Opposition Brief — New Life Baptist Church Academy v. Town of East Longmeadow

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No. 89-1118 JOSEPH F. SPAWIOL Jp

CLERK

In the

Supreme Court of the United States

OCTOBER TERM, 1989

NEW LIFE BAPTIST CHURCH ACADEMY, ET AL.,

PETITIONERS,

TOWN OF EAST LONGMEADOW, ET AL.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

Brief for the Respondents in Opposition

JANET STECKEL LUNDBERG*

RICHARD M. BLUESTEIN

KROKIDAS & BLUESTEIN

One Milk Street

Boston, Massachusetts 02109

(617) 482-7211

* Counsel of Record

BOSTON, MASSACHUSETTS

BATEMAN & SLADE. INC

Questions Presented

1. Whether certiorari is warranted to review a case involving

State regulation of a private religious school under the Free

Exercise and Establishment Clauses of the First Amendment,

where the court of appeals fully applied the traditional standards

for First Amendment review consistent with a large and uni-

form body of law in the federal and state lower courts.

2. Whether certiorari is warranted to review the claim, not

raised below, that the procedures of a local school committee

for private school approval are unconstitutionally discretionary

where those procedures implement objective standards for ap-

proval, the constitutionality of which has already been consid-

ered and upheld, set forth in the state’s compulsory education

Statute.

3. Whether the court of appeals properly exercised its appel-

late authority in reviewing the findings of the district court.

Table of Contents.

Opinions below |

Jurisdiction

Statement

Argument 1]

Conclusion 22

Table of Authorities Cited.

CASES.

Aguilar v. Felton, 473 U.S. 402 (1985) 17n

Attorney General v. Bailey, 386 Mass. 367, 436 N.E.2d

~ 139, cert. denied 459 U.S. 970 (1982) 13n

Board of Education v. Allen, 392 U.S. 236 (1968) 12n

Bob Jones University v. United States, 461 U.S. 574

(1983) 12n

Bose Corporation v. Consumers Union of United States,

Inc., 466 U.S. 485 (1984) 8n, 18, 19, 21

Bowen v. Roy, 476 U.S. 693 (1986) 13, 19n

Braintree Baptist Temple v. Holbrook Public Schools,

616 F.Supp. 81 (D.C. Mass. 1984) 1. 6, 16

Braunfeld v. Brown, 366 U.S. 599 (1961) on

Burrow v. State, 282 Ark. 479, 669 S.W.2d 441 (1984) 14n

Care and Protection of Charles, 399 Mass. 324, 504

N.E.2d 592 (1987) 2n, 4n, 15, 16

Committee for Public Education and Religious Liberty

v. Regan, 444 U.S. 646 (1980) 12n

il TABLE OF AUTHORITIES CITED.

Edwards v. South Carolina, 372 U.S. 229 (1963) 18n

Everson v. Board of Education, 330 U.S. 1 (1947) 12n

Fellowship Baptist Church v. Benton, 815 F.2d 485

(8th Cir. 1987) 12n

Hague v. Committee for Industrial Organization, 307

U.S. 496 (1939) 17n

Harte-Hanks Communications, Inc. v. Connaughton,

U.S. , 109 S.Ct. 2678 (1989) 18n

Hobbie v.. Unemployment Appeals Commission, 480

U.S. 136 (1987) 13

Howell v. State, 723 S.W.2d 755 (Tex. App. 1986) —14n

International Longshoremen’s and Warehousemen’s

Union v. Boyd, 347 U.S. 222 (1954) 2In

Laird v. Tatum, 408 U.S. 1, reh’g denied, 409 U.S. 901

(1972), 479 U.S. 911 (1986) 2In

Lemon v. Kurtzman, 403 U.S. 602 (1971) 17n, 20

Lyng v. Northwest Indian Cemetery Protective Associa-

tion, 485 U.S. 439 (1988) 8n

Maine v. Taylor, 477 U.S. 131 (1986) 19n

Mazanec v. North Judson-San Pieree School Corpora-

tion, 614 F.Supp. 1152 (N.D. Ind. 1985), aff'd, 798

F.2d 230 (7th Cir. 1986) 14n

McDaniel v. Paty, 435 U.S. 618 (1978) 12n

Meek v. Pittenger, 421 U.S. 349 (1975) 17n, 18n

Miller v. Fenton, 474 U.S. 104 (1985) 8n, 18, 19, 20n

Murphy v. Arkansas, 852 F.2d 1039 (8th Cir. 1988) 14

New York Times Company v. Sullivan, 376 U.S. 254

(1964) 18n

TABLE OF AUTHORITIES CITED. ill

North Valley Baptist Church v. McMahon, 696 F.Supp.

518 (E.D. Cal. 1988) 14n

People v. Turner, 121 Cal. App.2d Supp. 861, 263 P.2d

685 (1953), dismissed for want of a substantial feder-

al question, 347 U.S. 972 (1954) 15n

Pierce v. Society of Sisters, 268 U.S. 510 (1925) y ae S

Rankin v. McPherson, 483 U.S. 378, reh’g denied, 483

U.S. 1056 (1987) 18n

Roemer v. Board of Public Works of Maryland, 426

U.S. 736 (1976) 17n

Rosenbloom v. Metromedia, Inc., 403 U.S.29(1971) 8n,18

Runyon v. McCrary, 427 U.S. 160 (1976) 12n

Sherbert v. Verner, 374 U.S. 398 (1963) 6n, 12n

Sheridan Road Baptist Church v. Department of Educa-

tion, 132 Mich. App. 1, 348 N.W.2d 263 (1984),

aff ’d 426 Mich. 462, 396 N.W.2d 373 (1986), cert.

