Reply Brief — Immediato v. Rye Neck School District

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Supreme Court, U.S.

a a ae)

JUL 17 1996

No. 95-1861 CLERK

In The

Supreme Court of the United States

October Term, 1995

’

DANIEL IMMEDIATO; DIANE IMMEDIATO;

AND EUGENE IMMEDIATO,

Petitioners,

RYE NECK SCHOOL DISTRICT; KATHLEEN D.

GULOTTA; FRANK SPEDAFINO; BEATRICE

CERASOLI; ALAN MANOCHERIAN; JANICE K.

ANDERSON; LIZ PERELSTEIN; PETER J. MUSTICH,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITIONERS’ REPLY BRIEF

ae —

INSTITUTE FOR JUSTICE

LANCE J. Gotko WituiaM H. MELLor

875 Third Avenue Cunt Bouick

8th Floor *Scott G. BULLOCK

New York, New York 1001 Pennsylvania

10022 Avenue, NW

(212) 833-1115 Suite 200 South

Washington, DC 20004

(202) 457-4240

*Counsel of Record

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

ee. 1

CS SR.) 7

SI te cae Sea Oe oo ce pote ek 10

TABLE OF AUTHORITIES

CASEs:

Alfonzo v. Fernandez, 606 N.Y.S.2d 259 (1993),

appeal dismissed without op., 614 N.Y.S.2d 388

So ER re Bene oP sir Cerna Set eee es ee 3, 4

Blackwelder v. Safnauer, 689 F. Supp. 106 (N.D.N.Y.

Wea h ieee uwices ins Gaeeksuce leds hs0 es vivscchnc, 2

Curtis v. School Committee of Falmouth, 652 N.E.2d 580

(1995), cert. denied, 116 S. Ct. 753 (1996)......... 45

Immediato v. Rye Neck School District, 73 F.3d 454

Se IE i 05-5 0 owes ose or soe Pia hee ek ee 7

Meyer v. Nebraska, 262 U.S. 390 (1923)................ 8

Mozert v. Hawkins Cty. Bd. of Educ., 827 F.2d 1058

(6th Cir. 1987), cert. denied, 484 U.S. 1066 (1988) ..... 5

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

Runyon v. McCrary, 427 U.S. 160 (1976)............... 2

I. PARENTAL LIBERTY

In its opposition to the Immediato family’s petition

for a writ of certiorari, respondent Rye Neck School Dis-

trict (“the school district”) seeks an iron-clad rule in

regard to Fourteenth Amendment parental liberty claims:

once a “rational” educational purpose has been estab-

lished for a program, then parents and students have no

recourse but to abide by the edicts of the officials or

suffer the consequences. See Respondents’ Opposition

(“Respondents’ Opp.”) at 5-6, 17. Adoption of rational

basis review for parental liberty clairns would virtually

eliminate the ability of parents to challenge public educa-

tional programs that violate their right to direct their

children’s education. Moreover, such a standard contra-

dicts the special place of the family and parents under the

Constitution.

The Immediatos, a family challenging the ability of

the school district to conscript their son to volunteer, set

forth in their petition the uncertainty in the law and

conflicts in the courts concerning the nature of parental

liberty rights under the Fourteenth Amendment. Petition

at 9-12. They further document that while the law may

currently be uncertain, this Nation’s history and tradi-

tions demand that the right of parents to direct the

upbringing and education of their children be affirmed as

fundamental. Id. at 12-18.

The school district assiduously avoids addressing the

primary issue in the instant case: whether the right of

parents to direct the education of their children is a

fundamental or a non-fundamental right. Perhaps the

school district recognized that it would be difficult to

counter the overwhelming evidence from history and

case law recognizing parental right as one of the primary

foundations of our society. Instead, the school district

devotes almost its entire opposition brief to one of the

most time-honored arguments against the assertion of

parental rights in the public school setting. An acceptance

of petitioners’ argument, it claims, would open up a

Pandora’s Box of unlimited parental and court meddling,

thereby paralyzing the ability of public schools to deter-

mine their policies.

Not only are such arguments alarmist and hyper-

bolic, they evade the central question in the Immediatos’

petition: is their right to direct their son Daniel’s educa-

tion a fundamental right? Government officials can vio-

late parental rights in myriad ways, whether through

overly intrusive regulation of private or home schooling,

or through public school programs that usurp authority

from parents in areas traditionally left to family decision-

making. The school district attempts to avoid these issues

by narrowing the issue to whether parents can challenge

public school curriculum choices. Respondents’ Opp. at

6-8. The school district cites a confiicting body of case law

in support of its argument that parental rights have never

been and cannot be protected in the public school setting.

