory regulation, as applied, is constitutionally suspect. The crucial question, therefore, concerns whether the state has established that enforcing the certification requirement is essential to the fulfillment of a compelling governmental interest—here, the objectives of the compulsory education law. In this regard, it was incumbent upon the state to show, first, that exempting plaintiffs from the certification requirement would unduly impair its interest in compulsory education and, second, that enforcing the certification requirement is the
The state has never asserted, in this case, that exempting plaintiffs from the state teacher certification regulation will detract in any way from its interest in furthering the objectives of compulsory education. Furthermore, it conceded that plaintiffs were in no way failing to adequately educate their children, even though they were not employing only teachers who held certificates to teach in the public schools. See n 53. Plaintiffs, on the other hand, although not required to do so, have presented persuasive empirical evidence that an exemption would not harm the state‘s interest. In this regard, the record contains the documented academic achievement records of the children, objectively measured by their performance on standardized achievement tests. Additionally, it reflects the existence of numerous empirical studies, through the testimony of nationally recognized education experts, conducted in the overwhelming majority of states which do not impose the regulation that all children be educated only by state certified teachers to implement their compulsory education laws (no more than five other states currently impose such a regulation),3 which support the factual conclusion that religious schools that do not employ only state certified teachers pose no threat to the state‘s interest in education. It is uncontested, on the record in this case, that no correlative relationship in fact exists, in religious schools, between state teacher certification and student learning or teacher competence.
My colleagues, per the opinion of Chief Justice
The record in this case does not support the factual conclusion that enforcing the teacher certification provision of the act, as applied, is essential to the state‘s interest in compulsory education. Indeed, the state, upon which the burden to justify enforcing that legislation unquestionably rests, has failed to establish any substantial relationship between the enforcement of that regulation and the governmental interest in compulsory education. Unless, and until, the state can show otherwise, I would reverse the decision of the Court of Appeals and reinstate the decision of the trial court enjoining the enforcement of that statute as applied. Furthermore, I would expressly adopt limiting constructions for several of the act‘s other provisions and uphold their constitutional validity as construed, and I would reverse the decision of the Court of Appeals to the extent that it is inconsistent with those constructions.
I
Section 1 of the act, after vesting supervision of “all the private, denominational and parochial schools of this state” to the Superintendent of Public Instruction, declares:
It is the intent of this act that . . . the courses of study [in such schools], and the qualifications of the teachers thereof shall be of the same standard as provided by the general school laws of the state.
Section 2 of the act defines “private, denominational or parochial school,” within the meaning of the act, as “any school other than a public school giving instruction to children below the age of 16 years, in the first 8 grades as provided for the public schools of the state.” (Emphasis added.)
Section 3 of the act expressly imposes the teacher certification requirement:
No person shall teach or give instruction in any of the regular or elementary grade studies in any private, denominational or parochial school within this state who does not hold a certificate such as would qualify him or her to teach in like grades of the public schools of the state.
Section 4 of the act authorizes the Superintendent of Public Instruction to enforce the provisions of the act and sets forth enforcement procedures. If a violation of the act is established, after an administrative hearing, the Superintendent of Public Instruction is to “order [compliance] with the requirements of th[e] act found to have been
shall be compelled to attend the public schools or approved [nonpublic] school under the provisions of the compulsory education act . . . of 1905, as amended. And it shall be the duty of the persons having charge of the enforcement of the said compulsory education act . . . to compel the attendance of the children . . . at the public schools or approved private, denominational or parochial school.6
Finally, § 5 of the act authorizes the Superintendent of Public Instruction “by himself, his assistants, or any duly authorized agent,” to “at any time . . . investigate and examine into the conditions of any school operating under this act,” and imposes a duty upon such schools to “submit for examination its sanitary condition, the records of enrollment of pupils, its courses of studies as set forth in section 1 . . . and the qualifications of its teachers.” (Emphasis added.) Any refusal to comply with the provisions of § 5 “shall be considered sufficient cause to suspend the operation of [the] school . . . .”
II
Plaintiffs, Sheridan Road Baptist Church, First Baptist Church of Bridgeport, their pastors, par-
Plaintiffs sought injunctive and declaratory relief, challenging the constitutional validity and application of several of the act‘s provisions, and regulations promulgated thereunder, as violative of the Free Exercise and Establishment Clauses of the
The state counterclaimed, seeking an injunction to require plaintiffs to comply with the regulations, and a declaration that 1921 PA 302 is constitutional on its face and as applied to plaintiffs.
After a six-day trial, the court issued a memorandum decision in which, having considered all of the testimony, it made specific findings as to: the
The trial court upheld plaintiffs’ constitutional challenges and enjoined application and enforce-
The state filed a claim of appeal, and the Court of Appeals reversed, upholding the constitutionality of 1921 PA 302, as applied, because it found that the infringement of plaintiffs’ free exercise rights was justified by each challenged regulation‘s reasonable relationship to the state‘s interest in education.11
This Court granted plaintiffs’ application for leave to appeal to consider the constitutional enforceability of the private and parochial schools act, as applied to plaintiffs, with respect to each of plaintiffs’ constitutional challenges, and to review the Court of Appeals decision which reversed the decision of the trial court with regard to each challenge. 422 Mich 857 (1985).
III
It now appears that a number of the constitutional issues which were adjudicated by the Court of Appeals and the trial court may be resolved on nonconstitutional grounds if this Court adopts a limited construction of the statutory curricula and licensing (“approval“) requirements.12
The state has advanced a limited construction of the provisions imposing curricula and licensing
Thus, if this Court adopts the limited construction now advanced with respect to the statutory curriculum, licensing, and reporting requirements, the only remaining question requiring constitutional adjudication concerns the plaintiffs’ challenges to the teacher certification requirement. I would adopt those limiting constructions to avoid constitutional adjudication with regard to those statutory requirements. A statute “ought not be construed to violate the Constitution if any other possible construction remains available.” NLRB v Catholic Bishop of Chicago, 440 US 490, 500; 99 S Ct 1313; 59 L Ed 2d 533 (1979).14
The intent of the private and parochial schools act to directly regulate religious schools is clearly expressed.15 While the reasonable regulation of all
Additionally, the act‘s broadly expressed continuous regulatory authority may give rise to serious constitutional questions under the Establishment Clause. See Lemon v Kurtzman, 403 US 602, 616; 91 S Ct 2105; 29 L Ed 2d 745 (1971).
Nevertheless, I am persuaded that a limited construction may be given to the curricula, licensing, and reporting requirements, which, within the facts of the present case, would be consistent with the
A
The act does not define curricula requirements per se, other than its reference in the general intent sentence of § 1 that “the courses of study . . . shall be of the same standard as provided by the general school laws of the state.” In addition to the inherent vagueness of “the same standard,” the numerous constructions that could be given to the phrase “provided by the general school laws of the state” render the act‘s attempt to impose “required” courses of study cryptic.16
Plaintiffs’ attempt to ascertain the meaning of the “curriculum requirement,” to which it must comply, was of no avail at trial; the examination of state officials and the production of documentary evidence resulted in contradictory and confusing evidence.17 The trial court ultimately held this
According to a Department of Education publication which was produced and admitted at trial, the curricula requirement imposed by § 1 of the act requires that the courses of study provided by nonpublic schools “be the same or equivalent to that provided by the public school district in which the said nonpublic school is located geographically.” (Emphasis added.)19 That construction seems consistent with the compulsory education statutes’ exception to mandatory public school attendance for:
(a) A child who is attending regularly and is being taught in a state approved nonpublic school, which teaches subjects comparable to those taught in the public schools . . . , as determined by the course of study for the public schools of the district within which the nonpublic school is located. [
MCL 380.1561(3)(a) ; MSA 15.41561(3)(a).]20
However, the state now rejects the Court of Appeals construction and asserts a more limited construction of the statutory curricula regulation, citing this Court‘s decision in Snyder v Charlotte Public School Dist, 421 Mich 517; 365 NW2d 151 (1984), in which this Court referred to the curricula requirement. This limited construction, which plaintiffs have stated would remove their constitutional objections,22 would not depend upon geo-
Further, the state affirmatively asserts that the private and parochial schools act should not be construed as authorizing state officials to “inject themselves into the operation of nonpublic schools,” or to “examine content of courses,” or to engage in “monitoring” the churches’ schools, or to “evaluate curriculum . . . , teaching techniques and methods, textbooks, or testing procedures.”25
B
With regard to the licensing/approval issue, the state now asserts that Michigan law “does not provide for or require the approval or licensing of any school“; it merely confers the authority to ” ‘disapprove’ for noncompliance with specific re-
Plaintiffs agree that, if adopted, this construction would remove their constitutional objections to the “licensing” requirement which “has been of deepest concern [to them] since . . . they are religiously disabled to seek a governmental permit to initiate a ministry.”