denied, 481 U.S. 1050 (1987) 12n, 13n

State v. Patzer, 382 N.W.2d 631 (N.D.), cert. denied,

479 U.S. 825 (1986) 12n

State v. Riddle, 168 W.Va. 429, 285, S.E.2d 359

(1981) 13n

State v. Rivinius, 328 N.W.2d 220 (N.D. 1982), cert.

denied, 460 U.S. 1070 (1983) 13n

State v. Schmidt, 29 Ohio St. 3d, 32, 505 N.E.2d 627,

cert. denied, 484 U.S. 942 (1987) 12n

State v. Shaver, 294 N.W.2d 883 (N.D. 1980) 13n

State ex rel. Minami v. Andrews, 65 Haw. 289, 651

P.2d 473 (1982) 14n

Texas Monthly, Inc. v. Bullock, U.S. , 109

S.Ct. 890 (1989) 12n

1V TABLE OF AUTHORITIES CITED.

Thomas v. Review Board of Indiana Employment

Security, 450 U.S. 707 (1981) 6n, 12n

Tilton v. Richardson, 403 U.S. 672, reh’g denied, 404

U.S. 874 (1971) —*18n

United Public Workers of America v. Mitchell, 330

U.S. 75 (1947) 21n

United States v. Lee, 455 U.S. 252 (1982) 6n, 8n, 12n

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, reh’g denied, 456 U.S.

950 (1982) 16

Wisconsin v. Yoder, 406 U.S. 205 (1972) 6, 10, 12n, 13

Wolman v. Walter, 433 U.S. 229 (1977) 12n, 17n

CONSTITUTIONAL PROVISIONS.

28 U.S.C. § 1254(1) 2

United States Constitution

First Amendment passim

Federal Rules of Civil Procedure

Rule 52(a) 18, 21

STATUTES.

Massachusetts General Laws

e771, 31 2

c. 76, § 1 2, 6, 15, 16

c. 76, § 2 2, 16

c. 76, § 3 16

c. 119 2n

No. 89-1118

In the

Supreme Court of the United States

OCTOBER TERM, 1989

NEW LIFE BAPTIST CHURCH ACADEMY, ET AL.,

PETITIONERS,

TOWN OF EAST LONGMEADOW, ET AL.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

Brief for the Respondents in Opposition

Opinions Below

The opinion of the court of appeals (Pet. App. 1a-50a) is

reported at 885 F.2d 940. The district court issued three deci-

sions. The first, not included to Petitioner’s Appendix is re-

ported, sub nom. Braintree Baptist Temple v. Holbrook Public

Schools, at 616 F.Supp. 81. The district court decisions ap-

pealed from (Pet.App. 51a-169a, and 170a-178a) are reported

at 666 F.Supp. 293 and 718 F.Supp. 2.

Jurisdiction

The judgment of the court of appeals was entered on Sep-

tember 7, 1989, and rehearing was denied on October 13,

1989. The petition for a writ of certiorari was filed on January

11, 1990. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

Statement

1. The Massachusetts General Laws (“M.G.L.”) require all

school age children to attend school. M.G.L. c. 76, § 2.'

Pursuant to M.G.L. c. 76, § 1, to fulfill this requirement,

children may attend a “public day school” in the town where

they reside or “some other day school approved by the school

committee” of the town where they reside. The school commit-

tee must approve a private school “when satisfied that the

instruction in all the studies required by law equals in thorough-

ness and efficiency, and in the progress made therein, that in

the public schools in the same town. . . .” However, the statute

requires that the school committee “shall not withhold such

approval on account of religious teaching. . . .” Jd. M.G.L.

c. 71, § 1, requires that schools employ teachers of “competent

ability” and defines the required studies to include orthography,

reading, writing, English, grammar, geography, arithmetic,

drawing, music, the history and Constitution of the United

States, the duties of citizenship, health education, physical

education and good behavior.

‘Chapter 76, § 2, provides a criminal penalty for truancy. Government

officials also have the option of enforcing M.G.L. c. 76, § 1, through a civil

care and protection petition pursuant to M.G.L. c. 119. The remedies under

this provision could include a court order cornpelling education or even removal

of the children from their parents’ care. See Care and Protection of Charles,

399 Mass. 324, 329-331, 504 N.E.2d 592 (1987).

2. The petitioner New Life Baptist Church Academy (“New

Life”) is a private school founded in 1981 by the New Life

Baptist Church, a Fundamentalist Baptist Church located in

East Longmeadow, Massachusetts, to provide secular and re-

ligious education aimed primarily at “born again Christians”

who share certain fundamentalist religious beliefs. Pet.App.

8a, 6la-62a. New Life believes that God is the sovereign and

final authority in all human conduct and that, therefore, to

submit their educational ministry to the prior or continued

approval of secular authority would violate the sovereignty of

Christ over his church and would, therefore, be a sin. Pet. App.

8a, 62a-63a.

New Life opened its school in 1981 without notifying the

Respondent Town of East Longmeadow School Committee

(“School Committee”) or seeking approval. After being con-

tacted by the Superintendent of the East Longmeadow public

schools in 1982 with requests for information, New Life even-

tually indicated that it did not desire approval by the School

Committee, but was willing to provide the information re-

quested. Pet.App. 63a-67a. After the School Committee re-

quested further information in early 1983, petitioners filed this

lawsuit in federal district court in March, 1983. New Life so

informed the School Committee by letter, but welcomed School

Committee officials to visit the school anytime. Pet. App. 66a-

70a.

3. The proposed procedure developed by the School Com-

mittee for use in determining whether the education provided

at New Life complies with statutory requirements has been

modified several times to accommodate New Life. Pet. App.

