Opposition Brief — Sheridan Road Baptist Church v. Michigan Department of Education

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fe Supreme Court, U.S,

ae $tLED

No. 86-1560 \ |

, APR

In The 25 W987

SUPREME COURT OF THE UNITED ST#?PES ay SPANIOL, JR.

October Term, 1986

SHERIDAN ROAD BAPTIST CHURCH, et al,

Petitioners,

Vv.

STATE OF MICHIGAN,

DEPARTMENT OF EDUCATION, et al,

Respondents.

On Petition for Writ of Certiorari

to the Supreme Court of Michigan

BRIEF IN OPPOSITION

FRANK J. KELLEY

Attorney General

Louis J. Caruso

Solicitor General

Counsel of Record

760 Law Building

525 West Ottawa Street

Lansing, Michigan 48913

(517) 373-1124

Gerald F. Young

Paul J. Zimmer

Assistant Attorneys General

Attorneys for Respondents

Dated: April 24, 1987

PRINTED BY SPEAKER-HINES AND THOMAS, INC , LANSING, MICHIGAN— 1987

ios al

QUESTION PRESENTED FOR REVIEW

Whether the Michigan statute requiring the use of cer-

tificated teachers for secular instruction in public and pri-

vate, including religious, elementary and secondary

schools violates petitioners’ rights of free exercise of reli-

gion under the First Amendment?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ........-

INDEX OF AUTHORITIES .............2eeeeeeees

STATEMENT OF THE CASE .........0esseeeeees

SUMMARY OF ARGUMENT ..........-.---eeeeee

ARGUMENT

REASONS WHY THIS COURT SHOULD

DENY THE PETITION FOR A WRIT OF

CERTIORAARL . . och500scetusteteseuasetes

This Court has already declined to re-

view this issue several times .........

The prior decisions of this Court con-

sistently support the authority of the

states to impose reasonable educational

standards on private, religious elemen-

tary and secondary schools ...........

Appellate courts of other states have

reached the same result that Michigan’s

appellate courts reached in this case ..

The fifty state legislatures, rather than

this Court, should be able to select the

means for furthering the state’s com-

pelling interest in the secular education

of all young people in the state .......

CONCLUSION cic cus comenap est tecat ieee terres.

iil

INDEX OF AUTHORITIES

Cases | Page

Board of Education v Allen, 392 US 236 (1968) ..... 4

Brown v Board of Education, 347 US 483 (1954).... 6

Johnson v Charles City Community Schools Board of

Education, 368 NW2d 74 (Iowa, 1985), cert den

sub nom Pruessner v Benton, US ; 106S Ct

Ne gc ou din dc eae weed 4,5

Kentucky State Board for Elementary and Secondary

Education v Rudasill, 589 SW2d 877 (Ky, 1979),

cart Gen 446 US G38 (1960) ...........cccccecss 6

Lemon v Kurtzman, 403 US 602 (1971) ............. 5

Meyer v Nebraska, 262 US 390 (1923) .............. 5

Pierce v Society of Sisters, 268 US 510 (1925)....... 5

Runyon v McCrary, 427 US 160 (1976) ............. 4

Sheridan Road Baptist Church v State of Michigan,

132 Mich App 1; 348 NW2d 263 (1984) ......... i,2

Sheridan Road Baptist Church v State of Michigan,

426 Mich 462; 396 NW2d 373 (1986) ....... me & ®

State of Nebraska ex rel Douglas v Faith Baptist

Church of Louisville, Nebraska, 207 Neb 802; 301

NW2d 571 (1981), app dis 454 US 803 (1981) ... 3,5

State of North Dakota v Patzer, 382 NW2d 631 (ND,

1986), cert den __-_ US__; 107 S Ct 99 (1986)... 4

State of North Dakota v Rivinius, 328 NW2d 220 (ND,

1982), cert den 460 US 1070 (1983) ............. 4,5

State of North Dakota v Shaver, 294 NW2d 883 (ND,

ere i aha ius k Ga Wade ae hoe amide ee 5

State of Ohio v Whisner, 47 Ohio St 2d 181; 351 NE2d

eG fe re ele Seg ite oe ast oe as peck 6

State of Vermont v LaBarge, 134 Vt 276; 357 A2d 121

(Vt, 1976)

Wisconsin v Yoder, 406 US 205 (1972) ..............

Wolman v Walter, 433 US 229 (1977)

Michigan Statutes and Regulations

MCL 388.553; MSA 15.1923

1979 AC, R 390.1145

etre er ee ee es ee ee ee ee

6226824644642 646686 86 666 6464.86 8 4 6846

Page

No. 86-1560

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1986

SHERIDAN ROAD BAPTIST CHURCH, et al,

Petitioners,

STATE OF MICHIGAN,

DEPARTMENT OF EDUCATION, et al,

Respondents.