C
Adopting the proposed limited construction of the curricula and “approved” requirements would also remove plaintiffs’ objection to the reporting requirements imposed under § 5 of the act as they relate to those aspects of the regulatory scheme. Plaintiffs have never objected to the reporting requirements imposed by § 1578 of the School Code,
I would expressly adopt the limited constructions of those provisions of the act and thereby reverse and modify the decision of the Court of Appeals to the extent that the constructions given to those provisions by that Court are inconsistent with the limited constructions here adopted. My colleagues’ treatment, or, more precisely, nontreatment of these issues does not appropriately resolve the constitutional questions presented. Plaintiffs have not dismissed their constitutional challenges to the enforcement of those provisions, as construed in the binding decision of the Court of Appeals. That the state has modified its position with respect to the appropriate statutory construction of the requirements imposed upon all nonpublic schools and its authority to enforce those requirements, does not, in itself, remove plaintiffs’ constitutional objections. Statutory construction is within the province of the courts, and the constructions now urged by the state, which conflict with the constructions adopted by the binding decision of the Court of Appeals, are without legal effect. Plaintiffs have not agreed to dismiss, by stipulation of the parties, the constitutional questions presented with regard to those provisions. While stipulations as to questions of fact are binding upon the parties, stipulations concerning questions of law are inoperative, and without legal effect. See People v Levisen, 404 Ill 574; 90 NE2d 213 (1950).
The cases cited in Justice BOYLE‘S opinion do not support my colleagues’ avoidance of these issues. In Detroit v Street Ry Employees Union, 332 Mich 237, 258; 51 NW2d 228 (1952), the issue referred to “was not decided by the lower court.” In Flint v Consumers Power Co, 290 Mich 305, 308; 287 NW
This Court may not appropriately dispose of these issues by deciding that no “case or controversy” exists, or that the issues have been mooted. The case or controversy requirement of the federal constitution, which prohibits the federal courts from issuing advisory opinions, is completely inapplicable in this situation. An actual controversy does exist, with actual parties, and, indeed, it has been decided by both the trial court and the Court of Appeals. The inapplicability of the mootness doctrine is also apparent. Issues on appeal do not become moot, and therefore not reviewable, because the appellee changes its position and thereby concedes that the decision being reviewed was incorrect to that extent. See, e.g., United States v WT Grant Co, 345 US 629; 73 S Ct 894; 97 L Ed 1303 (1953); Young v United States, 315 US 257; 62 S Ct 510; 86 L Ed 832 (1942). The effect of my colleagues’ nontreatment of these issues is to allow the Court of Appeals constructions of these provisions of the act to stand, effectively affirming them, and to ignore the substantial constitutional questions presented.
Justice BOYLE articulates her disapproval of adopting the limiting constructions now advanced by the state to uphold the constitutional validity of these statutes and avoid reviewing the decision of the Court of Appeals, stating that that position has “no merit.” Ante, p 515, n 34. However, contrary to Justice BOYLE‘S assertions, my point is that the appropriate resolution of these issues requires either (1) adopting limiting constructions of these statutes to uphold their constitutional validity and make it unnecessary to review the decision of the Court of Appeals, or (2) reviewing
The error in Justice BOYLE‘s assertion that “the State of Michigan is bound by its [so-called] agreement” (ante, p 515, n 34), is exemplified by her own inapposite criticism that I would “delegate to the parties the authority to construe acts of the Legislature,” and “the authority . . . to reverse a decision of the Court of Appeals.” Ante, p 515, n 34.
IV
The remaining constitutional question concerns the enforceability, consistent with the
The state teacher certification requirement is imposed by § 3 of the 1921 act. It requires all parochial and denominational schools to employ only teachers who “hold a certificate such as would qualify him or her to teach in . . . the public schools of the state.” The administrative requirements for securing state certification are promulgated by the State Board of Education, and include the completion of a program of study at a
The enforcement provisions of the act, §§ 4 and 5, authorize the state to close any parochial or denominational school which is in violation of § 3 (i.e., does not employ only teachers who hold a valid state certificate).
Plaintiffs challenge the enforcement of the teacher certification statute as an unnecessary interference with their
In Pierce, supra, the Court held unconstitutional an Oregon compulsory education act which required public school attendance with limited exceptions not including private school attendance.29 The Court said:
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. [Emphasis added. Id., 535.]30
For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: “That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.” In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State
In Bartels v Iowa, 262 US 404; 43 S Ct 628; 67 L Ed 1047 (1923), the Court invalidated similar legislation which had been enacted in Iowa and Ohio. See also Farrington, supra, in which the Court invalidated, as violative of the
In Yoder, supra, 233, the Court said that the “additional obligations” referred to in Pierce “must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship,” and stated that
Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children.
In Yoder, the Court emphasized that this parental interest is particularly compelling combined with a free exercise claim. Id.
Because plaintiffs’ challenge to the enforcement of the certification requirement is asserted within the context of the religious freedom guarantees of the
Finally, plaintiffs challenge the certification reg-
V
Consideration of plaintiffs’ free exercise challenge requires, first, determining the applicable standard of review. The United States Supreme Court, in several recent decisions, has considered the standard of review applicable to state legislation which interferes with individuals’ rights to freely exercise their religious beliefs. See, e.g., United States v Lee, 455 US 252; 102 S Ct 1051; 71 L Ed 2d 127 (1982); Thomas v Review Bd of Indiana Employment Security Div, 450 US 707; 101 S Ct 1425; 67 L Ed 2d 624 (1981); Yoder, supra; Sherbert v Verner, 374 US 398; 83 S Ct 1790; 10 L Ed 2d 965 (1963).32 While the Court has not enunciated the applicable standard in identical terms, it has become increasingly clear that such legislation requires strict judicial consideration.
In Lee, supra, the Court said that “[t]he state may justify a limitation on religious liberty [only] by showing that it is essential to accomplish an overriding governmental interest.” Inherent in determining whether the limitation is “essential” to the governmental interest, is consideration of whether accommodation by the state would “un-
Similarly, the Court, in Thomas, supra, 718, said that “[t]he state may justify an inroad on religious liberty [only] by showing that it is the least restrictive means of achieving some compelling state interest.” See also Sherbert, supra, 406-408. In Sherbert, 406, the Court said “[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” Referring to the nature of such a “compelling state interest,” the Thomas Court quoted the following passage from the opinion of the Court in Yoder, supra, 215:
The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. [Emphasis added.]
Thus, while not phrased in identical terms, the standard of review applied by the Court in its decision in each of those cases consistently reflects both aspects of a heightened scrutiny standard: inquiry concerning the magnitude of the state‘s interest, and the necessity of the means chosen to further that interest. Furthermore, and perhaps most noteworthy, in each of those cases the Court focused on the effect that accommodating individuals’ free exercise rights would have upon the achievement of the asserted governmental interest, in considering the necessity of overriding their
Where fundamental claims of religious freedom are at stake, however, we cannot accept such a sweeping claim; despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16, and the impediment to those objectives that would flow from recognizing the claimed [religious observers‘] exemption. [Yoder, 221. Citation omitted.]
