Petition — Duro v. District Attorney, Second Judicial District of North Carolina

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IN THE ' @@ 12 1983

SUPREME COURT OF THE UNITED STATES

ALEXANDER L. STEVAS,

SRI o wk Xi

October Term, 1983.

No. 83-

PETER DURO,

Petitioner,

vs.

DISTRICT ATTORNEY, SECOND

JUDICIAL DISTRICT OF

NORTH CAROLINA,

Respondent.

PETITION FOR WRIT

OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

George Daly

101 N. McDowell Street

Suite 226

Charlotte, N.C. 28204

Tel: (704) 333-5196

Counsel for Petitioner

OF COUNSEL:

Norman B. Smith

North Carolina Civil Liberties

Union Legal Foundation, Inc.

700 Southeastern Building

Greensboro, N.C. 27401

Tel: (919) 274-2992

QUESTION PRESENTED

Whether North Carolina, which has

radically diminished regulation of

religious schools because of an announced

State policy in favor of religious

liberty, and which requires of these

schools only that they notify the State

that they are in operation, keep pupils

in attendance for the same days and hours

as do public schools, comply with health

and safety requirements and administer

periodic standardized tests, has a suffi-

ciently weighty interest to allow it to

prosecute petitioner for not sending his

children to a public or religious school

which petitioner's sincere Biblical

beliets prohibit him from allowing his

children to attend, when petitioner

provides a comprehensive academic educa-

tion for his children in his home.

TABLE OF CONTENTS

Pages

Petition for Writ of Certiorari

- Questions Presented i

- Table of Authorities ii

- Reported Opinions Below 1

- Ground of Jurisdiction of

this Court 1

- Constitutional Provisions

and Statutes 1

- Statement of the Case 10

- Argument 18

Appendix

Memorandum of Devrision of

the United States District

Court for the Eastern

District of North Carolina A-2

- Opinion of the United

States Court of Appeals

for the Fourth Circuit A-16

Science 504 Lifepac Test

of the Alpha Omega

Christian Curriculum A-32

Mathematics 805 Lifepac

Test of the Alpha Omega

Christian Curriculum A-35

- Language Arts 502 Lifepac

Test of the Alpha Omega

Christian Curriculum

- Social Studies 702 Lifepac

Test o1 the Alpha Omega

Christian Curriculum

ae.

A-40

TABLE OF AUTHORITIES

Cases Pages

Wisconsin vs. Yoder, 16,29; 20.

406 U.S. 205 (1972) ei, .20

State vs..Riddle, 285

S.E.2d 359 (W.Va. 1981) 21

Board of Education vs.

Allen, 392 U.S. 236,

246-47 (1968) 22

People vs. Turner, 121

Cal. App.2d 861, 263,

P.2d 685 (1953) 22

Korematsu vs. United

States, 323 U.S. 214,

225 (1944) 25

Meyer vs. Nebraska,

262 U.S. 390 (1923) 27

Pierce vs. Society of

Sisters, 265 J.S. 510

(1925) 27

Prince vs. Massachusetts,

321 U.S. 156 (1944) ar

Constitutional Provisions

United States Constitution

- First Amendment i

North Carolina Constitution

- Art. 1, Sec. 13 23

Statutory Provisions

28 U.S.C. 1254(1)

ae U.8.0. 3943 3)

42 U.S.C. 1983

Oa aa <a — en ee ee ee

NMnANnNDANRANAN MN

2S.

.S.

» 1150-547

n”

115C

115C-378

- 115C-548

~» 115C-549

-» 115C-550

» 115C-551

» 115C-552

» 115C-553

» 115C-554

» 115C-555

Biblical Authorities

i Cor.

Deut.

Mark 16:17-18

Romans 10:9

Other

Rev. Stat. Alberta (Canada),

11:24-15, 6

22:5

Ch. S=3 9 143(1)(a)

REPORTED OPINIONS BELOW

The District Court opinion is not

reported. The Circuit Court opinion is

reported at 712 F.2d 96 (C.A. 4, 1983).

GROUND OF JURISDICTION OF THIS COURT

The Circuit Court Judgment sought to

be reviewed was dated and entered July

14, 1983. There was no Petition for

Rehearing. No extension of time to file

this Petition for Certiorari has been

sought (or is required). Jurisdiction is

conferred on this Court by 28 U.S.C.

1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES

Constitutional Provisions:

United States Constitution, First

Amendment:

"Congress shall make no law respect-

ing an establishment of religion, or

prohibiting the free exercise thereof;..."

Statutes: North Carolina General

Statutes, Chapter 115C.

"Article 26.

Attendance.

Part 1. Compulsory Attendance.

§ 115C-378. Children between seven and

16 required to attend.

Every parent, guardian or other

person in this State having charge or

control of a child between the ages of

seven and 16 years shall cause such child

to attend school continuously for a

period equal to the time which the public

school to which the child is assigned

shall be in session. No person shall

encourage, entice or counsel any such

child to be unlawfully absent from school.

The principal, superintendent, or

teacher who is in charge of such school

shall have the right to excuse a child

temporarily from attendance on account of

sickness or other unavoidable cause which

does not constitute unlawful absence as

defined by the State Board of Education.

The term "school" as used herein is

defined to embrace all public schools and

such nonpublic schools as have teachers

and curricula that are approved by the

State Board of Education.

All nonpublic schools receiving and

instructing children of a compulsory

school age shall be required to keep such

records of attendance and render such

reports of the attendance of such child-

ren and maintain such minimum curriculum

standards as are required of public

schools; and attendance upon such schools,

if the school refuses or neglects to keep

such records or to render such reports,

shall not be accepted in lieu of attend-

ance upon the public school of the dis-

trict to which the child shall be assign-

ed: Provided, that instruction in a

nonpublic school shall not be regarded as

meeting the requirements of the law

unless the courses of instruction run

concurrently with the term of the public

school in the district and extend for at

least as long a term.

The principal shall notify the

parent, guardian, or custodian of his

child's excessive number of absences from

school after his child has five consecu-

tive or 10 accumulated absences, which-

ever occurs first, unless the principal

is satisfied that these absences are

excused under the established attendance

policies of the local board. Once the

parents are notified, the school attend-

ance counselor shall work with the child

and his family to analyze the causes of

the absences and determine steps, includ-

ing adjustment of the school program or

obtaining supplemental services, to

eliminate the problem. The attendance

counselor may request that a law enforce-

ment officer accompany him if he believes

that a home visit is necessary.

Notification of a parent shall be in

writing and shall state that the parent

may be prosecuted under Part 1 of this

Article if these absences cannot be

justified under the established atten-

dance policies of the local school board.

The principal shall notify the prosecutor

after 30 accumulated absences, unless he

has notified the prosecutor sooner.

Evidence that shows that the parents,

guardian, or custodian were notified and

that the child has accumulated 30

absences which cannot be justified under

the established attendance policies of

the local board shall establish a prima

facie case that the child's parent,

guardian or custodian 4s responsible for

the absences. (1955, c. 1372, Art. 20,

s. 1: 1956, Ex. Sess., ¢.53 1963,

c. 1223, s- 6; 1969, c. 339, c- 799;

s. 1; 1971, c. 846; 1975, c. 678, S. 23

c. 731, 8- 33 1979, c- 8473 1981,

c. 423, s. 1.)

Article 39.

Nonpublic Schools.

Part 1. Private Church Schools and

Schools of Religious Charter.

§ 115C-547. Policy.

In conformity with the Constitution

of the United States and of North Caro-

lina, it is the public policy of the

State in matters of education that 'No

human authority shall, in any case what-

ever, control or interfere with the

rights of conscience,’ or with religious

liberty and that ‘religion, morality and

knowledge being necessary to good govern-

ment and the happiness of mankind...the

means of education shall forever be

encouraged.’ (1979, ¢c. 505; 1981, c. 423,

Se L.-)

§ 115c-548. Attendance; health and

safety regulations.