6a. As summarized by the court of appeals (Pet. App. 7a) and

the district court (Pet.App. 71a-73a), the proposed process is

as follows:

(a) Obtain information about the school’s pupils, texts, daily

class schedules, hours and days taught, compliance with health

and safety rules, and curricula for each grade and subject.

(b) Examine the academic qualifications of faculty mem-

bers.’

and to obtain a first-hand impression of teaching methods,

instructional materials, and curricula.

(d) If the teachers lack adequate academic credentials, visit

the school additional times to observe classroom teaching.

(e) Make suggestions for correcting deficiencies in the

school’s educational program (if any).’

If approval of a school program is obtained, the School

Committee would review its compliance every two years,

through written communications. If approval were denied, the

school would be given a chance to improve and have approval

reconsidered if it so desired. As a further accommodation to

New Life, the School Committee agreed to forego a formal

request for approval and conduct its own approval examination

if New Life would simply submit factual information. Pet. App.

Ta-8a.

4. With respect to these requirements of the School Commit-

tee, and of secular authority generally, as summarized by the

court of appeals (Pet.App. 9a-10a) and the district court

(Pet.App. 73a-81a), New Life has no objection to:

(a) complying with state health, safety and zoning rules;

(b) being incorporated under Massachusetts law;

mittee about the number of its students, the number of hours

*The School Committee proposed to require that all teachers have college

degrees, but intended to allow the school to employ some teachers who were

studying for college degrees, but had not yet obtained them. Pet.App. 72a.

The district court ruled that, under Care and Protection of Charles, supra, a

college degree requirement was not permitted under Massachusetts law.

Pet.App. 55a-S6a. That ruling was not directly in contention on appeal.

‘Further observation of teachers who lacked credentials and advice in furth-

erance of apprcval were intended by the School Committee to assist schools

which would otherwise not be approved. See Pet.App. 49a, 72a-73a.

and days taught, the curriculum, texts, the number of teachers,

and the criteria for hiring teachers;

(d) permitting School Committee officials to visit New Life

occasionally to meet administrators and teachers, to read texts,

and to observe classes;

(e) teaching the subjects required by state law, and holding

classes the number of days required by state law;

(f) hiring teachers with adequate credentials, although, to

the extent it indicates New Life’s compliance with an approval

requirement, they will not comply with requirements regarding

specific teachers.

New Life does object, however, to any form of governmental

approval of its educational program and to any procedure which

is aimed at gaining such governmental approval. Therefore,

New Life asserted, as to items (c) through (f), the specific

requirements of the School Committee, that, although it does

not object to the substance of those requirements, it would not

meet those requirements since it cannot permit the School

Committee any form of approval. Pet.App. 9a-10a, 73a-74a,

Sila.

Because of these religious objections, New Life at trial

proposed an alternative which permitted the School Committee

no direct review and no approval at all of the educational

program at the school itself. New Life asserted that it would

have no objection if its students voluntarily submitted to stan-

dardized tests and if their parents voluntarily submitted their

children’s test scores to the School Committee. New Life also

had no religious objection if the parents of children whose

scores showed educational difficulties voluntarily consulted

with public officials, with the voluntary participation of New

Life staff, to determine a remedy to the problem. Pet.App.

10a, 82a.*

“The court of appeals stated that New Life proposed also voluntarily to

submit factual information about the school to the School Committee in con-

5. Prior to trial, the district court heard defendants’ motions

to dismiss all counts of the complaint. Braintree Baptist Tem-

ple, 616 F.Supp. at 84. For various reasons, the court dismissed

all causes of action raised in the complaint except those arising

under the First Amendment for violation of the Free Exercise

and Establishment Clauses. /d. at 87-92. Among the counts

dismissed was one seeking the invalidation of M.G.L. c. 76,

§ 1, as unconstitutionally vague for failing to set adequate

standards for approval of private schools. /d. at 91.

After evidentiary hearings, the district court ruled that the

School Committee’s proposed procedures violated the Free

Exercise and Establishment Clauses of the First Amendment.

First, it held that M.G.L. c. 76, § 1, was not unconstitutional

but that it would consider whether the School Committee's

application of the statute was. With respect to the Free Exercise

claim, the court applied the traditional four-prong test’ but

held that it was not a balancing test under Wisconsin v. Yoder,

406 U.S. 205 (1972). Thus, the court held it was prohibited

from balancing its perception of the weight of the burden on

junction with its students’ taking of standardized tests. That, however, was

not part of the proposal of New Life (See Pet.App. 82a), but rather was part

of the alternative as envisioned by the district court. See infra, page 7.

*The relevant factors developed by this Court are:

(1) Whether a plaintiff's free exercise claim is motivated by a sincerely held

religious belief. Wisconsin v. Yoder, 406 U.S. 205, 215-216 (1972).

(2) Whether, and to what extent, a plaintiff's free exercise of religion has

been burdened by government regulation. Yoder, 406 U.S. at 217-219; Sherbert

v. Verner, 374 U.S. 398, 403-406 (1963).

(3) Whether the state may justify any limitation on religious liberty by

showing that its action is essential to accomplish a compelling or overriding

governmental interest. United States v. Lee, 455 U.S. 252, 257 (1982); Yoder,

406 U.S. at 219-234; Sherbert, 374 U.S. at 407.

(4) Whether any less intrusive means of achieving the state’s compelling

interest is available. Thomas v. Review Board of Indiana Employment Security,

450 U.S. 707, 718 (1981); Sherbert, 374 U.S. at 407.

religious belief against its assessment of the importance of the

competing state interest or the cost to the School Committee

of accommodating such a religious objection through an excep-

tion to its generally applicable procedure. Pet. App. 1 12a-118a.