The Court‘s most recent free exercise decision in Bowen v Roy, 476 US —; 106 S Ct 2147; 90 L Ed 2d 735 (1986), in which the Court was divided three-two-four, has not overruled or modified the standard of review consistently applied in each of those prior controlling decisions. The Court‘s five-to-four decision in Goldman v Weinberger, 475 US —; 106 S Ct 1310; 89 L Ed 2d 478 (1986), is, of course, inapplicable. The issue presented in Goldman, which was expressly limited to the military context, concerned “the appropriate level of scrutiny of a military regulation that clashes with a constitutional right . . . .” 89 L Ed 2d 483. While Justice BOYLE‘s assertion that “[t]he First Amendment makes no exception for the military” (ante, p 504, n 27) is arguably persuasive, it was precisely that assertion which was rejected in Goldman. The five-member majority, relying upon a long line of precedent, held that a lower level of scrutiny is applicable to claims of constitutional violations within the specialized military society. That
Thus, if the record in the instant case supports plaintiffs’ claims that their refusal to comply with the teacher certification statute is based upon sincerely held religious beliefs, and that the certification requirement interferes with or burdens the free exercise of those beliefs, the determinative question requires an inquiry concerning the nature of the state‘s asserted interests, and the necessity of enforcing the certification statute, as applied, to further those interests. Inherent in this inquiry is consideration of the effect accommodation by the state would have upon the achievement of that interest. If accommodating plaintiffs’ religious practices with regard to the employment of teachers would cause no ascertainable harm to the state‘s asserted interests, no ad hoc “balancing” concerning the extent of the burden upon plaintiffs’ free exercise rights is necessary; if accommodation would cause no harm to the asserted interest, then no infringement of plaintiffs’
A
Consideration of plaintiffs’ free exercise challenge must begin with a review of the facts regarding the nature of plaintiffs’ schools and the effect upon plaintiffs’ exercise of religion posed by enforcement of the state‘s teacher certification requirement. Individuals seeking exemption from complying with an otherwise valid state regulation, claiming protection under the
The record in this case, including the testimony of plaintiff pastors, parents, teachers, and children, and of qualified expert witnesses in both religion and education, clearly supports the trial court‘s conclusion that the certification statute substantially interferes with the free exercise of plaintiffs’ religious beliefs. The record supports the following factual conclusions. Plaintiffs believe themselves required to establish and maintain schools as an integral part of their religious mission and con
The teachers in plaintiffs’ schools must be members of the independent churches, “born again” Christians, and live Christian lives in and out of the classrooms, in addition to possessing the qualifications and ability to teach the academic subject matter.38 Their role in the schools is considered a ministry for the inculcation of Christian principles, moral standards, and biblical beliefs in the lives of the children they teach, in addition to providing a religious academic environment in which the students may develop scholastically.39
The teachers believe themselves to be “called” to engage in a ministry, a religious apostolate. Plaintiff teacher Kwaitkowski testified that, on religious grounds, she could not submit to the state certification regulations, even though her academic qualifications—having obtained an education degree from an out-of-state university—substantially qualifies her for provisional certification.40
The parents believe they are religiously required to provide their children with a fundamentalist education and that their children must be taught only by fundamentalist Christian teachers. On religious grounds, they may not enroll their children in a public school or the school of another denomination. They are deeply pleased with the education their children receive at their schools, and are closely involved in the process.41
The sincerity of plaintiffs’ religious beliefs is supported by continuous reference to literal scriptural interpretations, and was substantiated by expert testimony. The sincerity of plaintiffs’ reli
The state does not contest plaintiffs’ claims with regard to the bona fide “religious” nature, or sincerity, of their beliefs within the meaning of the
[I]t is not within “the judicial function and judicial competence . . . to inquire whether [plaintiffs or the Government has the proper interpretation of the plaintiffs‘] faith. Courts are not arbiters of scriptural interpretation.”
The state‘s argument in this regard, with which Chief Justice WILLIAMS and Justice BOYLE seem to be in agreement, is that plaintiffs do not object to employing a certificated teacher, and, therefore, the regulation does not interfere with the free exercise of their religious beliefs. That argument, however, reflects a misunderstanding of plaintiffs’ religious objection and is a non sequitur; the statutory regulation from which plaintiffs seek exemption does not require employing a certificated teacher, it requires them to employ only certificat
The record in this case establishes that the interference with plaintiffs’ free exercise of religion is both apparent and substantial. Plaintiffs, by religious conviction, consider their schools to be religious ministries, and assert that the requirement that no one may carry out a teaching ministry in their schools without a government license to do so, is in direct conflict with their religious beliefs. Plaintiffs consider their obligation to determine whom they shall employ a religious matter, and that the criterion by which to discern who to hire is likewise pervasively religious.43 On religious grounds, plaintiffs are prohibited from submitting
That the state certification requirement interferes with the fundamental free exercise rights of William and Sharon Swain and Ronald and Janice Munson as parents, and of Susanne Kwaitkowski as a teacher, is also apparent.46
The teacher certification requirement compels plaintiffs to choose between compromising their religious beliefs and conforming to the state‘s administrative interests or being prohibited from maintaining and operating their schools and having their children compelled by law to attend a school against the wishes and religious beliefs of their parents. Plaintiffs’ only other option would be to leave Michigan and seek another jurisdiction, the overwhelming majority of which do not impose state teacher certification requirements upon religious schools.47 To the extent that the operation of plaintiffs’ schools is religiously man
My colleagues’ representations of plaintiffs’ claims are distorted. Justice BOYLE‘S assertion, for example, that “certification itself is not opposed, but [only] the government compulsion to attain it,” is misplaced, and does not relate to the challenged regulation. Plaintiff parents, churches, and pastors are not compelled to attain certification; the legislation challenged regulates whom they must em
B
That the legislation in question affirmatively interferes with religiously motivated activity does not, of course, end the analysis. The individual religious autonomy guaranteed by the
Determining whether the state has established that enforcing the teacher certification statute, as
It has long been established that the governmental interest in compulsory education is not unlimited.51 See Yoder, supra, 215, 232-234. The Supreme Court‘s decision in Yoder is particularly instructive because the governmental interest asserted by the State of Wisconsin in that case, like the interest implicated in the present case, was the public interest in compulsory education. While the governmental interest asserted in the instant case is indistinguishable from the interest asserted by the State of Wisconsin in Yoder, the religious exemption plaintiffs seek is readily distinguishable from that which was sought, and constitutionally mandated, in Yoder: Plaintiffs do not oppose conventional formal education, but only the statutory and administrative requirements that they employ only teachers who have complied with the state‘s certification rules.52
In determining whether the governmental interest in compulsory education justifies overriding plaintiffs’ individual rights protected by the
Nothing in the record in this case intimates that granting religious exemptions from the certification requirement would present “grave and immediate” danger to the state‘s legitimate interests in compulsory education. West Virginia Bd of Ed v Barnette, 319 US 624, 639; 63 S Ct 1178; 87 L Ed 1628 (1943). While the state has continuously asserted that the governmental interest in compulsory education is “compelling,” it has presented no evidence that granting religious exemptions would have any adverse effect whatsoever upon the
The state‘s interest in compulsory education is
Any argument by the state that its legitimate authority as parens patriae requires upholding the enforcement of the certification requirement, as applied, to protect these children from their parents, must fail. The state has not even suggested that the “decisions [of plaintiffs-parents have] jeopardize[d] the health or safety of the child[ren], or have a potential for significant social burdens.” Yoder, 234. The record abundantly supports the conclusion that plaintiffs are actively pursuing and fulfilling the legitimate and important academic achievement and socialization interests underlying the compulsory education law.