Each private church school or school

of religious charter shall make and

maintain annual attendance and disease

immunization records for each pupil

enrolled and regularly attending classes.

Attendance by a child at any school to

which this Part relates and which complies

with this Part shall satisfy the require-

ments of compulsory school attendance:

Provided, however, that such school

operates on a regular schedule, excluding

reasonable holidays and vacations, during

at least nine calendar months of the

year. Each school shall be subject to

reasonable fire, health and safety inspec-

tions by State, county and municipal

authorities as required by law. (1979,

o.-505;-_-190i1.,¢. 823, 8. 1.)

§ 115cC-549. Standardized testing

requirements.

Each private church school or school

of religious charter shall administer, at

least once in each school year, a

nationally standardized test or other

nationally standardized equivalent mea-

surement selected by the chief adminis-

trative officer of such school, to all

students enrolled or regularly attending

grades one, two, three, six and nine.

The nationally standardized test or other

equivalent measurement selected must

measure achievement in the areas of

English grammar, reading, spelling and

mathematics. Each school shall make and

maintain records of the results achieved

by its students. For one year after the

testing, all records shall be made avail-

able, subject to the provision of G.S.

115C-196, at the principal office of such

school, at all reasonable times, for

annual inspection by a duly authorized

representati. of the State of North

Carolina. (1979, c. 505; 1981, ¢c. 423,

bs 23s

§ 115C-550. High school competency

testing.

To assure that all high school

graduates possess those minimum skills

and that knowledge thought necessary to

function in society, each private church

school or school of religious charter

shall administer at least once in each

school year, a nationally standardized

test or other nationally standardized

equivalent measure selected by the chief

administrative officer of such school, to

all students enrolled and regularly

attending the eleventh grade. The

nationally standardized test or other

equivalent measurement selected must

measure competencies in the verbal and

quantitative areas. Each private church

school or school of religious charter

shall establish a minimum score which

must be attained by a student on the

selected test in order *o be zraduated

from high school. For one year after the

testing, all records shall ce made avail-

able, subject to the provision of G.S.

115C-196, at the principal office of such

school, at all reasonable times, for

annual inspection by a duly authorized

representative of the State of North

Carolina. (1979, c. 505; 1981, c. 423,

S. 1.)

§ 115C-551. Voluntary vcarticipation

in the State programs.

Any such school may, on a voluntary

basis, participate in any State operated

or sponsored program which would other-

wise be available to such school, includ-

ing but not limited to the nigh school

competency testing ard statewide testing

programs. (1979, c. 505; 1981, c. 423,

6.1.)

§ 115C-552. New school notice

requirements; termination.

(a) Any new school to which this

Part relates shall send to a duly autho-

rized representative of the State of

North Carolina a notice of intent to

operate, name and address of the school,

and name of the school's owner and chief

administrator.

(b) Any school to which this Part

applies shall notify a duly authorized

representative of the State of North

Carolina upon termination of the school.

(1979, c- 505; 1981, c. 423, s. 1.)

§ 115C0-553. Duly authorized

representative.

The duly authorized representative

of the State of North Carolina to whom

reports of commencing operation and

termination shall be made and who may

inspect certain records under this Part

shall be designated by the Governor.

(1979, c. 505; 1981, c. 423, s. 1.)

§ 115c-554. Requirements exclusive.

No scnool, operated by any church or

other organized religious group or body

as part of its religious ministry, which

complies with the requirements of this

Part shall be sudject to any other provi-

sion of law relating to education except

requirements of law respecting fire,

safety, sanitation and immunization.

(1979, c. 505; 1981, c. 423, s. l.)

Petitioner, his wife, and their six

children moved to Tyrell County, North

Carolina, in January, 1981. Four of the

children were then of school age and two

were younger than school age. The Duros

are Pentecostals and because of their

religious beliefs refused to send their

school-age children to the available

scnools in the County. Petitioner and

gious conversions in 1979 and thereby

came to their present belief in the

literal truth of The Bible. When the

family moved to North Carolina (after

Petitioner finished attending the

Pentecostal Bible College in Maine where

he enrolled after his conversion),

Petitioner visited the available schools

and found that they violated the literal

1 North Carolina has also radically

deregulated private secular schools,

N.C.G.S. 115C-555 to 562. These statu-

tory provisions track, except for the

statement of public policy in favor of

religious liberty, N.C.G.S. 115C-547,

supra, the provisions for religious

schools. It does not appear that there

were any private secular schools avail-

able to Petitioner's children.

commands of the Bible in at least the

following ways.

1. Children at these schools

dressed in unisex fashicn, with girls

wearing pants and short hair and boys

wearing long hair. This style of dress

offended Petitioner's Bitical beliefs

because Petitioner believes that the

Bible commands that men xeep their hair

short and not wear women's clothes, and

wear men's clothes. The sasis of his

belief is the Scripture tontained in

Deut. 22:5, which says:

"The woman shall nct wear that

which pertaineth urcto a man,

neither shall aman out ona

woman's garment: for all that

do so are abominaticn unto the

Lord thy God." See also,

1 Cor. 11:14-15, 6.

2. Children at these schools were

taught that doctors can cure disease and

injury, and on occasion in emergencies

were taken to doctors for treatment.

This belief and this practice is contrary

to the Bible, which literally commands

that Christians trust Gcad to heal them by

the laying on of hands, without the

intervention of doctors. The basis of

Petitioner's belief to this effect is

Mark 16:17-18, which says:

"And these sizns shall follow ~

them that believe; In my name

shall <hey t out devils;

»..and if they drink any deadly

thing, it shall not hurt them;

they shall lay hands on the

sick, and they shall recover."

ts ¢

ww >}

Since Petitioner's conversion his family

has sought no professional medical

attention despite suffering sicknesses,

broken bones and concussions. In

| Petitioner's view Christians who pate

ronize medical doctors believe in the

Bible only when it suits them and not

when it challenges them.

3. Children at the available

religious school are taught that water

baptism is necessary for salvation. This

is contrary to the Bible, which commands

in Romans 10:9:

"That if thou shall confess with

thy mouth the Lord Jesus, and

shalt believe in thine heart

that God hath raised him from

the dead, thou shalt be saved."

Petitioner himself works ina

worldly environment to make a living, but

believes that the Bible commands that his

children not be educated in a worldly

environment. "The Bible commands that

because they are not qualified to go out

and stand up to peer pressure and t

like that. And when they are properly

trained and they are 17, 18 or 19 years

old, then they can go out into the world

having proper background and be able *o

function in it."° Petitioner and his

wife and children presently form a reli-

gious enclave, in which the children are

nurtured and educated according to the

Bible. Since coming to North Carolina

Petitioner's wife has taught their child-

ren at home regularly every weekday from

8:30 or 9:00 a.m. until 2:00 p.m., and

for as long thereafter as the children

require to finish their work for the day,

on all days that the public schools were

in session. She has instructed them by

means of the Alpha Omega Christian

Curriculum, by which the children are

taught English, Social Studies, Math,

Science, Bible, and other subjects ina

largely self-help, workbook style fashion.

Petitioner's wife is available to answer

2 Petitioner's Deposition, p. 65,

te 8-14,

tests. If the children do not sc

percent on the test at the end of each

book they must repeat the en

Samples of the Curriculum arcrear at

A-32 ff. Petitioner's wife is a regis-

tered nurse and has completed one semes-

ter of college. Petitioner holds a

Master of Science Degree in Education

from the State University of New York at

Albany and a lifetime New York Public

School Teaching Certificate. The Alpha

Omega Christian Curriculum is a compre-

hensive curriculum which is also employed

at the local religious school. The

District Court stated that this curri-

culum "appear[s] to the Court's unpro-

fessional eye to offer instruction in the

basic subjects commonly taught in the

public schools except that they reflect

in some respects a fundamentalist orien-

tation as opposed to a scientific or

secular orientation." A-7, n.2.