The court then held that the petitioners’ religious beliefs

were sincerely held and were burdened by the School Commit-

tee’s process, and that the state had a compelling interest in

“basic education”. Pet. App. 118a-138a. The court found, how-

ever, that the use of standardized tests was a less restrictive

means of achieving that state’s interest in education than was

the School Committee’s approval process. The court proposed

an alternative which included (1) “providing” basic information

regarding the students, school and curriculum; (2) standardized

testing with individual follow-up and (3) possibly, a require-

ment that teachers have appropriate academic credentials.

With respect to this alternative, the court believed that an

academic credentials requirement might be necessary because

the expert testimony at trial had shown that standardized tests

are “ex post facto” in nature — i.e. that they show only what

a child learned in the past, not whether a school had teaching

methods adequate to ensure academic growth in the future.

The court nevertheless refused to order that academic creden-

tials should be required. The court also recognized the concern

that this procedure fails to reveal where students’ knowledge

was gained, and thus might mask teaching inadequacies. How-

ever, it held these concerns to be irrelev unt since the state’s

interest in education is limited to determining what children

know, not what schools teach. It held that the follow-up pro-

cedure would be effective because parents would cooperate

and the School Committee could, absent cooperation, bring

civil care and protection proceedings to compel education at

an approved school or, possibly, remove children from their

parents’ care. Pet.App. 99a-100a, 139a-146a.

Finally, the court held that the School Committee’s approval

process violated the Establishment Clause because it engen-

dered excessive entanglement between the state and religion

through continuing surveillance of a religious institution as

part of a regulatory scheme. In contrast, the court held that

the alternatives it suggested would not violate the Establish-

ment clause, either by favoring religion or by engendering

excessive contacts between the government and a religious

organization. Pet.App. 147a-166a.

As a result, the court issued an order permanently enjoining

the School Committee from applying its approval process to

petitioners and from prosecuting the parent petitioners for fail-

ure to send their children to an approved private school or a

public school. Pet.App. 168a-169a. This order was later con-

verted to a final judgment and certified for appeal. 170a-178a.

6. The court of appeals reversed. In doing so, it reviewed

the whole record, and recognized that in First Amendment

cases it must employ de novo review to questions of “constitu-

tional fact”.° Pet. App. 4a-Sa. On the Free Exercise claim,

the court also applied the traditional four-pronged test (see

supra, page 6 n.5), and considered two questions — (i) whether

the Free Exercise Clause forbade the School Committee from

approving secular education offered at a religious school over

a religious objection to such approval, and (ii) if not, whether

the Free Exercise Clause forbade the School Committee from

following its proposed approval procedures rather than the

standardized testing procedures preferred by New Life.

Pet.App. 12a-13a.

As to the first question, the court found that the School

Committee may enforce the state law requiring direct approval

of New Life’s secular education program. It recognized New

*Citing Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 54 (1971); Miller

v. Fenton, 474 U.S. 104, 113-115 (1985); Bose Corporation v. Consumers

Union of United States, Inc., 466 U.S. 485, 499 (1984).

Life’s sincere religious belief and that the approval requirement

contained in state law burdened that belief. It also found that

the state’s interest in ensuring that children receive an adequate

secular education is compelling, and that there was no way

that interest could be served except through some form of state

evaluation and approval. The court noted that such approval

standards must be reasonable, but that, since they have not

yet been presented or applied (other than those contained in

the statute), there was no reason to believe they would not be

constitutionally permissible. Pet.App. 13a-18a.

As to the second question, the court reached the fourth prong

of the Free Exercise test — whether standardized testing con-

stituted a “less restrictive” means of achieving the state’s com-

pelling goals. It noted that “least restrictive means” analysis

is not self-defining. It must reflect the need to “balance” the

State’s interests against the probable burdens on religious free-

dom, the need to determine the extent to which accomodation

of religious belief interferes with achieving the state’s compel-

ling interest, and the administrative considerations which arise

from such accommodation, noting that the Free Exercise

Clause gives the state some degree of administrative leeway.’

Pet.App. 19a-24a.

Based on these considerations, the ccurt found that the First

Amendment does not preclude the School Commnittee from

using its approval process, nor compel the use of the standar-

dized testing method proposed by New Life and the district

court. The court considered the numerous educational difficul-

ties which arose from the voluntary nature of the standardized

testing system considered by the district court, as well as the

problems which the remedial “follow-up” with individual chil-

dren would create under the Establishment Clause. Pet.App.

’Citing Lyng v. Northwest Indian Cemetery Protective Association, 485

U.S. 439 (1988); Braunfeld v. Brown, 366 U.S. 599, 606 (1961); United

States v. Lee, 455 U.S. 252, 260-261 (1982).

26a-28a. The court raised numerous questions, suggested by

the record, as to the efficacy of standardized testing to indicate

academic progress. However, it did not view those questions

as dispositive, but rather as indications of the types of obstacles

and the significant additional administrative problems which

such a system would impose upon the School Committee.

Pet.App. 28a-32a.

The court considered the comparative religious burdens of

the standardized testing method on New Life and concluded

they were great, since New Life would be involved annually

in the School Committee’s approval of the tests to be given,

and in negotiations with the School Committee over interpre-

tation of the tests and the appropriate follow-up or remedial

procedures. The burdens on the parents and students of New

Life, the court concluded, would be even greater, since they

risked enforced remedial or alternative schooling obligations

or criminal and civil enforcement proceedings to remove chil-

dren from their families. Even paying heed to New Life’s

preference for the procedure, the court concluded that it was

not significantly less burdensome than the School Committee’s

proposed procedure. Pet.App. 31a-35a.

Finally, the court held that the weight of legal precedent

was strongly against New Life’s position, since numerous

court’s had considered and rejected religious objections to

school approval and religious preferences for standardized test-

ing in similar circumstances. Pet.App. 35a-37a. The court

distinguished the instant case from Yoder, supra, and from

cases involving pervasive and all-encompassing school regula-

tions. Pet.App. 37a-40a.