The state has failed to show, in this case, that enforcing the certification requirement, as applied to plaintiffs, is essential to the fulfillment of its interest in compulsory education; establishing the mere “rational-basis” of enforcing the regulation
In this regard, plaintiffs’ uncontested assertion that the overwhelming majority of the states (forty-four) do not currently impose such a requirement upon the employment practices of nonpublic schools, without exception, should not be overlooked by this Court.58 Unless we are to assume that those states are failing to achieve the adequate education of their citizens (a proposition that has not been suggested), that evidence is relevant and should be considered. Moreover, it should be noted that the clear trend among those few states which have imposed such a requirement has been to abrogate teacher certification requirements for religious schools, or to provide exemptions for individuals who raise sincere religious objections to compliance.59 Additionally, that the
The record in this case reflects the lack of any evidence whatsoever that accommodating plaintiffs’ religiously based conflict with the teacher certification requirement would interfere with the state‘s asserted interest in “assuring that an education is being provided for all of its youth.” Additionally, I am convinced that less burdensome alternative means exist by which the state can supervise and ensure the future fulfillment of that important interest.
The record in this case firmly supports the con
Any assertion by the state that this alternative means is inadequate because the validity of such standardized achievement tests is questionable must be rejected. The record in this case, including the testimony of the state‘s own education expert, supports the conclusion that the validity of such tests is well-established and, indeed, that this alternative is a superior method of measuring student learning and good teaching.63 The record supports the conclusion that a higher, and more objectively identifiable, correlative relationship exists between standardized achievement test results and student learning, than between state teacher certification and student learning.64 The State
Finally, any assertion by the state that reviewing achievement test performance, as an alternative means, is actually more intrusive upon plaintiffs’ free exercise of their religious beliefs than enforcing the state certification requirement, must also be rejected. To accept that proposition would require holding that the state, rather than plaintiffs, has correctly interpreted the mandates and restrictions of plaintiffs’ religious convictions. The unwarranted implications of such a holding are obvious.66
The use of standardized achievement test results is an adequate, and perhaps even superior, alternative means by which the state can ensure that an “education is being provided to all of its youth,” without infringing upon plaintiffs’ fundamental First and Fourteenth Amendment freedoms. The state could request achievement test results along with the other information concerning the enrollment of students and courses of study to which plaintiffs are in agreement.
The accommodation required by the First Amendment‘s Free Exercise Clause would not, in the present case, run afoul of the Establishment Clause; the accommodation required by the Free Exercise Clause reflects the neutrality that the Establishment Clause compels. Yoder, 234-235, n 22; Sherbert, supra, 409. While the Court has recognized the Establishment Clause concerns in light of the values protected by the Free Exercise Clause, exemptions necessary to vindicate free exercise rights have consistently been upheld.67 Id. The First Amendment “mandates accommodation, not merely tolerance.” Lynch v Donnelly, 465 US 668, 673; 104 S Ct 1355; 79 L Ed 2d 604 (1984).
While my disagreement with the analyses of my colleagues is evident, I am compelled to express additional criticism because I am convinced that they, like the Court of Appeals in reaching its decision in the present case, have misapplied the standard of review mandated by the First Amendment for determining whether legitimate claims to the free exercise of religion may be overridden. I disagree with Chief Justice WILLIAMS’ analysis in several respects, including his identification, and discussion, of the state‘s asserted “compelling” interest involved in this case, and the state‘s burden of proof to justify the overriding of plaintiffs’ First Amendment rights. I am equally persuaded that Justice BOYLE‘s opinion is internally inconsistent and, with all respect, does not support her ultimate conclusion that the state is not required, in this case, to justify the interference with plaintiffs’ fundamental First and Fourteenth Amendment rights.
A
Chief Justice WILLIAMS identifies the state‘s interest as “ensuring that all teachers have met certain minimum requirements . . . .” Ante, p 467. The Chief Justice, however, in his subsequent discussion, refers to the state‘s interest in the “education of its citizens” as the compelling interest involved. Ante, p 478. Finally, the Chief Justice reaches his analytical conclusion in reconciling the inconsistent identification of the “compelling” interest involved:
Therefore, to the extent that certification of teachers furthers education, it can be considered a compelling state interest. [Ante, p 481.]
While the Chief Justice‘s failure to consistently identify the “compelling” state interest involved is confusing, the ultimate utility to his analysis is obvious. In considering the free exercise issue presented, the Chief Justice ignores the second aspect of the constitutionally mandated heightened standard of review: whether enforcing the certification requirement, as applied to plaintiffs, is essential to the fulfillment of the asserted “compelling” governmental interest. Chief Justice WILLIAMS avoids this crucial determination and concludes, as did the Court of Appeals, that as long as the state‘s interest in the “education of its citizens” is a “compelling” interest the state need only show that the certification requirement is theoretically rationally related to the furtherance of that interest to justify the infringement of plaintiffs’ First Amendment rights. While the
In addition to applying what is, in my opinion, an incorrect standard of review, the Chief Justice obscures the nature of the governmental interest involved in this case. The governmental interest involved in this case is not the state‘s interest in providing “the opportunity of an education”71 to its citizens. Whether the state is achieving that com
[W]hen the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a “reasonable relation to some purpose within the competency of the State” is required to sustain the validity of the State‘s requirement under the First Amendment. [Id., 233.]
B
Justice BOYLE‘S discussion and application of the required standard of review and the factual record in this case is perplexing. Justice BOYLE acknowledges that plaintiffs’ First Amendment claims re
“First, when the government attempts to deny a Free Exercise claim, it must show that an unusually important interest is at stake, whether that interest is denominated ‘compelling,’ ‘of the highest order,’ or ‘overriding.’ Second, the government must show that granting the requested exemption will do substantial harm to that interest . . . .” [Emphasis added. Ante, p 489, quoting Goldman v Weinberger, 475 US —; 106 S Ct 1310, 1325; 89 L Ed 2d 478, 498 (1986) (O‘Connor, J., dissenting).]
Justice BOYLE declines applying that standard of review in this case, however, ultimately concluding that she “do[es] not find it necessary to require the state in this case to show with more particularity how its compelling interest in compulsory education will be adversely affected by granting an exemption to plaintiffs.”73 Ante, p 511. While the rationale asserted in reaching that conclusion is unclear, it seems to be based upon a “belief/action and direct/indirect” interference analysis (ante, p 490), the Court‘s recent decision in Goldman, supra, and interpreting Yoder, supra, for the proposition that plaintiffs, in free exercise cases, have the burden to “clearly and convincingly” establish the existence of a lesser restrictive alternative to the challenged regulations. Ante, p 501. I am persuaded that Justice BOYLE‘S analysis does not sup
The “belief/action and direct/indirect” dichotomies, discussed but not relied upon in Justice BOYLE‘S opinion, have long been abandoned in the controlling decisions of the United States Supreme Court, inasmuch as either would be applicable in the present case.74 The argument that the Free Exercise Clause protects only religious “belief” and, therefore, that religiously grounded “actions” are outside the protections of the First Amendment, accepted in Reynolds v United States, 98 US 145; 25 L Ed 244 (1878), was expressly rejected in Cantwell v Connecticut, 310 US 296; 60 S Ct 900; 84 L Ed 1213 (1940), and again more recently in Yoder, supra, 219-220, in which the Court noted that several state courts were continuing to rely upon that rejected dichotomy. Id., 219, n 10. See also id., 247 (Douglas, J., dissenting in part).
Whether state action based on one‘s religious belief is, under any circumstances and in all cases, absolutely prohibited by the First Amendment is an issue not implicated in the present case. Plaintiffs have certainly not argued that their free exercise rights are absolute; their argument is that enforcing the constitutionally suspect legislation in question is not essential to vindicate a compelling state interest. Justice BOYLE‘s statement that “this Court ‘should be cautious in expanding the scope
Likewise, the argument that legislation which imposes only indirect burdens upon the free exercise of religion (i.e., coerces individuals to choose between receiving a governmental benefit or privilege and adhering to religious belief) is outside the protections afforded by the Free Exercise Clause, or that such legislation mandates a lower level of judicial scrutiny, has consistently been rejected. See, e.g., Bob Jones Univ, Lee, Thomas, Yoder, Sherbert, and Braunfeld, supra.