In February, 1981, Petitioner was

prosecuted in the District Court of

Tyrrell County for four counts of vio-

lation of N.C.G.S. 115C-378, supra,

p. 2, the North Carolina Compulsory

Attendance Law. In March, 1981, these

prosecutions were quashed for failure tq

allege that the statutorily required

notice had been given *o Petitioner.

See, N.C.G.S. 1150-378, 494, 5. In

Aprii, 1981, Petitioner commenced this

‘action in the United States Distric

Court, Eastern District of North Caro-

lina, seeking a declaratory judgment that

the application of the Compulsory Attend-

ance Law to him was unconstitutional arid

an injunction against its enforcement as

to him. Jurisdiction was based on 28

U.S.C. 1343(3) and 42 J.S.C. 1983 was the

applicable substantive law. After dis-

covery the case was heard on cross-

motions for Summary Judement by The

» Chief

United States District Judge, Eastern

District of North Carolina. On

August 20, 1982, the Court issued its

Memorandum of Decision, A-2, holding:

‘Honorable Franklin T. Dupree, Jr.

that abstention was inappropriate; that

Petitioner's refusal to enroll his child-

ren in school was sincere and religiously

motivated; and that the State's interest

was of insufficient weight to overcome

Petitioner's religious liberty. This

latter holding was largely premised on

the 1979 deregulation of religious

schools, N.C.G.S. 115C-547, et seg.,

supra, p. 5, whereby the only legal

requirements retained for relizi

tend "for a

period equal to the time which the public

school to which the child is assigned

shall be in session," N.C.G.S. 115C-378;

that the school "maintain annual attend-

schools were: that children at

ance and disease immunization records"

and "be subject to reasonable fire,

health and safety inspections by State,

county and municipal authorities as

required by law," N.C.G.S. 115¢0-548

that the school "administer, at least

once in each school year, a nationally

standardized test or other nationally

standardized equivalent measurement

selected by the chief administrative

officer of such school, to all students

enrolled or regularly attending Grades l,

2, 3, 6 and 9." N.C.G.S. 115C-549. The

test records are available for State

inspection but the State retains no power

to control the curriculum or require

teacher competency in religious schools,

whatever the test results may be. See,

A-6.

The State, bereft by its statutes of

any argument that quality of education

was after 1979 any longer a compelling

State interest in North Carolina,

asserted to the District Court thact it

had a weighty interest in guaranteeing

"universal" education. The District

Court found this argument to be “hollow,”

A-12, because it was without basis in

fact. The State having clearly withdrawn

any right to control religious schcols,

and having vacated the field so

thoroughly that a religious school could

become merely "a mouthpiece for some

religious fanatic,” A-13, did not assert

any interest in the universality of

education within any rational meaning of

the word education. North Carolina

religious schools may now quite lezally

graduate students who cannot read or add.

The State has aoddicated responsibility

to provide any "education" for children

not enrolled in the public schools.

The Circuit Court reversed. The

finding of Petitioner's sincerity was not

disturbed, A-26, but the State was found

to have a sufficient interest in ccom-

pulsory education because the safety,

testing, etc., requirements were imposed

and because assertedly "the welfare of

the children is paramount and...their

future well-being mandates attendance at

@ public or non-public school." A-=26.

The Circuit Court did not mention any

evidence in support of its conclusion

regarding the welfare of the cnildren.

ARGUMENT

The Circuit Court has seriously

misconstrued Wisconsin vs. Yoder, 406

U.S. 205 (1972), reading it as a case

dependent upon the uniqueness of Amish

life rather than as a case about reli-

gious liberty. The Circuit Court has

also found a compelling interest ina

First Amendment case when the State

legislature has said that none exists.

The Circuit Court has, finally, denied

Petitioner his historical right to direct

the upbringing of his children.

1. The Circuit Court drew a dis-

tinction between Wisconsin vs. Yoder, 406

U.S. 205 (1972), which it viewed as

heavily dependent upon both the unique

nature of the Amish community and the

fact that Amish parents wished for their

children to remain resident in their

rural self-sufficient community upon

becoming adults, and the present case in

which Petitioner does not belong to an

established religious community and, it

is said, "expects [his children] to te

fully integrated and live normally in the

modern world upon reaching the age of

18." A-23. This distinction is twice

false. Not only is Yoder misinterpreted,

but the Circuit Court unfairly twists the

intentions of Petitioner so as to maxe

them seem different in substance from the

intentions of Amish parents. Petitioner

in no wise expects his children to "be

fully integrated [or] live normally in

the modern world." He expects them so

live a radical religious Pentecostal

life, which is not a "normal," secular

life. Of course Petitioner, equally wi

the Amish, will not have legai control

over his children once they become 13

years of age. He testified that when his

children become adults, "then they can go

out into the world having proper back-

ground and be able to function in it.”

Petitioner's Deposition, p. 65. But

until that time his religion requires

that he give them a Biblically literal

education. The Circuit Court inter-

polated the requirement of "normally"

functioning in the world, without having

any basis in fact for so doing. It isa

holding of Yoder that religious separ2-

tism during high school "prepares indivi-

duals to be self-reliant and self-

sufficient participants in society."

406 U.S. at 221. This holding

includes the Amish children that later

leave the separatist community. The

basic academic education that Petitioner's

children are being given prepares

them to be evangelical Pentecostals

who go into the world to witness their

religion, as their parents wish, or to

abandon their parents’ religion when “hey

become of age and yet make their own way

capably in the world. At the least,

Petitioner's children will be as well

able to cope with modern society as are

those Amish children who later choose to

leave the separatist community and live

in the secular world with an eighth grade

education. A review of the Alpha Omega

Christian Curriculum which Petitioner's

children are learning shows that any of

them may become, if they wish, Pente-

costal historians, Pentecostal auto

mechanics, Pentecostal bankers, Pente-

costal ‘ballet dancers, or of course non-

Pentecostals of any type. In their final

year of English, Petitioner's children

will study, inter alia, theories of the

origin of language, Chaucer, Hamlet,

Goldsmith, Keats and Hopkins. In mathe-

matics they will study ordered-pair

numbers, probability, cermutations,

polynomials, quadrental angles, trigo-

nometric equations, etc. Petitioner does

not claim that the State may not require

that he meet certain standards for home

instruction. See, A-14-15. But educa-

tion outside the home is neither so

venerable nor so prized that it may claim

to be the exclusive benchmark of compe-

tent citizenship. Abraham Lincoln was

able "to participate effectively and

intelligently in our open political

system," Yoder, 406 J.S. at 221, despite

his lack of formal education. Super-

vised home education is allowed in other

states and countries. See, e.g., State

vs. Riddle, 285 S.E.2d 359 (W.Va. 1981);

Rev. Stat. Alberta (Canada), Ch.

S-3, § 143(1)(a). Only in this century

has compulsory education beyond the

eighth grade been required. As recently

as 1972 six states required only an

eighth grade education and Mississippi

had no compulsory education law at all.

Wisconsin vs. Yoder, 406 U.S. at 226,

mn. 15. This Court has stated that a

state may refuse to accept home instruc-

tion as compliance with compulsory educa-

tion statutes, Board of Education vs.

Allen, 392 U.S. 236, 246-47 (1968), but

this remark was made in a non-religion

context, see Id., n. 8 (citing People vs.

Turner, 121 Cal. App.2d 861, 263, P.2d

685 (1953), appeal dismissed for want of

a substantial federal question, 347 U.S.

972 (1954), a "right to home education"

for other than religious reasons case).

Petitioner's children may fail to obtain

some socializing skills, but making

square pegs is not a compelling state

interest. To force Petitioner's children

to attend public or religious schools

would force Petitioner to expose them to

teachings that are prohibited by his

religion.

2. N.C.G.S. 115C-547 provides:

"In conformity with the Consti-

tutions of the United States and

of North Carolina, it is the

public policy of the State in

matters of education that 'No

human authority shall, in any

case whatever, control or inter-

fere with the rights of con-

science,’ or with reiigious

liberty and that ‘religion,

morality and knowledge being

necessary to good government

and the happiness of mankind

»e-the means of education

shall forever be encouraged.'"