With respect to the Establishment Clause, the court reviewed

New Life’s claim that the School Committee’s review of

teacher credentials would create excessive government entang-

lement with religion. The court considered the district court’s

findings on how such review would take place — i.e. with

one initial visit and additional visits only if teaching credentials

are inadequate. Since New Life has no religious objection to

hiring qualified teachers, and the district court found such

teachers were available, the court held such additional visits

might not take place. The court assumed that the School Com-

mittee would implement these proposed procedures reasona-

bly, and noted that state law prohibited School Committee

officials from considering religious matters in any school ob-

servation. Thus, the court held that, under this Court’s cases

on Establishment entanglement, the proposed visits were not

impermissible since they did not implicate the provision of

services to a religious school, did not seek to exercise control

of religious matters, and were not unduly intrusive. Pet.App.

42a-47a. The court noted that, if not reasonably applied, the

School Committee’s procedures could become unduly entang-

ling. But since additional visits were proposed only as an

accommodation to New Life, if teachers lack credentials, to

determine whether they nevertheless could teach adequately,

the court found no precedent for holding such additional visits

as proposed to be in violation of the Establishment Clause.

Argument.

The decision of the court of appeals is correct and does not

conflict with any decisions of this Court or any other court.

Review by this Court therefore is not warranted.

1. There is no need, as petitioners claim (Pet. 14-22), for

this Court to clarify the application of its Free Exercise standard

to cases involving the manner of state regulation of education

in religious schools. Petitioners assert (Pet. 19-21) that the

lower courts are in confusion regarding the proper application

of the standard. They claim the covrt of appeals (at Pet. App.

16a-17a), unlike the district court, wrongly eschewed the

Court’s Free Exercise cases in favor of the line of cases follow-

ing Pierce v. Society of Sisters, 268 U.S. 510 (1925),* which

set forth the state’s right to regulate private school education.

Petitioners are incorrect.

This Court’s four-pronged Free Exercise standard was an-

nounced and developed in a series of cases. See supra, page

6n.5. The court of appeals specifically adopted and applied that

standard to both Free Exercise questions presented by petition-

ers — whether New Life’s objection to approval per se may

stand and whether its preference for standardized testing is

constitutionally mandated. Pet. App. 12a-26a. The only dispute

which arose between the district court and the court of appeals

regarding the proper scope of the Court’s Free Exercise stand-

ard was whether the Court has required or prohibited the use

of a balancing test to apply the factors contained in that stand-

ard.

On this point, the court of appeals, which adopted a balanc-

ing approach, was clearly correct. As the court pointed out

(Pet. App. 20a-21a), this Court has consistently used a balanc-

ing of interests approach in Free Exercise cases.’ The lower

courts have done the same." In contrast, the district court

*Everson v. Board of Education, 330 U.S. | (1947); Board of Education

v. Allen, 392 U.S. 236 (1968); Runyon v. McCrary, 427 U.S. 160 (1976);

Wisconsin v. Yoder, 406 U.S. 205 (1972). See also Committee for Public

Education and Religiouis Liberty v. Regan, 444 U.S. 646, 653-654 (1980);

Wolman v. Walter, 433 U.S. 229, 240 (1977) (in reasonably regulating schools,

States “may examine both teachers and pupils. . . .”).

* Texas Monthly, Inc. v. Bullock, U.3. , 109 S.Ct. 890, 902 (1989);

Bob Jones University v. United States, 461 U.S. 574, 603-604, and n.29

(1983); Lee, 455 U.S. at 256-260; Thomas, 450 U.S. at 718; McDaniel v.

Paty, 435 U.S. 618, 628, n.8 (1978); Yoder, 406 U.S. at 214, 215, 221;

Sherbert, 374 U.S. at 403.

'° Fellowship Baptist Church v. Benton, 815 F.2d 485, 491 (8th Cir. 1987);

State v. Schmidt, 29 Ohio St.3d 32, 50S N.E.2d 627, 629, cert. denied 484

U.S. 942 (1987); State v. Patzer, 382 N.W.2d 631, 634 (N.D.), cert. denied

479 U.S. 825 (1986); Sheridan Road Baptist Church v. Department of Educa-

misread Hobbie v. Unemployment Appeals Commission, 480

U.S. 136, 140 (1987), to call for the invalidation of the balanc-

ing test by using “strict scrutiny” language. However, the

Hobbie language was a direct response to Bowen v. Roy, 476

U.S. 693 (1986), where a minority of the Court substituted a

“reasonable means” approach for the compelling state interest

prong of the standard balancing test. 476 U.S. at 707-708

(Opinion of Burger, C.J.). The Hobbie Court rejected this

standard as “minimal scrutiny”, and reaffirmed the traditional

balancing test. It emphasized however, that the standard re-

quired strict scrutiny of the state interests involved. Hobbie,

480 U.S 141-142, citing Yoder, 406 U.S. at 215. Thus, the

Court in Hobbie accepted the balancing test, contrary to the

district court’s claim.