Like the discussion and application of the belief/action and direct/indirect analyses, Justice BOYLE‘S discussion of the recent decision in Goldman, supra, is analytically unrelated to the ultimate premise which supports the basis of her opinion. Nevertheless, I am compelled to express my disagreement with the implication in that opinion that Goldman has effected the standard of review applicable in free exercise cases which arise outside of the military setting.
Goldman is offered for the proposition that in free exercise cases “the higher in rank the governmental interest, the less the need for necessity to support the means chosen to achieve it even where paramount personal rights are directly burdened.” Ante, p 505. That proposition seems to relate to the unsupported statement that “the Supreme Court has acknowledged that certain government interests are so compelling that the state need not show that the means chosen is absolutely essential
That Goldman is sui generis because it concerned a military regulation is unquestionable. In deciding “the appropriate level of scrutiny of a military regulation that clashes with a constitutional right,” the five-member majority, per then Justice Rehnquist, said, relying upon a long line of cases:
“[T]he military is, by necessity, a specialized society separate from civilian society.”
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The essence of military service “is the subordination of the desires and interests of the individual to the needs of the service.”
*
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“[W]ithin the military community there is simply not the same [individual] autonomy as there is in the larger civilian community.”
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Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society.
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“Judicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.” [Goldman, supra, 89 L Ed 2d 483-484. Citations omitted.]
The Goldman majority appears to have applied a rational-basis standard of review to the military regulation challenged in that case, although Justice Brennan, dissenting, described it as “a subrational-basis standard — absolute, uncritical ‘deference to the professional judgment of military
Justice BOYLE‘S ultimate analysis is based upon an interpretation of Yoder, supra, for the proposition that individuals asserting free exercise claims, in addition to having the burden of establishing that the regulation challenged interferes, in fact, with the free exercise of their sincerely held religious beliefs, also have the burden of establishing “the sufficiency of their alternative mode” of advancing the state‘s asserted interests. Ante, p 503. I am persuaded that that proposition is not only unsupported by Yoder, it is internally inconsistent. Justice BOYLE states that “once a plaintiff has established that a regulation burdens the exercise of religion, the state must establish that a ‘compelling state interest’ is at issue and that the interest cannot otherwise be served.” (Emphasis added.) Ante, p 498. The second aspect of the state‘s burden of proof in this regard relates to the necessity of enforcing the regulation to fulfill the state‘s asserted interest. Because the remedy in free exercise cases is exemption, that analysis requires the state to show that granting the exemption would interfere with the state‘s asserted interest. If the state has not shown that granting the exemption would, to any extent, adversely affect the achievement of the asserted “compelling” interest, it has not shown, a fortiori, that the interest “cannot otherwise be served” or that “no less intrusive alternative means” is available. In such situations, an entirely nonintrusive alternative is available,
Justice BOYLE‘S application of Yoder in the present case is inapposite. In Yoder, the Court implicitly conceded that the Amish children who failed to attend high school would not receive the same level of intellectual learning and, thus, that the state‘s objective would not be as fully realized if an exemption were given. The Court went further, however, and held that the resulting adverse effect upon the achievement of the state‘s interest did not unduly interfere with the fulfillment of that interest. Thus, the Court implicitly held that it was not quite sufficient for the state to show that an exemption would impair its ability to fully achieve its goals; an exemption was required even at some slight sacrifice to the state‘s objectives. Yoder, thus, stands for the proposition that the state‘s interest must be read broadly and flexibly in determining whether that interest could still be fulfilled if an exemption were granted.75
Contrary to Justice BOYLE‘S assertions, the standard of review I would apply would not require the state to prove that “granting [an] exemption would effectively destroy the government‘s ability to achieve its purpose.” Ante, p 506. Nor have I intended to imply that “the claim of religious practice as well as the burden thereon is defined by the claimant and that scrutiny of the claim is perhaps beyond the competence of the judiciary.” Id. Whether a plaintiff‘s objection to a regulation is based upon sincerely held religious beliefs is, of course, a factual question and, as such, is reviewable accordingly. If that question is determined in the negative, the court need not proceed to determining whether the state has established its burden to justify the enforcement of that regulation, as applied, because no bona fide religious objection had been established.
In the present case, Justice BOYLE seems to determine “that compliance with the state teacher certification program will [not] endanger or restrict the free exercise of [plaintiffs‘] religious beliefs” (ante, p 508), although she does not expressly reverse the trial court‘s contrary factual determination. Nevertheless, she then proceeds to apply the “strict scrutiny” standard of review. See ante, pp 498-499, n 21. In applying that standard of review, however, she shifts the state‘s burden to
Justice BOYLE‘S analysis exemplifies the inappropriateness of the “balancing test” she asserts in construing the individual rights and concomitant limitations upon governmental authority embodied in the First and Fourteenth Amendments. While the methodology expressed concerning the applicable factors in applying that “balancing test” (ante, pp 505-508) is sociologically interesting, such a discretionary nondefinitional standard provides no guidance to the judiciary in deciding free exercise cases and no ascertainable standard of appellate review. The constitutional principles consistently applied in the controlling decisions of the United States Supreme Court, to be sure, have resulted in striking a necessary balance between the rights of the individual and the interests of government. That balance, however, is a necessary end and not a means to avoid enforcing the limitations upon majoritarian authority inherently required to safeguard the fundamental individual rights which, by our form of government, have been withheld from governmental restriction. It is beyond question that the state must justify restricting First Amendment rights; the individual need not justify nonrestriction.
C
Chief Justice WILLIAMS and Justice BOYLE would
VII
Plaintiffs also contend that the intrusive and broadly expressed continuous regulatory authority over the existence and operation of their religious schools imposed by the private and parochial schools act of 1921 violates the Establishment Clause. Having expressly adopted the limiting constructions of the curriculum, licensing, supervision, and enforcement provisions of the act, discussed in part III, I would be persuaded that the teacher certification requirement alone would not create the excessive entanglement that the constitution forbids. I would emphasize, however, that my conclusion in this regard would be premised upon the limiting constructions adopted.
Nevertheless, I would be unable to conclude that the teacher certification employment regulation alone results in creating excessive church-state entanglement to an extent violative of the Establishment Clause.
VIII
In summary, I would resolve several of the constitutional issues originally adjudicated on nonconstitutional grounds by expressly adopting a limiting construction of the curriculum, licensing, and supervision provisions of the act, and reverse
Further, I would reverse the decision of the Court of Appeals with regard to plaintiffs’ free exercise challenge to the enforcement of the teacher certification regulation and reinstate the trial court‘s decision enjoining the enforcement of that statutory requirement as applied. The enforcement of the teacher certification statute, which would allow closing down plaintiffs’ schools and compelling the children attending those schools to attend the public schools or an “approved” nonpublic school against the wishes of the children‘s parents, would be violative of the First Amendment‘s Free Exercise Clause. The state has not established, to the extent required by the constitution, the necessity of overriding plaintiffs’ First Amendment rights; establishing that the teacher certification regulation is rationally related to the governmental interest in compulsory education, however strong that interest may be, is insufficient. Until the state can show otherwise, plaintiffs, who have established a bona fide religious conflict to compliance with that statutory regulation, are constitutionally entitled to exemption.
Finally, I would hold that the teacher certification provision of the act does not violate the Establishment Clause.
LEVIN and CAVANAGH, JJ., concurred with RILEY, J.
ARCHER, J., took no part in the decision of this case.
Notes
Because there is no evidence in the record that there is a shortage of certified teachers deemed religiously qualified by the plaintiffs or that the plaintiffs have been unable to fill their teaching positions, we offer no opinion as to the applicability of this provision in those circumstances.