(emphasis supplied)

The quoted words are drawn from the

North Carolina Constitution, Art. I,

Sec. 13. The statute is a clear state-

ment that North Carolina values religious

liberty at least as highly as it values

academic competence. The Circuit Court,

however, somehow found that North Caro-

lina had retained a "compelling interest

in compulsory education," A-25, despite

that the State does virtually nothing to

assure that "education" takes place in

religious schools. Since North Carolina

has given up control of the quality of

education in religious schools, it

cannot assure that they will educate

children at all, in the secular sense of

education as teaching skills necessary to

function in modern America. Religious

schools could, for example, adopt a

monastic regimen of fasting, contem-

plation and religious study, and give no

academic instruction whatever, yet

operate in a manner consistent with North

Carolina law. The North Carolina General

Assembly has decided to allow that possi-

bility ({ust as Burma and India have

allowed that actuality for centuries).

But this being so, compelled exposure to

"education" is a hollow claim. What can

be compelling about forcing children to

attend a school that is not required to

educate them? The compelling interest

test is essentially a legalistic for-

mulation of the general proposition of

political philosophy ‘that ultimate

necessity finally trumps freedom, and the

corollary proposition that ultimate

necessity must be carefully separated

from rhetoric which claims ultimate

necessity but does not demonstrate it by

legally and humanly convincing proof.

Hysteria, self-interest, fear of change,

hard-headedness, attachment to privilege,

and simple inertia all have a way of

staking a claim to the "compelling"

necessity of their position. The com-

pelling interest test exists to prevent

their triumph except in cases of provable

ultimate necessity. If the enemy is

truly at our shores the government may

do whatever is necessary, including

abridgement of liberty, to assure that it

will survive and be able to later guaran-

tee liberties again. But history teaches

that the trumpet of necessity is often

blown prematurely. See, Korematsu vs.

United States, 323 U.S. 214, 225 (1944)

(Roberts, J., dissenting). That seems to

be the case here. The Circuit Court has

found a compelling interest on behalf of

North Carolina despite that it is quite

possible that Petitioner's children will

learn less of the three Rs at school than

at home.

Although the Circuit Court did not

overturn the District Court's finding

that Petitioner was sincerely and reli-

giously opposed to sending his children

to the available schools, it was obvi-

ously ill disposed toward Petitioner.

The Circuit Court never mentions the

central fact that Petitioner's religious

beliefs are drawn directly from the

Bible. Rather, the Circuit Court gra-

tuitously commenced its opinion with the

observation that other Pentecostals do

not believe as Petitioner does. A-17.

This is an irrelevancy. Petitioner's

religion is based on The Bible, not on

Pentecostal mores.

4, Finally, the Circuit Court :

relied on "the welfare of the Duro child-

ren." A-25, n.3. The Circuit Court

found that North Carolina had guaranteed

children the "right to an education that

will prepare them for their future."

Even if this generality is correct as a

matter of State law, which is not clear,

the North Carolina General Assembly, by

enacting N.C.G.S. 115-547 to-554, has

indicated that that "future" could be a

religious rather than an academic future.

Also, in Wisconsin vs. Yoder, Justice

Douglas, the lone dissenter, would have

held that the State had a legitimate

interest "in seeking to develop the

latent talents of its children [and] in

seeking'to prepare them for the lifestyle

that they may later choose..." Id. at

240. The other members of the Court

rejected this proposition and solved ‘she

case as a contest between the religious

rights of the parents and the educational

rights of the State. The Circuit Court

has, despite Justice Douglas's lack of

success, again imported the rights of the

children into the equation. If the Court

grants this Petition, Petitioner res-

pectfully urges that counsel or amicus be

appointed to speak for the interests of

his children; but the present law appears

to be that courts should not consider the

interests of the chiidren in preparing

now for a lifestyle they may later choose.

For now they live within their parents’

lifestyle. See, Meyer vs. Nebraska, 262

U.S. 390 (1923); Pierce vs. Society of

Sisters, 268 U.S. 510 (1925); Prince vs.

Massachusetts, 321 U.S. 158 (1944).

There is no hint in the record that the

children are being maltreated. They are

just being given a strict religious

upbringing.

Respectfully submitted, this the

/ = day of October, 1983.

= (Aeoy di aQ,

George Daly '

Suite 226, One North McDowell

101 North McDowell Street

Charlotte, N.C. 28204

Telephone: (704) 333-5196

Counsel for Petitioner

OF COUNSEL:

Norman B. Smith

North Carolina Civil Liberties

Union Legal Foundation, Inc.

~*700 Southeastern Building

Greensboro, N.C. 27401

Telephone: (919) 274-2992

STATE OF NORTH CAROLINA

COUNTY OF MECKLENBURG

CERTIFICATE OF

“”

SERVICE

I, George Daly, a member of the bar

of this Court, do on my oath certify that

I personally deposited 40 copies of the

foregoing Petition for Writ of

Certiorari in the United States Post

Office, Charlotte, North Carolina, on

October 10, 1983, with first class

postage prepaid, properly addressed to

Clerk, United States Supreme Court,

1 First Street, N.E., Washington, D.C.,

20543, and also three copies hereof to

Andrew A. Vanore, etc., attorney for

Respondent. I know of my own knowledge

that this mailing took place on

October 10, 1983, having personally done

it.

George Daly ¢@

Suite 226, One North MeDowb11

101 North McDowell Street

Charlotte, North Carolina 28204

Telephone: (704) 333-5196

Attorney for Petitioner

STATE OF NORTH CAROLINA

COUNTY OF MECKLENBURG

VERIFICATION

I, Kay Thomas, a Notary Public of

the State of North Carolina, County of

Mecklenburg do hereby verify that George

Daly appeared before me, this the llth

day of October, 1983, and executed the

foregoing Certificate of Service.

This the llth day of October, 1983.

a ae

Notary Public

My’ Commission Expires:

*T - eo ZS

an 7uT rewrTe eo IMaAMre NTI aon af _

IN THE UNITED STATES DISTRICT COURT

of fo hae CAQMOD ror rom

¢ THE EASTERN DISTRICT

aby 7 lems 4 fv a AT TATA

wv NORTH w AROLI tA

or +? eee tan! ent rrr es an ba

peeps ABETH Ci Y DIVISION

No. 81-13-CIV-2

MEMORANDUM

F DECISION

_—_ wv =

rons rN Ty

tapes iD J oVL

DISTRICT A

bm |

t4 ©

Nee RS OO Ne OS OS 8

This action is before the court for

uling on the parties' cross-motions for

summary judgment. The motions were taken

ement after a hearing on

July 7, 1982. Additional briefing was

solicited from the parties and the motions

ow ripe for disposition.

Plaintiff Peter Duro moved to Tyrrell

County, North Carolina, in January, 1981.

He and his wife, Carol, have six children,

five of whom are school age. He claims

that his religious beliefs preclude him

from enrolling his children in a public

school or the only available nonpublic

school, so he has not enrolled his child-

ren in school. On February 10, 1981, four

A-2

lina compulsory

school attendance law. The warrants were

quashed because of technical defects, and

plaintiff then filed thi

the District Attorney

claiming that N.C.G.S.

s action against

or Tyrrell County

§ 115C-378 is

unconstitutional as lied to him.

The defendant h stipulated that

Plaintiff's religious beliefs are sin-

cere. “Mr. and Mrs. Duro underwent con-

version experiences and became Pe ntecos-

tal Christians. He attended a Pentecos-

tal Bible college in Maine for a year

before moving to North Carolina. He

descrides himself as a fundamentalist and

believes in the literal truth of the

Bible, does not believe in ordination by

or membership in any organized church, and

believes that he has been called by God to

start a church and a school.

Available to him in Tyrrell County

for the education of his children are the

public schools and one church-related

school, the Cabin Swamp Christian School.