However, the primary cases upon which the school dis-

trict relies involve either home schooling or private

schools, not public education disputes.?

The primary issue in all recent parental liberty cases,

whether they involve home schooling, private schools, or

1 For instance, Runyon v. McCrary, 427 U.S. 160 (1976), the

main case relied upon by the school district for its contention

that parents cannot challenge a public school program, did not

involve public education at all. Rather, it involved whether

parents had a “constitutional right to provide their children

with private education unfettered by reasonable government

regulation.” Id. at 178 (emphasis added); see also Murphy v.

Arkansas, 852 F.2d 1039 (8th Cir. 1988) (addressing right of

parents to homeschool child without any government

regulation); Blackwelder v. Safnauer, 689 F. Supp. 106, 135

(N.D.N.Y. 1988) (challenge by home schooling parent to state

regulation). Of course, petitioners, unlike the parents in Runyon,

Murphy, and Blackwelder do not argue that the government can

play no role in the education of their children, but rather

challenge an overextension of public school authority into

family matters.

public education, is the proper characterization of paren-

tal liberty rights, an issue upon which there is no clear

guidance from this Court. See Petition 9-12. It is this issue

that must be resolved before turning to the question of

how parental liberty rights should be construed in the

public school setting.?

As set forth in the petition (at 6-9), public schools

have recently become enmeshed in areas traditionally left

to parental authority, and numerous, albeit conflicting,

decisions have been handed down in the past several

years construing parental rights in the public schools. See

also Rutherford Institute (“Rutherford Inst.”) Amicus Brief

in Support of Petition at 9-10.53 The Immediatos recognize

2 Indeed, it is at this point somewhat premature to address

the standards and tests that should be used when parents argue

that public school programs violate their right to direct their

children’s education. First, this Court must decide whether

parents even have a fundamental right to direct their children’s

education, whether it be at home, in a private school, or in the

public schools. Petitioners set forth some of the issues

concerning public school disputes in order to counter the

mischaracterizations made by the court below and the school

district. See Petition at 20-24.

3 In its discussion of recent cases that involve parental

rights in the public school setting, the school district blatantly

mischaracterizes their rulings, claiming that both cases involve

issues outside of educational policy. See, e.g., Curtis v. School

Comm. of Falmouth, 652 N.E.2d 580 (1995), cert. denied, 1116 S.Ct.

753 (1996) and Alfonzo v. Fernandez, 606 N.Y.S:2d 259 (1993),

appeal dismissed without op., 614 N.Y.S.2d 388 (1994);

Respondents’ Opp. at 11, 15. However, the courts in these cases

made clear that they were reviewing the condom distribution

programs as part of a public school educational program, not, as

the school district contends, as a “health” policy. See Curtis, 652

N.E.2d at 584; Alfonzo, 606 N.Y.S. at 265-67. Both condom

distribution programs and mandatory service programs

represent instances of public schools going further than they

have ever gone in the past, intruding into areas traditionally left

that public schools normally have discretion to determine

their curriculum, and in no way wish to interfere with the

ability of public schools to impart necessary skills and

knowledge to their children or any others. /\ccordingly,

the test set forth by the Immediatos for protecting paren-

tal rights in the public school setting provides a workable

balance between public school authority and parental

rights.

The school district misstates these threshold issues

and claims that mere recognition of parental rights in the

public schools would subject each and every aspect of the

public school curriculum to strict scrutiny review.

Respondents’ Opp. 8. However, as set forth in the peti-

tion, before a court would even adopt strict scrutiny to

mandatory service programs or any other public school

requirement, parents must demonstrate that the program

violates their right to direct their children’s education.

Petition at 20-24. First, parents would have to demon-

strate that a program was coercive. Secondly, to violate

parental liberty, a program would have to force young

people to perform actions and participate in programs as

opposed to merely exposing them to objectionable values

and beliefs. Lastly, parents would have to demonstrate, as

required under the common law, that the program from

which the student would be exempt was not an essential

of good citizenship and that the exemption would not

interfere with the administration of the public schools.