See Pierce v Society of Sisters, supra, compare Wisconsin v Yoder, supra. See also Project, education and the law: State interests and individual rights, 74 Mich LR 1373, 1434-1435 (1976).In Sherbert v Verner, 374 US 398 [83 S Ct 1790; 10 L Ed 2d 965] (1963), and Thomas v Review Board, 450 US 707 [101 S Ct 1425; 67 L Ed 2d 624] (1981), the Court required the States to demonstrate that their challenged policies were “the least restrictive means of achieving some compelling state interest” in order to deprive claimants of unemployment benefits when the refusal to work was based on sincere religious beliefs. Thomas, supra, at 718. See also Sherbert, supra, at 406-408. In Wisconsin v Yoder, 406 US 205, 215 (1972), the Court noted that “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion” in deciding that the Amish were exempt from a State‘s requirement that children attend school through the age of 16. In United States v Lee, 455 US 252, 257-258 [102 S Ct 1051; 71 L Ed 2d 127] (1982), the Court stated that “[t]he State may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest,” and held that the Amish could not exempt themselves from the Social Security system on religious grounds. See also Gillette v United States, 401 US 437 [91 S Ct 828; 28 L Ed 2d 168] (1971) (rejecting claims under the Establishment and Free Exercise Clauses to the Federal Government‘s refusal to give conscientious-objector status to those objecting on religious grounds only to a particular war rather than to all wars).
Those states are: Hawaii, Idaho, South Dakota, Washington and Iowa. See n 58. At the time of this writing, the Iowa Legislature, upon the recommendation of a special Governor‘s task force report, is considering abrogating that state‘s certification requirement. See n 59.Act 302, 1921, p 560; eff August 18.
AN ACT to provide for the supervision of private, denominational and parochial schools; to provide the manner of securing funds in payment of the expense of such supervision; to provide the qualifications of the teachers in such schools; and to provide for the endorsement of the provisions hereof.
The People of the State of Michigan enact:
Sec. 1. The superintendent of public instruction is hereby given supervision of all the private, denominational and parochial schools of this state in such matters and manner as is hereinafter provided. He shall employ such assistants and employes as may be necessary to comply with the provisions hereof and fix the compensation thereof; the number of assistants and employes and the compensation payable thereto being subject to the approval of the state administrative board. Such salaries and expenses shall be paid by the treasurer of the state of Michigan upon the warrant of the auditor general from the fund as herein designated, at such time and in such manner as other state officers and employes are paid. The superintendent of public instruction shall have the authority to remove any appointee under this act at any time that he may deem such removal advisable. It is the intent of this act that the sanitary conditions of such schools, the courses of study therein, and the qualifications of the teachers thereof shall be
of the same standard as provided by the general school laws of the state. [Sec. 2. A private, denominational or parochial school within the meaning of this act shall be any school other than a public school giving instruction to children below the age of 16 years, in the first 8 grades as provided for the public schools of the state, such school not being under the exclusive supervision and control of the officials having charge of the public schools of the state. [
Sec. 3. No person shall teach or give instruction in any of the regular or elementary grade studies in any private, denominational or parochial school within this state who does not hold a certificate such as would qualify him or her to teach in like grades of the public schools of the state: Provided, however, That any person who shall have taught in any elementary school or schools of the standard specified in this act for a period of 10 years or more preceding the passage of this act, shall, upon filing proof of service with the superintendent of public instruction, be entitled to a certificate by said superintendent of public instruction in such form as he shall prescribe, to teach in any of the said schools within the state: Provided further, That teaching in such schools shall be equivalent to teaching in the public schools for all purposes in obtaining a certificate: Provided further, That the teachers affected by this act may take any examination as now provided by law and that the superintendent of public instruction may direct such other examinations at such time and place as he may see fit. In all such examinations 2 sets of questions shall be prepared in subjects ordinarily written on Saturday, 1 of which sets shall be available for use on Wednesday by applicants who observe Saturday as their Sabbath; Provided further, That any certificate issued under or by virtue of this act shall be valid in any county in this state for the purpose of teaching in the schools operated under this act; Provided further, That any person holding a certificate issued by the authorities of any recognized or accredited normal school, college or university of this or other state shall be entitled to certification as now provided by law: Provided, however, That teachers employed in such private, denominational or parochial schools when this act takes effect shall have until September first, 1925, to obtain a legal certificate as herein provided. [
Sec. 4. In event of any violation of this act the superintendent of public instruction shall serve the person, persons, corporation, association or other agencies who operate, maintain and conduct a private, denominational or parochial school within the meaning of this act with a notice, time and place of hearing, such hearing to take place within 15 days after the date of said notice and at a place located in or conveniently near the county where such violation took place, accompanied by a copy of the complaint stating the substance of said violation: Provided, That no person shall be called to attend any such hearing on any day observed by him as the Sabbath.
If at such hearing the superintendent of public instruction shall find that the violation complained of has been established he shall then serve said person, persons, corporation, association or other agencies with an order to comply with the requirements of this act found to have been violated within a reasonable time not to exceed 60 days from the date of such order: Provided, That in the event that such order refers to sanitary conditions that the said person, persons, corporation, association or other agencies shall have 6 months in which to remedy the defect. If the order of the superintendent of public instruction as specified in said notice shall not have been obeyed within the time specified herein said superintendent of public instruction may close said school and prohibit the said person, persons, corporation, association or other agencies operating or maintaining such private, denominational or parochial school from maintaining said school or from exercising any of the functions hereunder until said order of the superintendent of public instruction has been complied with. The children attending a private, denominational or parochial school refusing to comply with the requirements hereof after proceedings herein set forth shall be compelled to attend the public schools or approved private, denominational or parochial school under the provisions of the compulsory education act, the same being Act. No. 200 of the Public Acts of 1905, as amended. And it shall be the duty of the person or persons having charge of the enforcement of the said compulsory education act, upon notice from the superintendent of public instruction that said private, denominational or parochial school has not complied with the provisions hereof, to compel the attendance of the children of said school or schools at the public schools or approved private, denominational or parochial school. [In reaching its decision in this case, reversing the trial court‘s ruling, the Court of Appeals also applied that standard of review. The Court of Appeals reasoned:We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O‘Brien‘s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to
§ 12(b)(3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O‘Brien can be constitutionally convicted for violating it.
Plaintiffs have urged that there is no compelling state interest in any of the specific state requirements involved in this case but this argument misplaces the emphasis. The issue is not whether there is a compelling state interest in any individual regulation but whether the individual regulations are reasonable means to give effect to a broader compelling state interest—in this case the provision of an education to all children, for the reasons stated herein, we believe the regulations are a reasonable exercise of state authority in the field of education. [Emphasis added. Sheridan Church v Dep‘t of Ed, 132 Mich App 1, 22; 348 NW2d 263 (1984).]
The state board reserves the right to determine the acceptability of credits presented for certification from approved teacher education institutions located in other states.
An applicant for a provisional certificate shall have been granted a bachelor‘s degree and shall be recommended by a Michigan college or university approved for teacher education by the state board.
The state board may issue a provisional certificate to a person who has, or who is reported eligible for, a teaching certificate issued by the certificating authority of any state in which requirements for certification are deemed equivalent to those in effect in this state. [Emphasis added.]
It is true that activities of individuals, even when religiouslyIt can . . . be assumed that a teacher with a college degree will in almost all cases be a better teacher than one with little or no education. The teacher with a college degree, has, at the very least, demonstrated the mastery of certain basic skills. [Baker, Regulation of fundamentalist Christian schools: Free exercise of religion v the state‘s interest in quality education, 67 Ky LJ 415, 427 (1979).]