He declined to enroll his children in

public schools because of a concern that

they would be exposed to "secular human-

A-3

(or

Ss or emergency. He investigate

bin Swamp but found in its

ch important theological differ-

. t

eliefs as well as a2

~ e

rrom nis

3 > - - 2 2. 2 te

medical treatment for injuries or ill-

--- = % —s 2

nesses. Although many of his objections

= a a } ie | - _ =

to the available schools relate t

secular matte I }

2n7 ~ + 2 ——

Bidle and God command him not to seex

w 7 Pa] = — ’

counsel from any person that's not

ao ’ : 2 , |

sodiy, which in our case would be - you

a an 2 } 2 a | - —

know -adhering to the principles that the

Bitle teaches. And that would be very

difficult receiving that kind of counsel

1 any Kind of public institution."

Duro Deposition at 49. Thus, he believes

that he would incur the wrath of God if

he sent his children to either the public

schools or the Cabin Swamp Christian

chool. Complaint 46. He does not

lieve that no acceptable school could

A-4

by the State

w.C.G6.8. $2215

ments made in

tutory provisi

ames

schools,

Education

Tho

existent.

Assembly has

operation of

removed from

administer

attendance at

N.C.G. § 115

school is subj

oO.

sal

of law relatin

§§ 115c-554,

Assembly sta

of the state

tion...’

~ +

tnat

[fnJo human author

A-5

ave

the

provision

N.C i

N.C.Gs

Jeneral

nal policy

of educa-

44 Ave 7% » ww 1070 wr See ure

relisious liberty. 1979 N.C. Sess. Laws

ie ~ 23 - . rr @e > ce_cho

Ce 24/939 C dified av Wee Uede § 115C-547

-- Led ‘a 72 au t+ -

(quoting North Carolina Constitution

§ 13). The Board cannot

a awe

be E

Dm te

prescribe curricula, teacher certifica-

tion requirements, teacher-student

ry | eal -~ 2+ oes

eae ia * ZenAH r ~ -aYr is 7

-M~ eee SCMNOCl. imerezrore, -_-¥ - S) rfi-

2 ane “~jAan “TAME Pan lin 7 : PfAnm

CLENTL asics etVe Vad Var O na iaw ior a

Weaker ntd tt ¢e¢-4 +a ++anA — n tom moe

wsivd * vO take attendance and ever aa |

~ Pursuant to N.C.G.S. §§ 115C-550

and 5538, nonpublic schools must select

and administer a competency test to its

eleventh graders and must determine what

score must be achieved on the test by a

student in order to graduate. As the

statute is written, however, the school

has complete control over the selection

of the test and the qualifying score and

therefore may graduate even students

reading on a second-grade level. The

state has retained the authority to

inspect the test results but not any

authority to act in light of the results.

A-6

which are the ordinary goal of education,

the state acc Ss

school as sufficient in fulfilling any

interest sne state has.

In challenging she compulsory school

attendance law, plaintiff contends that

his rig to freely exercise his reli-

gious b fs is infringed and that there

is no compelling state interest being

-~ ° ~ ~ —

instru n his children receive at home

3 - ~ | ~ 6 - _

is at least equal to and pernaps perior

the Cabin Swamp schools.

Sa jo ee bg

The Duro children are taught

through the means of a programmed self-

explanatory curriculum calied the Alpha

Omega Christian Curriculum, which is also

used at the Cabin Swamp School.

Although Mr. Duro is a certified teacher,

he is not involved in the instruction,

which is carried out and supervised by

his wife. Mrs. Duro is not ’certified as

a teacher. The instruction is scheduled

for the hours of 9:00 a.m. to 2:00 p.m.

every weekday. Samples of the instruc-

tional materials are attached to the

affidavit of Carol Duro. They appear to

the court's unprofessional eye to offer

instruction in the basic subjects common-

ly taught in the public schools except

that they reflect in some respects a fun-

damentalist orientation as opposed to a

scientific or secular orientation.

A-7

case. No proceedings are pending in

state court against plaintif

tion is not required under Younger v

Harris, 401 U.S. 37 (1971 h

has been informed *h h

state law

9 -

2 =} +4 2 ‘ As

instruction might qualify for purposes of

qd e

52 — ~ - 4 : ?

pending state cases not volving the

ff >

Duros. foreover, tne Duros state =nat

them from sen r

available schools out als

from administering in t

required standardized tes

question of whether their home would be

considered a "school" under state law if

they attempted to comply with the minimal

requirements of state law is not even

3 Plaintiff does, however, have a

case or controversy, since defendant has

indicated that he will prosecute plain-

tiff for violating N.C.G.S. § 115C-378 in

the future if complaints are receive

A-8

which if resolved mignt avoid the neces-

sity of constitutional decision. See,

of Texas vs.

e.g., Railroad Commission of

Company, 312 U.S. 496 (1941).

ly, the court has determined

ention would be inappropriate.

hen is whether

eo ss

religious belief

rinsed by enforcement of the

compulsory attensaance law. Wisconsin vs.

Yoder, 406 U.S. 235, 214 (1972). Defen-

f contemporary secular values,

beliefs which under Yoder do not qualify

as "religious." as a factual matter

defendant overlocxs the degree to which

plaintiff bases nis beliefs in scripture

hat ne believes that he

ffer God's wrath if he

personally will si

C 1 to instruction by

subjects his

non-believers. More importantly, however,

defendant's position neglects the recent

decision in Thomas vs. Review Board of

the Indiana Employment Security Division,

450 U.S. 707 (1981), where the Court

clearly stated that "it is not within the

A-9

judicial function and judicial compe-

tence" to determine the validity of a

religious belief. The cours must only

determine whether, in this instance,

plaintiff has refused to s

ren to school "because of anh

‘b

fe)

conviction that such...was forbidden

his religion." Id. at 716. I

to the court that Peter Durs is actin

out of an honest conviction that obed

ence to the compulsory attendance law

forbidden by his religion. Although

court is not greatly sympaznetic with

beliefs, they are not "so bizarre, so

clearly nonreligious in motiva

Ss tion, as

not to be entitied to protection under

the Free Exercise Clause." Id. at 715

The court must therefore turn t

second question, which is whether the

state's interest in the statute is o

"sufficient magnitude to override the

interest claiming protection under the

Free Exercise Clause." Wisconsin vs.

Yoder, supra, 406 U.S. at 214. In the

abstract, the state has a compelling

interest in compulsory school attendance

as a means of assuring that all cnildren

in the state receive a basic education

sufficient to prepare them for the duties

A-10

of citizenship, for oc:

political proc

sufficient and eee po

society. Wisconsin vs. Yo segs supra, 406

U.S. at 221. When a

to insure that educational standards are

te is attempting

being met, it may refuse "to accept

instruction at nome as compliance with

compulsory education statutes." Board of

Education vs. Allen, 392 U.S. 236, 246-47

(1968). Moreover, the s “

"may require

e schools, if it

ompulsory-attendance

laws, be at institutions which provide

minimum hours of instruction under the

supervision of teachers of specific

training and covering certain prescribed

subjects." Lanner vs. Wimmer, 662 £

1349, 1353 (10th Cir. 1981). Cf.,

Windsor Park Baptist Church vs. Arkansas

Activities Association, 658 F.2d 618 (8th

Cir. 1981). In addition, "courts are...

ill-equipped determine the ‘necessity’

of discrete aspects of a State's program

of compulsory education. This should

Suggest that courts must move with great

circumspection in performing the sensi-

tive and delicate task of weighing a

State's legitimate social concern when

A-11l

faced with religious claims for

from generally applicatle educaticnal

requirements.” Wisconsin vs.

supra, 406 U.S. at 235.

Here, however, the State of North

Carolina has abdicated its n

the quality of the educavi

students in nonpublic scho

"the rights of conscience.” N.C.3.S.

§ 115c-547. Claiming no interest in the

quality of education received by the

children of | th Carolina wao attend

nonpublic schools Ss

asserts that it has a compelling interest

in guaranteeing t i

versal." Inde

Constitution p

have a right t

tion, and it is the duty

guard and maintain that right." article

I, § 15. The state protects that right

by operating a system of free public

schools which all children may attend.