On Petition for Writ of Certiorari

to the Supreme Court of Michigan

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

In Michigan, the Legislature has required, since 1921,

that teachers in both public and private elementary and

secondary schools hold a teaching certificate. See

MCL 388.553; MSA 15.1923. Petitioners conterd that this

certification requirement, as applied to them, violates their

free exercise of religion rights under the First Amendment.

The Michigan Court of Appeals unanimously sustained

the certification requirement as applied to petitioners. 132

Mich App 1; 348 NW2d 263 (1984). The Michigan Su-

preme Court affirmed that decision by an equally divided

court. 426 Mich 462; 396 NW2d 373 (1986).

a oe

Many religiously-affiliated colleges and universities op-

erate teacher training programs that have been accepted by

Michigan for teacher certification purposes. Many gradu-

ates of fundamentalist Christian institutions, such as Bob

Jones University, have received Michigan teaching certifi-

cates. Petitioners have no religious objections to hiring

teachers holding valid Michigan teaching certificates. Both

schools employ teachers who hold valid Michigan teaching

certificates. A person holding a valid Michigan teaching

certificate could teach the curriculum used in petitioners’

schools without violating petitioners’ religious beliefs.

There was no testimony at trial that there is a shortage of

certificated teachers who share petitioners’ religious be-

liefs or that petitioners cannot staff their schools with cer-

tified teachers. In addition, if petitioners were unable to

find sufficient certificated teachers who also met their reli-

gious qualifications, 1979 AC, R 390.1145 authorizes is-

suance of emergency permits for persons “with reasonable

qualifications when failure to authorize the permit will

deprive children of an education.” See 426 Mich, supra, at

482, 495-497; 396 NW2d, supra, at 381-382, 388 and 132

Mich App, supra, at 12-13, n 1; 348 NW2d, supra, at 269-

270, n 1.

Petitioners’ own expert agreed that educational qualifi-

cations are desirable in the teaching profession. In Michi-

gan, a candidate for certification must take a minimum of

20 semester hours of education courses, which includes a

minimum of six semester hours of directed student teach-

ing. Petitioners’ expert, Dr. Russell Kirk, testified that di-

rected student teaching is “always a good thing.” His ob-

jection to teacher certification was centered on the other

fourteen hours of education courses which, in his view,

consume time that should be spent on substantive subject

matter courses. This dispute over fourteen hours out of a

four-year college program clearly does not rise to the level

of a federal constitutional issue that this Court should re-

—3—

view. See 426 Mich, supra, at 473, 510; 396 NW2d, supra,

at 378, 394-395, and Transcript, Vol 4, April 20, 1982, at

pp 40, 53-54.

SUMMARY OF ARGUMENT

This Court has consistently refused to review teacher

certification requirements challenged on free exercise

grounds. This Court's earlier decisions support the power

of the states to impose reasonable regulations on private,

including religious, elementary and secondary schools.

The result reached .n this case is consistent with the result

reached by other state appellate courts on this issue. The

selection of the means by which each state furthers its

compelling interest in the secular education of all young

people in the state is a matter for the elected representa-

tives of the people in each of the fifty states rather than this

Court.

ARGUMENT

REASONS WHY THIS COURT SHOULD DENY THE PETI-

TION FOR A WRIT OF CERTIORARI

A. This Court has already declined to review this issue

several times.

In State of Nebraska ex rel Doug’as v Faith Baptist

Church of Louisville, Nebraska, 207 Neb 802; 301 NW2d

571 (1981), this Court rejected a free exercise claim against

Nebraska's statutory teacher certification requirement.

This Court dismissed the appeal “for want of a substantial

federal question.” 454 US 803 (1981). On three subsequent

occasions, this Court again declined to review unsuccess-

ful free exercise challenges to statutorily imposed teacher

— wn

certification requirements. State of North Dakota v

Rivinius, 328 NW2d 220 (ND, 1982), cert den 460 US 1070

(1983); Johnson v Charles City Community Schools Board

of Education, 368 NW2d 74 (Iowa, 1985), cert den sub nom

Pruessner v Benton, US__:; 106 S Ct 594 (1985); State

of North Dakota v Patzer, 382 NW2d 631 (ND, 1986), cert !

den. US : 107 S Ct 99 (1986).

B. The prior decisions of this Court consistently support

the authority of the states to impose reasonable edu-

cational standards on private, religious elementary

and secondary schools.