Despite the accusation of the opinion for reversal, we do not suggest that “legislation which imposes only indirect burdens upon the free exercise of religion . . . is outside the protections afforded by the Free Exercise Clause, or that such legislation mandates a lower level of judicial scrutiny. . . .” Post, p 572. The trial court found that, as currently implemented, § 1 of the act requires the curricula of nonpublic schools to be “comparable” to public schools in the same district, and that local school district officials are charged with evaluating nonpublic schools. The court found, further, that guidelines for local school district officials in evaluating nonpublic schools do not exist.The Superintendent of the Bridgeport Spalding Community School District, within which plaintiffs’ schools are located, testified that it was within his power to determine whether a nonpublic school was “comparable” and that in his opinion nonpublic schools must teach “appropriate” courses of the same quality as those taught in the public schools within the district.
The superintendent also admitted concern with the loss of $2,000 in state aid for every student who leaves the public school and enrolls in area nonpublic schools when plaintiffs introduced a newsletter entitled The Spotlight which is sent to “key communicators in the school district” by the superintendent. The superintendent read the following excerpts from that publication into evidence:
The trial court found that local school district officials are ill-prepared to implement the broad provisions of the act and the corresponding provisions of the compulsory attendance statute without guidelines, and expressed concern that they have a vested interest in maintaining enrollment in the public schools. Circuit court opinion, part v, issued December 29, 1982.At the present time, we in the school district have established some basic principles we hope will assist us in getting by during this economic depression. . . . Number 4, to prevent loss of students to nonpublic schools . . . . We lose $2,000 for every student who leaves our school district.”
- Can the state satisfy its burden of establishing compelling state interest if it introduces no evidence of any kind to substantiate its assertions of such interest?
- Is there proof that compelling state interest is served when there is no scientific or academic evidence that children learn better from certified teachers than when they are taught by their uncertified parents at home?
- Has North Dakota chosen the least restrictive alternative to assure its interests in education, in view of [the] fact that all 22 states enacting home school laws in [the] past 30 years have not made such [a] requirement? [55 USLW 3101 (August 12, 1986).]
(Continued)Although we join the Court‘s opinion and its strict-scrutiny approach for election cases, we add these comments to record purposefully, and perhaps somewhat belatedly, my unrelieved discomfort with what seems to be a continuing tendency in this Court to use as tests such easy phrases as “compelling [state] interest” and “least drastic [or restrictive] means.” . . . we have never been able fully to appreciate just what a “compelling state interest” is. If it means “convincingly controlling,” or “incapable of being overcome” upon any balancing process,
then, of course, the test merely announces an inevitable result, and the test is no test at all. And, for me, “least drastic means” is a slippery slope and also the signal of the result the Court has chosen to reach. A judge would be unimaginative indeed if he could not come up with something a little less “drastic” or a little less “restrictive” in almost any situation and thereby enable himself to vote to strike legislation down. This is reminiscent of the Court‘s indulgence, a few decades ago, in substantive due process in the economic area as a means of nullification.
I feel, therefore, and have always felt, that these phrases are really not very helpful for constitutional analysis. They are too convenient and result oriented, and I must endeavor to disassociate myself from them. [Citations omitted.]
More recently, in Bowen v Roy, n 6 supra, 90 L Ed 2d 749, n 17, three other justices expressed doubt concerning the propriety of applying strict scrutiny to free exercise claims. See n 21.
My colleagues have inappropriately treated plaintiffs’ position in this regard as a dismissal of their appeal from the Court of Appeals decision.Gerald M. Somero, pastor of Sheridan Road Baptist Church, testified that a certified teacher could teach at the church school without violating the tenets of the church, and that the church school currently employed a certified teacher.
At least three possible constructions could be given to the phrase “provided by the general school laws of the state“: courses mandated in the general school laws expressly for nonpublic schools, which would include only Civics and Government ((Continued)In the leading case of Pierce v Society of Sisters, 268 US 510 (1925), the Court held that although it would not question Oregon‘s power to compel school attendance or require that the attendance be at an institution meeting State-imposed requirements as to quality and nature of curriculum, Oregon had not shown that its interest in secular education required that all children attend publicly operated schools. A premise of this holding was the view that the State‘s interest in education would be served sufficiently by reliance on the secular teaching that accompanied religious training in the schools maintained by the Society of Sisters. Since Pierce, a substantial body of case law has confirmed the power of the States to insist that attendance at private schools, if it is to satisfy state compulsory-attendance laws, be at institutions which provide mini-
Department of Education publication, Statutory Provisions for the Establishment and Operation of Elementary and Secondary Non-Public Schools, p 12. That publication states, additionally, that “[s]pecific subject contents, as prescribed by the legislature in the General School Law, [must] be included in the basis [sic] course of study of the nonpublic school.”mum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction. Indeed, the State‘s interest in assuring that these standards are being met has been considered a sufficient reason for refusing to accept instruction at home as compliance with compulsory education statutes. These cases were a sensible corollary of Pierce v Society of Sisters: if the State must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function.
(b) a child who is employed as a page or messenger in the Legislature during the period of employment;
(c) a child under nine years old who does not reside within two and one-half miles of a public school;
(d) a child from the age of twelve to fourteen while in attendance at Confirmation classes;
It is readily apparent that virtually every action that the Government takes, no matter how innocuous it might appear, is potentially susceptible to a Free Exercise objection. For example, someone might raise a religious objection, based on Norse mythology, to filing a tax return on a Wednesday (Woden‘s day). Accordingly, if the dissent‘s interpretation of the Free Exercise Clause is to be taken seriously, then the Government will be unable to enforce any generally applicable rule unless it can satisfy a federal court that it has a “compelling government interest.” While libertarians and anarchists will no doubt applaud this result, it is hard to imagine that this is what the Framers intended. [Bowen v Roy, n 6 supra, 90 L Ed 2d 749, n 17 (opinion of Chief Justice Burger, with Justices Powell and Rehnquist concurring).]
Chief Justice Burger‘s comment appears to be based in part upon the expansive view of religion taken by the Supreme Court in free exercise cases. While the Court has expressed the view that beliefs based on secular considerations are not entitled to the same deference as beliefs based on religious concerns, see Wisconsin v Yoder, supra, 215-216, cf. Braunfeld v Brown, supra, 605-606, the Court has consistently indicated a willingness to accept a petitioner‘s assertion that the enforcement or adherence to a regulation is a burden upon the petitioner‘s religious belief without questioning the petitioner‘s interpretation of that religious belief. See, e.g., United States v Lee, supra, 257; Thomas v Review Bd of Indiana, supra, 716. This approach is based on an aversion to the Court‘s formulation of a definition of religion, a most delicate endeavor which could pose a threat to religious pluralism.
Given the present posture of the Supreme Court, it is not difficult to embrace Chief Justice Burger‘s prediction. It is more likely, however, in our judgment, that rigid application of the compelling state interest standard articulated in the dissent to Bowen v Roy will result in an unfortunate dilution of the standard itself. See also Note, The myth of religious neutrality, 71 Va LR 127, 159 (1985).
(e) a child enrolled in the public schools attending religious instruction classes for not more than two class hours per week, upon written request of the parent. Statutorily prescribed courses include: critical health problems education ((a) the name and age of each child who is enrolled at the school.
(b) The number or name of the school district and the city or township and county in which the parent, guardian, or person in parental relation resides.
(c) The name and address of the parent, guardian, or other person in parental relation.
(d) The name and age of each child enrolled in the school who is not in regular attendance. [
Such a right was recognized at common law. See, e.g., Gordon v Los Angeles Bd of Ed, 78 Cal App 2d 464, 480; 178 P2d 488 (1947);
That parents should have the prior right, and primary role, in directing the education of their children was endorsed by the United Nations General Assembly in The Universal Declaration of Human Rights, GA Res 217, art 26 (1948) (cited in Project, Education and the law: State interests and individual rights, 74 Mich LR 1373, 1389, n 83 [1976]).
Consideration of the nature and scope of the unenumerated, though constitutionally recognized, fundamental “substantive” rights embodied in the Due Process Clause of theQ. [Plaintiffs’ Attorney]: Does the church maintain and operate a school?