But the argument that there is a compell-

ing interest in universal education when

the required education may be devoid of

even minimal quality is correctly charac-

terized by the plaintiff as "hollow."

The state hopes that "the collective

A-12

concerns, demands and pre

parents of private school ct!

insure that the nonpublic

an education which incl

[oF

mental skills necessary f

sufficient and productiv

society and for teen in its

political process. The state "does not

permit home instruction because [it] has

no mechanism by which to assure that

children in a home witn their parents are

provided access to any education whatso-

lemental Brief at

4, But the same is true of the state's

ever." Defendant's Supp

relationship with the nonpublic schools;

whether or not children are provided a

minimum education is entirely dependent

upon the parents' interest and motiva-

tion, since a school may exist which

provides no education at all but is

rather a mere caretaker or a mouthpiece

for some religious fanatic. +

4 Defendant also attempts to rely on

United States vs. Lee, U.S. ‘

102 S.Ct. 1051 (1982), for the proposi-

tion that the position accorded religious

liberty by the General Assembly has no

bearing on the case. Lee, however, con-

cerned a claim of religious exemption to

Social Security taxes based upon the fact

A-13

ate has so drastically under-

cut its asserted interest in the univer-

sality of education that the court cannot

conclude that what survives is compell-

ing. If the state makes no attempt to

maintain minimal educational standards in

nonpublic schools, its requirement that a

school te attended is little more than

bee

empty ccer arly when those

eing relatively

the comrulsory attendance law of North

applied to this

plaintiff. The court wishes to make very

Carolina may

clear the narrow scope of this holding.

First, it has no bearing on the state's

authority to enforce the

Se d, it should not be

read as limiting the state's authority to

law against any

other rerson.

impose minimum standards on nonpublic

schools or to develop a mechanism per-

4 (continued) that some other class

of persons enjoyed an exemption. The

court held that the statutory exemption,

applying to a different situation, did

not strengthen plaintiff's position. Id.

at 1054-55. Here, in contrast, the sta-

tutory language is an explicit statement

of policy rather than a rule applying to

a discrete situation.

A-14

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A-15

me)

r? ry

MO t* O ry

Andrew A. Vanore, Jr. (Edwin M.

Speas, Jr., Special Deputy Attorney

Seneral on brief) for Appellant; George

Daly (Charles E. Craze, Gibbs & Craze;

Wendell Hutchins, Hutchins, Cockrell &

Newmann on brief) for Appellee;

(George T. Rogister, Jr., Xim C.

Wetnerill, Tharrington, Smith &

Yargrove on brief) for Amicus Curiae

North Carolina School Boards Association.

A-16

HALL, Circuit Judse:

Peter Duro (Duro) initiated this

action against the District Atcctcsrney of

the Second Judicial District of tiorth

Carolina (D.A.) alleging that nis reli-

gious beliefs were infringed by che North

Carolina compulsory scnool attendance

law, N.C.G.S. § 115-378. The district

court entered a summary judgmen: for

Duro, from which the D.A. appeasis. We

find that North Carolina has demonstrated

gen interest in compulsory education which

s of sufficient mag

Duro, his wife and six children,

five of whom are now of scnool ase, have

resided in Tyrrell County, Norsn Carolina

since January, 1981. Duro and his wife

are Pentecostalists. This religion does

not require that children be taught at

home; in fact, the majority of children

whose parents are members of the Pente-

costal Church, which the Duros attend,

are enrolled in a public school. Note

withstanding this, Duro refuses to enroll

his children in a public school or the

only available nonpublic school, Cabin

A-17

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A-18

method of instruction used at Cabin Swamp

tian Se2ncrtl. Duro himself does not

’ o @ } 4 °

rticipate in she instruction of the

n uary 10, 1981, Duro was

charged with fsur counts of violation of

rtn Carolina compulsory school

tendance law, which requires that

children between the ages of seven and

sixteen must attend school. N.C.G@.S.

§ 115c-378. gapshed, the warrants were

Quasned because of technical defects.

Duro filed this action on April 2, 1981,

allecing that cne statute in question, as

it applied to nim, violated the First and

Fourteenth amer.dments to the United States

Constitution tcecause his religious beliefs

prohibit him from sending his children to

¢ or mossublic school. On

August 20, 135-, the district court

granted Duro's motion for summary judg-

ment. From that decision, the D.A.

appeals.

it.

The district court relied heavily

. Yoder, 406 U.S. 205

(1972), in nolding that North Carolina's

compulsory scnool attendance law was

unconstitutional, as it applied to Duro,

upon Wisconsin v

HS |e

A-19

AA ewe anys } 1 j

In Yoder, the Court held that there are

{a= ~ 4 '

two issues wnhicn must be considered in

- e3Ai a=: a a 5s. « i a

cases such as this: (1) whether a sincere

a? @ ’ - | ” 4 f v9

relizious belief exists, and (2) whether

- ~- - So ~ -

the state's interest in compulsory educa-

First Amendment. The Court recognized

‘

that senerally a state has a compelling

interest in compulsory education, in

order to "prepare citizens to participate

effectively and intelligently in our

olitical system" and to "prepare indivie

Qa Oo

' s

ie)

1a)

«.

t- .

pee

pee |

res |

ais POL at awe ranttatrantec 4 = at , "” A

29 9 ae Bees -1 9" Seve wep Gels 1n socie ye Id.

at 297) The (

av a ae ase -

a |

for

«ct

ne) arents regarding

ringing of their children on the

district court found that Duro,

like the parents in Yoder, expressed a

sincere religious velieri/ that school

i/ According to the district court,

Duro based his belief in the scripture.

Further, the court noted that Duro acted

"out of an nonest conviction that obedi-

A-20

. 2 ~ ~ 7... @

court, in reaching its conclusion,

rectly interoreted and arrli

Cc ’

r, because it arose in an ent

€ i y

ferent factual context from the pre-

sent case. Nevertheless, in calan

Dure*s religious belief against No

Carolina's interest in compulsory

tion, keeping in mind both the chi

future well-being and their state

;

tutional right to an education, we find

the balance in this case tips in

(continued) e

sory attendance law is

religion."

to t

orbidden in his

In Thomas vs. Review Board of the

Indiana Employment Security Division, 456

U.S. 707 (1981), the Supreme Tourt

addressed the question of what constitutes

a religious belief. The Court held that,

"relizious beliefs need not be acceptable.

logi cal, consistent or comprehensible to

other in order to merit First Amendment

erotection. " Id. at 714. The Court con-

cluded that the narrow function of a

reviewing court is to determine whether

there was an appropriate finding that the

petitioner acted in an "honest conviction

that such [action] was forbidden by his

religion," Id. at 716.

A-21

- ° —~e& i «= b | td «?

reasiiy sistinzuishatle from the situae

2» T -

tion <n jer. In that case, Amish

a a 2 - 2 _ -

parents were convicted of violatins

Wisconsin's compulsory school attendance

law ty refusing to send their children to

public or priva

te scnool after they had

he eighth grade. The

Surs, in reversing the parents’ convice

tions and holding that they had a vaiid

First Amendment defense to the prosecu-

tion, clcosely examined and scrutinized

the unique nature of the Amish community.

The evidence in Yoder revealed that czhe

n- - = 2 - =~ ° a 2

for she first eight grades, following

see 2 4 t= m] 2

wnicn the Amish provided informal vcca-

2 a - 7

tional education to prepare their child-

ufficient community. The Court stressed

fact that for almost 300 years “she

society nad not altered their

ifestyle, which was centered around a

e agrarian community away from

y" influence. Because the Court

found that secondary school education

mphasized "intellectual and scientific

accomplishments, self-distinction, com-

petitiveness, worldly success and social

4-22

life with other students,” it :s held to

oa -~ S ms 4 ’ ~ *

be contrary to the am. cel: and way

* 2¢ T - “ an - o a

Ot Li@e (x: av GE oame@ amy = Curt

Amish community and relizion. Theref

in view of the unisue fac

cumstances associated with tne -mish

: 2 . a } | a

community, the Court held thax

f 2 = 2 ~~ = 2 -_- - —

Wisconsin's interest in 2a2uca zisn was not

7 2 ~ ~ ~ ~ — ~ --. =- =

so compelling as t> cverride <née sincere

2-.¢ -~-< - {-

religious beliefs of the amisn.