In Board of Education v Allen, 392 US 236, 245-247

(1968), this Court recognized the authority of state legisla-

tures to impose minimum standards on private religious

schools as follows:

“The major reason offered by appellants for distin-

guishing free textbooks from free bus fares is that

books, but not buses, are critical to the teaching proc-

ess, and in a sectarian school that process is employed

to teach religion. However this Court has long recog-

nized that religious schools pursue two goals, religious

instruction and secular education. In the leading case

of Pierce v Society of Sisters, 268 US 510, 69 L Ed

1070, 45 S Ct 571, 39 ALR 468 (1925), the Court held

that although it would not question Oregon's power to

compel school attendance or require that the attend-

ance be at an institution meeting State-imposed re-

quirements as to quality and nature of curriculum,

Oregon had not shown that its interest in secular edu-

cation required that all children attend publicly oper-

ated 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 main-

tained by the Society of Sisters. Since Pierce, a sub-

stantial 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 instruc-

tion, 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 com-

pulsory education statutes. These cases were a sensi-

ble 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 inter-

est in the manner in which those schools perform their

secular educational function... .”

(Footnotes omitted.)

Other cases recognizing this authority include Meyer v

Nebraska, 262 US 390, 402 (1923); Pierce v Society of

Sisters, 268 US 510, 534 (1925); Lemon v Kurtzman, 403

US 602, 614 (1971); Wisconsin v Yoder, 406 US 205, 213

(1972); Runyon v McCrary, 427 US 160, 178-179 (1976);

Wolman v Walter, 433 US 229, 240 (1977).

C. Appellate courts of other states have reached the

same result that Michigan’s appellate courts reached

in this case.

Other state appellate courts have consistently upheld

statutory teacher certification requirements against free

exercise of religion challenges. State of North Dakota v

Shaver, 294 NW2d 883 (ND, 1980); State of Nebraska ex

rel Douglas v Faith Baptist Church, supra; State v

Rivinius, supra; Johnson v Charles City Community

Schools Board of Education, supra. These decisions, in

harmony with the teachings of this Court, sustain reason-

able state regulations imposed on both public and private,

~—

including religious, elementary and secondary schools in

furtherance of each state’s compelling interest in the sec-

ular education of al! young people in the state.

The cases relied upon at pages 11 and 12 of the petition

for certiorari, in support of an alleged conflict in state court

decisions on the teacher certification issue, are clearly not

applicable. Kentucky State Board for Elementary and

Secondary Education v Rudasill, 589 SW2d 877 (Ky, 1979),

cert den 446 US 938 (1980), was decided solely on the basis

of a unique Kentucky state constitutional provision that no

man “be compelled to send his child to any school to

which he may be conscientiously opposed.” State of Ohio

v Whisner, 47 Ohio St 2d 181; 351 NE2d 750 (1976), in-

volved an attempt at gross overregulation of nonpublic

schools far more onerous than even those regulations to

which Ohio public schools were subject. State of Vermont

v LaBarge, 134 Vt 276; 357 A2d 121 (Vt, 1976), was a

truancy prosecution. While a child had to attend an “‘ap-

proved” nonpublic school to be exempt from the compul-

sory attendance law, schools were not required to be ap-

proved and there was no statutory mechanism for regulat-

ing nonpublic schools. Upon close examination, it is clear

that there is no conflict among state courts on the teacher

certification issue as applied to private, religious schools.

D. The fifty state legislatures, rather than this Court, should

be able to select the means for furthering the state’s

compelling interest in the secular education of all young

people in the state.

It is beyond dispute that the State of Michigan, along

with the other 49 states, has a compelling interest in the

secular education of its youthful residents. Brown v Board

of Education, 347 US 483, 493 (1954). There are a variety

of potential means to effectuate that compelling state in-

terest including teacher certification, teacher testing, or

some form of standardized testing of students in private

pe SM

schools. Six states, including Michigan, have imposed

teacher certification requirements. Other states have recently

amended their legislation to provide different means of ef-

fectuating their compelling interest in the secular education

of their resident youth. 426 Mich, supra, at 561-562, n 58, n

59; 396 NW2d, supra, at 419-420, n 58, n 59.

Since only six states currently impose comparable

teacher certification requirements upon nonpublic

schools, it is hardly a national problem demanding this

Court's attention. Further, the legislative activity in this

area demonstrates that, in keeping with our democratic

federal system and separation of powers, elected repre-

sentatives in each state should and do make these educa-

tional decisions for the people of each state. This Court

should not attempt to enunciate a rule binding upon all

fifty states.

CONCLUSION

For all of the foregoing reasons, this Court should deny

the petition for writ of certiorari.

Respectfully submitted,