A. [Mr. Ouellette]: Yes, we do, the Bridgeport Baptist Academy.
Q. Is the school incorporated?
A. No, sir, the school is a ministry of our church and therefore not separately incorporated.
* * *
Q. Can you describe the relationship between the church and the school?
A. Yes. As I mentioned, the school is an integral part of the church‘s ministries. All of our teachers of our school are members of our church. We don‘t maintain a separate checking account for the school. In fact, all the teachers’ paychecks come from the First Baptist Church general fund. The governing body of the church is also the governing body of the ministry. In every way we treat the school as one of the many ministries of our church.
Q. Why does the church operate a school?
A. The only reason we operate our school is because the Bible says, Deuteronomy, chapter six, that we are responsible to give to our children a godly education. The reading of that chapter will bear out the fact that it is to be a continual education, not something that takes place occasionally or on the weekend, but something that is to be done on a daily basis. So we have a divine mandate to give godly teaching and instruction to our children.
Religious expert, Dr. Rousas J. Rushdoony, testified with respect to modern fundamentalist Christian beliefs, and their relationship to orthodox Christianity. Dr. Rushdoony described the relationship of plaintiffs’ churches’ schools to fundamentalism as follows:
The word “church” to fundamentalism, because of it‘s [sic] biblical emphasis, is reproducing the meaning that character
Well, fundamentalism has gone back to that definition which, as I indicated, has roots in the old testament. In the old testament the ministry was two-fold: A priestly ministry that was sacrificial and levitical which was instructional. Deuteronomy 33:10 says that the function of the Levites is to be the instructors of Israel. And in Jeremiah 10:2 the warning is emphatically given from God, “Learn not the ways of the heathen.” So that education is to be a function of the levitical ministry.
Well the early church, of course, did not have a sacrificing priesthood; it had a levitical ministry, and therefore it carried on the functions of the synagogue. Now, this, with barbarian invasions and the overthrow of Rome, collapsed, was reestablished with the medieval church, with the onset of enlightenism and humanism. Again there was a collapse in the educational ministry. In this country state control of education began only with Horace Mann and his associates in the early 1830s. Now we are having a return to the older concept so that fundamentalist Christianity is reviving the historic faith at this point.
* * *
The school is an integral part of the ministry of the church, since the ministry is an instructional ministry from the pulpit and from the classroom. Throughout its functioning the fundamentalist church is a levitical or instructional ministry.
Dr. Rushdoony testified with respect to fundamental Christian teaching concerning the role of the state, the religious concept of limited state “sovereignty,” and the historical origin of those beliefs in both American and world history. Responding to the question whether fundamentalist Christian faith has any scriptural mandates with regard to the education of their children, he said:
Yes they do. They believe very strongly the children belong to the Lord, not to the State, and therefore they are to be reared in the nurture and admonition of the Lord. They believe that separation, the premise in terms in which their churches are established, applies very strictly also to their children as well as to their personal lives.
In determining a teacher‘s qualifications, educational background is considered by both churches. The record reflects, for example, that all of the teachers, teaching in grades one through twelve, employed by First Baptist Church of Bridgeport are college graduates.They have to have two types of qualifications. One type is a spiritual qualification. They must feel God has called them to this ministry. They must be born-again Christians. They must believe the Bible and live in and out of the classroom in accordance with our church and our faith. Then they must have the technical abilities to communicate truth to the students.
To teach in our school is a ministry. It is not simply an occupation or profession. It‘s a calling.
* * *
It‘s a ministry first, because the teacher must give evidence
to us that God is leading them to teach from a biblical perspective. We are not interested in folks who merely want a job. Secondly, it‘s a ministry because every teacher has as their goal reaching the child with the gospel of Jesus Christ. Seeing that child accept the Lord Jesus as their savior and as their Lord.
Then every teacher has as their goal the inculcation into the child‘s life a behavior of Christian principles, moral standards that are found in God‘s word.
Pastor Ouellette, articulated the religious conflict presented as follows:Certification in the manuals from the State that I have read concerning certification refers to it as a license oftentimes. Licensing presupposes an agency or group or an entity that can designate what criteria by—it sets up the framework by which one must meet to be able to be licensed. Now I have a problem with that, because God has called our teachers to teach. He has
already certified them in eternity. He has given us the criteria whereby we discern who we hire. And to place another entity or body above the local testament church and who it hires is to place somebody above God, and we cannot do that.
It‘s based upon, first of all, a scriptural conviction that we have an obligation as individuals to obey God even if others would differ with us. In the book of Acts, chapter five verses 27 and 28 and 29, Apostle Peter and others have been charged “not to teach in this name.” That‘s a quote. “Peter and the other apostles answer and say, we ought to obey God rather than men.”
So if the state were permitted to certify and require certification of all of our teachers, the very first, very negative affect [sic] it would have on us is they would be put into a position of determining whether or not a person is obeying God‘s call for their life.
The second thing we have a problem with is because all of our teachers are church employees and church staff, the state has stepped into the area of licensing church staff.
We have a further problem because, as I understand the laws of the State of Michigan, to get a continuing certificate, a teacher must take 18 hours of postcollege work, postgraduate work at a state-approved institution. The Bible tells us in Proverbs 19 and 27, “[c]ease to hear, my son, the instruction that causes you to err from the word of knowledge.”
For example,
An applicant for a provisional certificate shall demonstrate that he has an acquaintance with the substance, concepts, and methods of the principal areas of human knowledge, and skills essential to communication and inquiry in modern society.
The methods and materials of instruction appropriate to the elementary or secondary level.
Plaintiffs emphasize that their religiously required beliefs, with respect to education, are, necessarily, inconsistent with those of the state, and of the state-approved teacher training institutions within this state of which none are of the fundamentalist faith.
Likewise, the requirements imposed by
The sincerity, and magnitude, of plaintiffs’ religiously based objection to modern education theory is exemplified in Sheridan Road‘s Parent-Student Handbook, in which the fundamentalist theory of education is contrasted with that of “the world.”
Ms. Kwaitkowski would be prohibited from fulfilling her religious obligation within this state.
The Court: Mr. Gartner [Defense Attorney], you are not coming before the Court claiming that the children at issue, relative to the plaintiffs, are receiving at this point in time inadequate education?
Mr. Gartner: No, not at all.
The Court: So we are talking primarily relative to the impact of the administrative rights here one way or another. It‘s not—there is no allegation on your part that the children are being deprived of an education or are being miseducated as a result of some factor which brings this before the Court?
Mr. Gartner: No. No.
- the ability to understand children and the yearning to teach them;
- earnestness; taking education seriously and children seriously;
- formal study of methods and tests.
Dr. Kirk concluded by opining that the state‘s interests in promoting quality education is best served by encouraging diversity and variety, competition, and freedom of choice, and, thus, that accommodating plaintiffs’ religious conflict regarding complying with the certification regulation, rather than “wiping [them] out,” would actually further the state‘s broad interest in education.
The testimony of education expert, Dr. Donald A. Erickson, also supports the conclusion that plaintiffs can achieve excellence in education without compliance with the certification requirement. Dr. Erickson testified with respect to the factors or conditions which influence the success of “good” schools, with reference to empirical and scholarly research. He testified that the most important factor is the social climate of the school, “a climate of stable discipline,” and “a focus on student learning” on the part of the students and their parents. Dr. Erickson testified with respect to the learning environment found in religious schools, as contrasted with the public schools, and discussed the results of empirical studies on the topic. Finally, Dr. Erickson emphasized that the commitment of teachers and involvement of parents in the educational process are positive factors, and commented with respect to data evidencing the existence of such involvement in religious schools. He further emphasized and explained that, unlike other professions (e.g., law, medicine, architecture), teaching is founded upon no clearly established knowledge base; it is in no sense comparable to professions which possess “a body of clinical knowledge,” or a “body of accumulated wisdom,” or “specific prescriptions for practice.” He referred to empirical data in supporting his opinion that the governmental interest in compulsory education would not be threatened by granting religious exemptions for compliance with the certification regulation.