Lon] ry =~ -2s? ~ ~

rne Duros, un.ike tnelir -a=2.S5n Coun]

~ ~an - - - ~ 2

terparts, are not members of 42 zscmmunit

= 2 a - -¥} ~ - —s. 2

which has existed for three centuries and

oe -- -—~o -< * «= = 2

self-sufficient, sésment of american

- Thy } - = 2 oJ ee

society. Furthermcre, in Yoder, the

Amish children attendlLed_ subii: school

through the eighth srade and tren obtain-

ed informal vocational traininzs to enable

them to assimilate into the se¢ir-contained

Amish community. However, in “he present

case, Duro refuses to enroll nis children

in any public or nonpublic scncol for any

length of time, but still expe:cs them to

be fully integrated and live nmsirmally in

the modern world upon reaching che age of

18.

A-23

| a t ~ ¢ _ |

Despit< rt arolina’s dererulae

2 - f + ta a --

t.Oon of nor « -~---~- educati ‘eo 2 di =

- {eh - ; - ‘ - - - -

asree with J.strict court that the

qualit;

in nonpubli: scnools. N

continues t2 impo

requirements <n all r

public schoc.s an » reguires that

attendance 2r.3 disease immunization

records be ~zintained for a

Tne schools zre also subjec

able fire, r22lth t

by public aucnoritie C

548, 556. “zreover, each religious and

nonpublic s2n250l1 is required to adminis-

ter to all scudents enrolled in grades

one, two, three, six, nine and eleven, a

nationally standardized test whereby the

state can mernitor competency levels.

$§ 115¢-549, 550, 557, 558. Duro has not

demonstrated snat home instruction will

prepare his cnildren to be self-

sufficient rcearticipants in our modern

society or <nadle them to participate

%.C.G.S. § 115C=-547.

A-24

intellicently in our political systen,

which, as the Supreme Court stated, is 4

comrelling interest of the state.

Therefore, based on all the regulations

imposed on religious and nonpublic

scnools, we find that North Carolina has

maintained a compelling interest in

compulsory education for the ildren of

the ratex®

= In addition to the mandates of

the Supreme Court in Yoder, we find that

our enief consideration must be the wel-

fare of the Duro children. When we exa-

mine their well-being, along with their

state constitutional right to an educa-

tion, we conclude that the children’

richt to an education that will Seunkie

them for their future is paramount.

Article.1, § 15 of the North Carolina

Constitution expressly provides that,

"TejJhne people have a right to the privi-

lege of education and it is the duty of

the State to suard and maintain that

right." The Court of Appeals of North

Carolina, in Matter of McMillan, 30

N.C. App. 235, 237, 220 S.E.ed 693, 695

lect

6), a case involving charges of neg-

against parents for failing to enroll

their children in the public schools,

held:

It is fundamental that a child who

receives proper care and supervisicn

in modern times is provided a basic

education. A child does not receivs

"proper care™ and lives in an

"environment injurious to his wel-

fare" when he is deliberately refused

this education, and he is "neglected"

within the meaning of [the statute].

A=-25

alin alin

therefo

dist

sincere

the

fars

~_—-

wel

that

al -n

oa wee

} 3 ~ -

the judgment

ind

in Wisccnsin v

2), has establi

which at times the

trea

3/ Contrary to the concurrin

ion, we are not suggesting that

children have a right so choose

or not to attend public school.

~w~=—

that this case in no way involve

issue.

shed

majority

«ft *y

The majorit ‘nion in Yoder cate-

gorized two legitimate state interests in

the education of children:

[1] to crepare [its] citizens

to participate effectively

and intelligently in our open

political system...[and]...

[2] [tc] prepare [its citi-

zens] to be self-reliant and

self-sufficient participants

in society.

Id. at 221. Justice White, in a cone

curring opinion joined by Justices

Brennan and Stewart, said that in addi-

tion to those interests recognized in the

majority opinion, the state has a legiti-

mate interest "in seeking to develop the

latent talents of its children [and] in

seeking to prepare them for the life

style that they may later choose..." Id.

at 240. Justice Douglas, the single

dissenter, would nav

constitutional right

the children and bal

against the First

Raa

religion rights of

e held that expansive

s attach directly to

ance in their favor

endment freedom-of-

heir parents.

My problems arise from the following

portions of the rvanel majority's opinion:

In footnote 3, the majority states

In addition to the mandates of the

Supreme Court in Yoder, we find that

A=-27

our enief consideration must be the

welfare of the Duro children. When

we examine their well-being, along

sitn their state constitutional

ight to an education, we conclude

that the children's right to an

education that will prepare them for

tneir future is paramount. Article

1, § 15 of the North Carolina

Constitution expressly provides

that, "{t]Jhe people have a right to

the orivilege of education and it is

the duty of the State to guard and

maintain that right."

In the final paragraph of its opinion,

the panel majority concludes:

We find, therefore, that this case

is factually distinguishable from

Yoder. Despite Duro's sincere

relizicus belief, we hold that the

welfare of the children is paramount

and that their future well-deing

mandates attendance at a pubdlic or

noneoubdlic school. Furthermore, we

conclude that North Carolina has

demonstrated an interest in compul-

sory education, which is of suffi-

ecient magnitude to override Duro's

religious interest.

I concur in the above-quoted sections

to the extent they may be read as saying

that North Carolina has a legitimate

interest in the welfare and future well-

being of the Duro children.?+ While

. The use of the phrase "welfare and

future well-being," I assume, connotes

A-28

Olved--most of chem were of sra

ool age, unlike the children in Yoder

who had received eiznt years of formal

education.

I must disagree, however, with two

possible inferences which seem to follow

from the aboveequoted sections of the

panel majority's opinion. First, the

majority apparently sives weiznt, in

balancing the state's interests, to a

provision in the North Carolina Constitu-

tion whieh provides: "(t]he people have a

right to the privilege of education and

it is the duty of the State to guard and

aration for

cal system and

participation in our

2 by the majority in

self-reliance expl2:’

Yoder, as well as Ju

ing concerning the a2

stic

evel f

talents and life-stvle of the child's

choice. Additionally, the lansuage used

by my panel colleasues is sufficiently

broad to include many other individual

values or desires nr

either the majorit;

in Yoder. I would

narrowly to the fac

or concurring opinions

confine the language

t contemplated by

onf

s of this case.

A-29

onstitutional

‘al

icy,

4mendmen

“a

their parents’

urt is the cone

statute

which

to send

The children

lity of a sta

- ars

Sew eee

titu

m”

he Duro parents

—

school.

ad their rights in this

maw -_

@ ses

“<=

have r

ce Burger noted in

Just

sf”

snould exercise extreme

hing the delicat

ween the Freedom of Exercise

cet

nce

vital interest in

the state's

wen

—

clause

A-30

public education. At the

should decline to theoriz

which are not factually i

posture of this case is 1

from the Yoder case in wha

Justices, save the dissén

their case in no way invo

tions regarding the rizh:

ren to attend school.

A-31

very least, we

on issues

veloped. The

t different

ch all of the

» agreed that

ved any ques-

of the child-

AAP eae —A a

eVLEWLS DVS

Pa eee ee

ede es owe Me - ww «

7 m 2 Tr,

Name Tania Duro

ra) AAS

Score 30

ssibl eannrs AA

Possible score aU

Call oe eahouk Ae bed er = 73h Ds -” mSemn

SULENCE 5US? SSPEPAG TEol

* T -~ tn a i

Match these Items (2ach answer points)

. - > Pacis

ee take enersy fro a. producer

y =: roi

the sun >. first-order

ge ee

2. helos rot dead consumer

~ {= _

orzanisms ¢. second-order

- I= “As |

3% -2 food is mostl consumer

2 a .

animal ad. decomposer

Ss take water in

i 2 ~ ~- -

through its roots

os +2 plant eater

#5 =

ieee | fungus

\ mee predator

Sgr

B.X 6 rabbit

% a= I _ aw? In

Aa helps return minerals

to the earth

° = =

10. a tall srass

Write true or false

points).

ll. true The web of life includes plants.