Nor was the court of appeals’ reliance on the Pierce line of

cases (see supra, page 12, and n.8) inconsistent with the appli-

cation of the appropriate Free Exercise standard, as petitioners

claim. In fact, the court relied on those cases not in lieu of

the Free Exercise standard, but rather to address the state’s

“compelling interest” as part of that standard. In answer to

petitioners’ assertion, and the district court’s ruling, that a reli-

gious objection could block all state approval of education at

a religious school, the court correctly held that the Pierce cases

affirmed the state’s overriding interest in its ability reasonably

to regulate schools directly. Furthermore, since no way had

been suggested to serve this interest without some form of

approval, the court ultimately ruled that petitioners’ religious

objection to approval per se must give way. Pet. App. 14a-17a.

tion, 132 Mich. App. 1, 348 N.W.2d 263, 270 (1984), aff’d 426 Mich. 462,

396 N.W.2d 373, 382 (1986), cert. denied 481 U.S. 1050 (1987); Attorney

General v. Bailey, 386 Mass. 367, 375, 377, 436 N.E.2d 139 (1982), cert.

denied 459 U.S. 970 (1982); State v. Rivinius, 328 N.W.2d 220, 224, 226,

229 (N.D. 1982), cert. denied 460 U.S. 1070 (1983); State v. Riddle, 168

W.Va. 429, 285, S.E.2d 359, 365 (1981); State v. Shaver, 294 N.W.2d 883,

889-891 (N.D. 1980).

In addition, contrary to petitioners’ claim, there is absolutely

no confusion or conflict in the lower courts regarding the

application of the Free Exercise standard to cases involving

the proper extent of state regulation of religious schools. The

lower courts have in large numbers and with complete consis-

tency held that state approval of religious school education is

permitted in the face of sincere religious objections to such

approval, and that the standardized testing approach is not

constitutionally required where the government prefers infor-

mation gathering and analysis.'' A review of these numerous

cases shows that, in virtually all of them, the courts identified

and applied the same Free Exercise and balancing standard

used by the court of appeals here, and upheld the state regula-

tion involved.

No conflict with this broad body of law was created, as

petitioners assert (Pet. 26), by the decision of the Eighth Circuit

in Murphy v. Arkansas, 852 F.2d 1039 (8th Cir. 1988), where

the court rejected a challenge to standardized testing required

by Arkansas legislation permitting home schooling.'? The fact

that Murphy found standardized testing to be within the con-

Stitutionally acceptable range does not, of course, mean that

it limited that range. Indeed, the court there approved standard-

ized testing because it was the only safeguard the state had

chosen to ensure adequate private education. It compared that

choice to other states where greater safeguards, such as teacher

''The court of appeals collected and categorized the long list of decided

cases addressing these issues at Pet.App. 35a-37a. In addition to those cases,

courts have also rejected religious objections to regulations or prohibitions on

private schools or home education in North Valley Baptist Church v. McMahon,

696 F.Supp. 518 (E.D. Cal. 1988); Mazanec v. North Judson-San Pierre

School Corporation, 614 F.Supp. 1152 (N.D.Ind. 1985), aff'd, 798 F.2d 230

(7th Cir. 1986); Howell v. State, 723 S.W.2d 755 (Tex.App. 1986); State ex

rel. Minami v. Andrews, 65 Haw. 289, 651 P.2d 473 (1982).

'? Arkansas had formerly constitutionally banned all home schooling. Burrow

v. State, 282 Ark. 479, 669 S.W.2d 441 (1984).

certification and curriculum requirements, had been approved

as constitutional. 852 F.2d at 1042-1043.

In the face of this consistent approach of the lower courts,

as petitioners concede (Pet. 15, n. 17), this Court has always

denied review.'"* Similarly, nothing in the court of appeals’

approach here to the Free Exercise standard warrants review.

2. Petitioners next attempt to retrench their position by claim-

ing (Pet. 22) that they do not object to all forms of approval,

and have conceded that some form of approval is necessary.

Thus, petitioners take this opportunity to claim (Pet. 23-28)

that the School Committee’s process is insufficient because it

involves a discretionary procedure, rather than an objective

standard, for approval.

However, this is not the claim which petitioners presented to

either the district court or the court of appeals. On the contrary,

it was petitioners’ specific position, as both the district court

and court of appeals found, that they had no religious objection

at all to the substance of the requirements proposed by the

School Committee, but instead held a strictly per se objection

to the School Committee’s approval or disapproval of the

school’s program itself. See supra, page 5.

Likewise, petitioners have never before raised, and neither

the district court nor the court of appeals addressed, the claim

that the School Committee’s procedures are faulty because

they lack objective standards. In any event, it is the Common-

wealth’s compulsory education statute (M.G.L. c. 76, § 1)

which sets forth the standards for approval of private school

education. Indeed, in the Commonwealth, the setting of such

educational standards is a function reserved for the Legislature.

See Care and Protection of Charles, 399 Mass. at 332. Thus,

’ Petitioners’ list of cases in which certiorari was denied or appeals were

dismissed for want of a substantial federal question (Pet. 15, n.7) fails to

include People v. Turner, 121 Cal.App.2d Supp. 861, 263 P.2d 685 (1953),

dismissed for want of a substantial federal question, 3247 U.S. 972 (1954).

the fact that the School Committee’s requirements constitute

“process” rather than standards is precisely because they are

intended to be the School Committee’s method for determining

whether the objective standards of the statute are met. /d.

In this regard, it is the law of this case that the statututory

standards for approval are sufficiently objective to be constitu-

tional. The district court here so held in ruling on defendants’

motion to dismiss below, and that ruling was not appealed.

Braintree Baptist Church, 616 F.Supp. at 91. In addition, the

state Supreme Judicial Court has reviewed ard rejected the

claim that the standards set forth in the statute are unconstitu-

tionally vague for failure to provide objective standards or

constitute an illegal delegation of authority to the school com-

mittees. Care and Protection of Charles, supra.