12. true Chemicals are brought into

plants as part of the mineral

13. true

14. true

15.Xfalse

cycle.

Photosynthesis

the balance of

Water evaporat

water cycle.

Animal bodies b

making enerzy.

A-32

is important to

nature.

s during the

urn up water in

more a.

needed

water

nawks

fewer

7. 2

lived.

than mice

same

c. adove the

fewer

number of

» $4

aw co

gS 9

w O

(e)

“a 0

wt Ga

ore

von

2.0

”

$2, e

= +}

NW G&G

loss of appetite

A-33

Name Peter Duro

Date Nov. 3, 1951

Seore 100%

MATHEMATICS 805: LIFEPAC TEST

Complete this item (each answer, 3

points).

1. The rules for multiplying ecmnon

fractions are to find the numerator,

a. multiply the numerators; to find the

denominator, b. multiply <ne derncminstors

‘Multiply or divide as indicated. 3e

Sure the common fraction answers are

reduced to lowest terms (2ach answer, 2

points).

3/8 x 5/6 5/16

ars % 6/7 4/7

5/8 x 1/5

4/9 X 1/6 4/542#2/27

avas se 6 102-173

4 1/6 +

2 3/4 +

» 5 1/5 ¢

10. 347.3 X 0.014 = 4,8622

p 4

OO GN OW fw

ll. 0.3 X 0.3 * 0.09

12. 571.1

13. 2.4 X

0.0043 = 2.45573

-024 = 0.0576

A-35

1.44 4407.

14. 0.045)0.06580 15. 16.1)70,952.7

45 64 4

mane | "655

180 644

oe ee 1127

189 1127

e) 0

64 43

46,. 342.3) 22, 939 - au

20,478

1 aoe

1 3652

11904

10233

13652

Work these per cent problems. Write the

answers on the blanks (2ach answer, 3

points).

17. What is the % chanse from 120 to

150? 25% increase

18. What is the % chanze from 14 to

9.8? 30% decrease

19. 22% of 4.3 = what number? 0.946

20. 4.5 is what % of 25? 18%

21. 0.03% of 75 = what number? 0.0225

22. 27% of what number is 17.037?

63.1

23. 26.5% of what number its 0.12455?

24. 0.07 is what 7% of 25? 28%

A-36

= ~ ~

WD A see a ad

—t or.

~~&

ee ae ee

Ps =<

eee ne . ~ -_— +

Name Tania Duro

Date 10/2/51

Score 95

Possible

Choose the correct word *o comrilete the

sentence (each answer, 3 points).

adjectives details mood cnree

couracse fear nouns two

coward main idea subject verbs

1. The story of Mafatu is the story of

couraze.

2. Mafatu had a strong emoticnal

reaction of fear toward che sea.

3. Because of Mafatu's feeling, he

acted like a coward.

4, n author uses emotion words to

5S. We find specific information by

noting details.

6. The subject of a sent

or what the author is tal

7. words that name a person, p

thing are nouns.

8. words that describe nouns are

adjectives.

A-37

9. Tne Exnzslisn language has three

standard forms of writing and speaking.

10. The ati2merndeshaped poem uses nouns,

adjectives, and verbs.

Write an <xamole of each item (each

answer, soints).

ll. Oneewsrd compound someone

12. Twoewcrd compound footcream

13. Hyphenated compound nisn-hnanded

14. Hyphenated number word _Ewenty—one

15. Hyphenated adjective nign-held

16. Word with double cons santa divided

at end of line. He said you were clas-

sified. <

Ais A noun —_ fafatu

18. An adective oretty

19. An -ing verb jJumbing

20. A speilins word that contained the

abbreviation for October. octopus

21. An emction word diszust

22. contraction can't

Complete =hese items (each answer, 5

points).

23. write a statement of fact from "The

Flizsnt." Mafatu father was the villare

chie?.

24. Write a statement of opinion from

"The Fliznt." Mr. Arm Strong Sperry had

to write Tne Flignt.

Write a parasraphn describing something

you have read or a personal experience.

The parasraphn must include an introduc-

tory sentence, three or more detail

sentences, and a summary sentence (this

activity, 14 points).

A-38

‘

-5. I nave had a personal expertéence.

wen . went for a walk alone, i i3w many

snines like frogs snakes and turs2is.

~12y w2re all alone the side of <ne road

~-1 a@coiz ditch. I allso saw a t2sbdy

r2b0ic hooping across the road. . heard

=ne Sranches blow, birds sinsins 2nd

erass swishing. I sot a chill in my

cones tisge something was goins *> set me

. ran home.

“atch she correct phrases to the words.

rlace she letter on the blank line if

front of the word (each answer, 2 points).

25. 4 autnor a. Call It ‘courage

27. . island b. Kivi

23. a Polynesiansc. nondescript dog

23. 3 book d. Armstrens Sperry

39. fe) albatross ¢. main idzas

cy pA lagoon f. Hikueru

32. e Uri S. contraccion

33. 2 topic h. fishermen

34. J compound i. small ocdy of

35. ia terror water connected to

35. I diamante 2 larger cne

j- word made from

CWO W

child

As a

A-39

ords

ina

Kind

K. three-year old

hurricane

of poem

SOCIAL STUDIES

702

LIFEPAC TEST

Name Tony Duro 4

Date October 1, 1951

Score 96%

SOCIAL STUDIES 702: LIFEFac TEST

Write true or false (each answer, point)

1. true The seasons depend uron the

angle of the earth's: axis and

the earth's position in its

orbit.

--X true In July the earth 2s closer to

to sun than it is in May.

3. false The truest represernsaticon of

the earth is a polar crojece

tion.

4, true Mt. Everest, the hizhest moun-

tain in the world, is located

in Asia.

5. true An interrupted-arez projection

shows the least distortion in

land areas.

6. true Physical geography is the

study of the physical features

of the earth.

7 true Most of the land masses in the

world are in the Northern

Hemisphere.

A=-'10

8. false The ctrcumference of the earth

“rom t2le to pole is 24,902

files,

9. false The srsrins equinox is March 22.

10. true Tne dividing lines between the

ZSastern Hemisphere and Western

Hemisrnere are the prime meri-

dian 2nd the 180th meridian.

ll. true Tne shortest day of the year

in the Northern Hemisphere is

Decemter 21.

12. true Leap sear occurs every four

rears.

13.Xfalse ‘Mountains nave the highest

temperatures of any landform.

14. true Plains are able to support

more reople than other land-

rorms.

15. true An imasinary line through the

earth's center is called an

axis.

Complete the following sentences using

the word list (each answer, 3 points).

cultural geograrcny Sierra Nevada

physical geograchny Allegheny

Appalachians plateaus

Rockies mountains

climatology plains

Challenger Dee, hills

Cascades oceans

16. The four ma’cr landforms are

a. plateaus, b. -iountains, c. plains,

and d. hills.

A-41

~~"

17. The three mountain ranges in the

United States are the a. Rockies,

b. Appalachians and c. Sierra Nevada

18. The study of man's culture is called

cultural geography.

19. The study of climates and their

effect on man is called climatology.

20. The deep floor of the ocean is the

Challenger Deep.

Write the answer on the line that best

describes the item (each answer, 2

points). #~-,s

Zi. b lowest elevation

Ze: b easy transportation

23. a mining

24, qd grazing

25% 4 highest elevation

26. d cool and dry

2f- dD industries

28.X -b forests

29. d elevated flat land

30. b centers of population

a. mountains

b. plains

Cc. oceans

d. plateaus

A-42

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.