In Charles, after reviewing the statutory standards set forth

in M.G.L. c. 71, §§ 1, 2, and 3, and the approval standards

set forth in M.G.L. c. 76, § 1 (see supra, page 2), the Supreme

Judicial Court held that this “body of substantive law .. .

provides the superintendents and school committees of the

Commonwealth with sufficient standards .. .” (/d. at 331)

and “‘does not impermissibly delegate basic policy matters

. . . for resolution on an ad hoc and subjective basis, with the

attendant dangers of arbitrary and discriminatory applica-

tions.’”’ Jd. at 332, citing Village of Hoffman Estates v. Flip-

side, Hoffman Estates, Inc., 455 U.S. 489, 498-499; reh’g

denied, 456 U.S. 950 (1982). Nor, since the statute specifically

forbids the school committee from withholding approval of

private schools “on account of religious teaching . . .” are any

constitutionally protected rights implicated, a factor this Court

has indicated is the most important in determining a statute’s

constitutionality in this area. Hoffman Estates, 455 U.S. at

499. Care and Protection of Charles, 399 Mass. at 331-332."

‘*The court also set forth further guidelines “which provide particulars

through which the reasonableness” of approval may be measured. /d. at 333.

Thus, the court of appeals here made no error in failing to

to invalidate the School Committee’s procedures as unduly

discretionary. Not only was the issue not raised, the School

Committee’s procedures are strictly governed by the objective

standards for approval set forth in the statute and the guidelines

set forth by the Supreme Judicial Court, and thus are not

unconstitutionally subjective.’

3. Petitioners next fault the adequacy of the court of appeals’

review under the Establishment Clause, asserting (Pet. 28-30),

that the court distinguished this Court’s cstablishment cases

and failed to recognize that the cases aim not only at protecting

government from too much control by the church, but also at

protecting the church from too much interference by the the

government. This characterization is completely wrong.

In fact, the court of appeals made extensive analysis of

whether the School Committee’s procedures would result in

burdensome or entangling contacts against which petitioners

should be protected, relying on this Court’s Establishment

cases prohibiting such contacts. '* Pet. App. 42a-43a, 45a-50a.

In addition to clarifying the approval standards, the court there noted that

school committees should provide written statements of reasons on disapproval

and the opportunity for an informal hearing.

Thus, this case is hardly “on all fours” with Hague v. Committee For

Industrial Organization, 307 U.S. 496 (1939) (Pet. 26-27), which involved a

town ordinance found to have no objective standards and which reached con-

stitutionally protected acts, the rights of free speech and assembly. /d. at 501,

501, n.1, 516.

'* New Life’s related claim (Pet. 23, 24-25) that the School Committee's

procedure is to be faulted because it is not yet final is likewise wrong. The

record of this case shows that, prior to this litigation, the School Committee

was attempting to shape a procedure which would serve its interests while not

offending religious schools espousing Fundamentalist doctrine. See supra,

page 3, Pet.App. 70a, 74a. The only reason that the procedure remains a

“proposal” at this stage is that these negotiations ended when this suit was

initiated, and the district court subsequently entered an injunction prohibiting

further use of the procedure. See supra, page 8.

* Aguilar v. Felton, 473 U.S. 402, 413 (1985); Roemer v. Board of Public

Works of Maryland, 426 U.S. 736, 765 (1976); Lemon v. Kurtzman, 403 U.S

602, 619 (1971); Wolman, 433 U.S. at 241-244; Meek v. Pittenger, 421 U.S.

4. Finally, petitioners claim (Pet. 30-34) that this Court's

review is necessary because the court of appeals overstepped

the bounds of its appellate role in reviewing the facts of this

case. Petitioners do not dispute that de novo review was war-

ranted in this First Amendment case under Rosenbloom v.

Metromedia, Inc., 403 U.S. 29 (1971), and Bose Corporation

v. Consumers Union of United States, Inc., 466 U.S. 485

(1984), as the court of appeals held. Instead it asserts, without

citation, that the appellate courts may make de novo review

only of “ultimate constitutional facts” '’, but in reviewing “pre-

dicate facts” is bound by the “clearly erroneous” standard of

Rule 52(a) of the Federal Rules of Civil Procedure.

Appellate courts are not limited in the manner suggested by

petitioners. Rather, this Court has held that, in First Amend-

ment cases, appellate courts must make an independent exami-

nation of the whole record.'* Of course, de novo consideration

may only be given to those facts with direct bearing on an

ultimate constitutional question; that is, they must be those

“special facts which have been deemed of constitutional signifi-

cance.” Bose Corporation, 466 U.S. at 505. As this Court

later noted in Miller v. Fenton, 474 U.S. 104, 114-115 (1985),

the fact/law relationship in the First Amendment area is critical.

For this reason:

|w]here, for example, as with proof of actual malice

in First Amendment libel cases, the relevant legal

349, 369-372 (1975), Tilton v. Richardson, 403 U.S. 672, 687-688, reh'g

denied, 404 U.S. 874 (1971).

” Petitioners suggest these would include only such questions as “Is a person

a ‘public figure’ in a defamation case”; or, Does the state have a ‘compelling

interest’ in a free exercise case?” Pet. 32.

* Bose Corporation, 466 U.S. at 499, 508; New York Times Company v.

Sullivan, 376 U.S. 254, 284-286 (1964); Edwards v. South Carolina, 372

U.S. 229, 235 (1963). See also Harte-Hanks Communications, Inc. v. Con-

naughtion, US. . 109 S.Ct. 2678 (1989), Rankin v. McPherson, 483

U.S. 378, reh'g denied, 483 U.S. 1056 (1987).

principle can be given meaning only through its ap-

plication to the particular circumstances of a case,

the Court has been reluctant to give the trier of fact’s

conclusions presumptive force and, in so doing, strip

a federal appellate court of its primary function as

an expositor of law.

474 U.S. at 114. Citing Bose Corporation, 466 U.S. at 503."

Petitioners mention two major areas where they believe the

court of appeals improperly re-decided facts -— (i) the educa-

tional viability of standardized testing to measure academic

progress (Pet. 31,33), and (ii) the number of visits proposed

by the School Committee to observe the school (Pet. 31).”

Each of these areas are unquestionably within the bounds of

“special facts” of constitutional significance. The standardized

testing issues, considered by the court of appeals at Pet. App.

28a-30a, bear directly on the constitutional question of whether

standardized testing constitutes a “less restrictive alternative”

which would fulfill the state’s compelling interest in education.

See Thomas, 450 U.S. at 718; Sherbert, 374 U.S. at 417. See

Maine v. Taylor, 477 U.S. 131 (1986), cited by petitioners (Pet. 34) is

inapplicable, since it was a criminal case involving a Commerce Clause issue.

The court there noted that the “clearly erroneous” standard has always been

applied in such cases. 477 U.S. 145.

” Petitioners also mention (Pet. 32-33) the court of appeals’ treatment of

the academic component of education at the school as “secular”, even though,

they assert, the parties stipulated that the school’s program was thoroughly

religious in all areas. What the stipulation actually says (Pet. 6) is that petitioners

“believe” their “education ministry” is scripturally based. This stipulation of

belief, of course, goes only to whether petitioners hold a sincere religious

belief which would be violated by complying with the School Committee's

regulations, something the court of appaels accepted without question. Pet.

po 14a. The stipulation does not define whether , for purposes of constitutional

law, petitioners carry on secular activities subject to government regulation.

In this realm, the fact that petitioners may see their school program as a

religious rather than secular activity is irrelevant. Bowen, 476 U.S. at 701, 0.6.

also Pet.App. at 26a. Likewise, the nature of the visits con-

templated by the School Committee’s procedure is directly

related to the constitutional question under the Establishment

Clause of whether the procedure will “foster an excessive

government entanglement with religion.” Lemon, 403 U.S. at

612-613.

Furthermore, as with the fact/law distinction generally in

First Amendment cases, what petitioners call factual conflicts

can actually be categorized as differing legal judgments.*' For

instance, on the issue of standardized testing, the district court

itself recognized concerns that standardized testing showed

only what children had learned in the past (and thus was ex

post facto in nature), and not where they had gained that

knowledge or whether the school they attended had the skills

to ensure continued academic progress. However, it made the

legal judgment that, despite these concerns, the state’s compel-

ling interest could be adequately served if a teacher credential

requirement were also imposed (something it ultimately failed

to order). Likewise, it ruled that the state’s interest was limited

to ensuring that children learned, not that schools taught.

Pet.App. 99a, 143a-144a.

The court of appeals, in addressing this issue, did not make

specific findings but rather articulated the numerous concerns

which the record suggested regarding the difficulties of utiliz-

ing a voluntary standardized testing procedure and the educa-

tional questions which arise about standardized testing results.

These questions and concerns are similar to, albeit more exten-

sively considered then, those recognized by the district court.

The court of appeals did not even treat the questions raised as

Indeed, so close was the fact/law relationship in this case that the district

court made virtually identical findings regarding standardized testing and school

visits, among other things, in both its Findings of Facts and Conclusions of

Law. This in itseif is an ample demonstration of why Miller held that appellate

courts must not be bound by the presumptive force of factual findings by the

trial court in First Amendment cases

eee

dispositive. It simply made the differing legal judgment that

the very existence of those standardized testing issues ill-served

the state’s compelling interest because of the obstacles and

administrative difficulties which resolving such questions

would impose. Pet.App. 26a-32a.”

This was also the case with the issue of visits by the School

Committee. Both courts held that the School Committee prop-

osed one or more occasional visits to the school and that

additional visits might be necessary, in lieu of disapproval, to

accommodate the school if its teachers lacked credentials. See

supra, pages 3-4. The court of appeals simply made a different

legal judgment than did the district court, finding that no ex-

cessive entanglement would result.”

Finally, Bose points out that Rule 52(a) itself does not pro-

hibit appellate courts from reviewing the whole record and in

fact permits them to correct “a finding of fact that is predicated

on a misunderstanding of the governing rule of law.” 466 U.S.

at 501. The district court here refused either to employ a

balancing test in considering the state’s compelling interest or

to consider in any way the administrative burden which would

” Petitioners also accuse (Pet. 33) the court of appeals of substituting its

own opinion regarding education practices. Petitioners’ assertion that the court

of appeals concocted evidence is without basis. As the district court’s somewhat

truncated summary (Pet.App. 83a-94a) of the voluminous expert testimony in

the case shows, there was plenty of opinion presented on both sides of this

issue. Without burdening the Court with a detailed review of the record, it

seems clear even from the district court summary that the court of appeals’

questions about standardized testing find adequate basis in the record.

” The court of appeals recognized the district court’s concern that such visits

could be abused by the School Committee, but chose instead to assume that

the procedure would be reasonably carried out. This it was bound to do under

this Court’s prohibition that courts not make constitutional determinations based

on speculative or hypothetical threats. See Laird v. Tatum, 408 U.S. 1, 13-15,

reh' g denied, 409 U.S. 901 (1972), 479 U.S. 911 (1986); International Long-

shoremen's and Warehousemen's Union v. Boyd, 347 U.S. 222, 224 (1954);

United Public Workers of America v. Mitchell, 330 U.S. 75, 89-90 (1947).

be created by the use of petitioners’ standardized testing alter-

native. See supra, pages 6-7. The court of appeals, in contrast,

properly considered these factors (see supra, page 9). Thus, any

new findings it made regarding the relative burdens of standard-

ized testing were necessitated, and correctly so under Rule

52(a), by the district court’s failure to apply the correct legal

standard. In any case, in all areas mentioned in the Petition,

the court of appeals stayed well within the area of review

permitted by this Court.

Conclusion

The petition for a writ of certiorari should be denied.

Respectfully submitted,