Only after parents meet these threshold requirements

to parental authority. Furthermore, both programs have little

connection to the traditional school curriculum; most condom

distribution programs have some relation to the school’s

interest in health education while the school district’s service

program has a tenuous connection to the class, “Managing Your

Future.” See Petition at 3. The school district’s program should

be analyzed under the parental liberty standards set forth in

Curtis, Alfonzo, and other cases involving intrusions by public

schools into family autonomy.

would strict scrutiny and a narrow tailoring test apply to

parental liberty claims.

The school district asserts that both the coercion

requirement and the exposure/action rule provide no

limit on parental rights claims in the public schools. As

the Supreme Judicial Court of Massachusetts recognized

in Curtis, however, the coercion requirement plays an

important role in determining whether public school

authority violates parental rights. Under the rule, only

school programs that provide no outlet for parents and

result in a sanction or expulsion violate parental rights.

Id., 652 N.E.2d at 586.

After declaring the coercion requirement unwork-

able, the school district then marches out a typical

“parade of horribles,” claiming that if petitioners’ argu-

ments were accepted, students could opt out of any edu-

cational requirement, including English and math classes.

Respondents’ Opp. at 8-9. It would be quite difficult to

conjure up a sincere, values-based parental objection to

the traditional public school curriculum. Nevertheless,

even assuming that a parent would object and file a

lawsuit over their child learning how to read or perform

math problems, the school district ignores the common

law rules for parental liberty claims in the public schools:

students cannot be exempt from “the essentials of good

citizenship” and the exemption cannot interfere with the

administration of the public schools. These important

limiting factors would make it extremely difficult for

parents to successfully challenge educational basics.

Similar alarmism pervades the school district’s dis-

cussion of the “exposure/action” rule. In the same man-

ner the school district expands the definition of

“curriculum” to the breaking point, so too does it attempt

to expand the definition of action to include virtually

anything undertaken by students. Even the court in

Mozert v. Hawkins Cty. Bd. of Educ., 827 F.2d 1058, 1064-65

(6th Cir. 1987), cert. denied, 484 U.S. 1066 (1988), however,

distinguished between traditional classroom activity such

as reading books and test taking (which were acceptable)

and true “acts,” such as participating in a school play

(which were not). See Petition at 21-23. Moreover, the

school district. admits that the exposure/action test is

employed regularly in free exercise cases apparently

without destroying the public schools or interfering with

other governmental policies. See Respondents’ Opp. at 15.

When distinguished from the absurd examples provided

by the school district, the exposure/action rule is an

important mechanism to ensure protection of parental

liberty in the public schools, while still allowing school

officials to further their educational interests.

In addition to mischaracterizing the legal standards

in the instant case, the school district throughout its

opposition paints a picture of parents that has little rela-

tion to the vast majority of parents whose children attend

public schools. If the school district were to be believed,

parents are forever waiting to find some excuse to deny

their children the opportunity to learn, and consequently

run to court to challenge every public school program.

This caricature of parenting is unfair and irresponsible.

As noted in the Immediatos’ petition (at 6-9, A-64-69)

and the Rutherford Institute’s Amicus Brief (9-10), current

values disputes between parents and public schools arise

primarily because many school officials insist on

* The Immediatos also documented in their petition the fact

that common law decisions recognized the rights of parents in

the public school setting, and, indeed, these early decisions

served as a basis for this Court’s landmark trilogy of parental

liberty decisions in the 1920s. Petition at 16-17. These decisions

and subsequent cases enforcing parental rights contradict the

school district’s assertion that the remedy sought by petitioners

is unprecedented. The remedy sought by the Immediatos and

other parents is nothing more than t..e recognition of their long-

standing rights at a time when such rights are under attack by

educational officials throughout the nation. See Petition at 6-9;

Rutherford Inst. Amicus Briet at 9-10.

assuming responsibilities that have traditionally been left

to parents. It is therefore imperative that parental rights

be preserved in the public school setting.

The school district also does not address the alterna-

tive to affirming parental rights as fundamental: relegat-

ing this right to non-fundamental status. The school

district argues that if educational programs usurp paren-

tal authority, school officials need only point to a “ratio-

nal” educational objective for the program to be

sustained. Respondents’ Opp. at 17. As set forth in the

petition (at 18-19), adoption of rational basis review for

parental liberty claims will leave parents with no

recourse. Public school officials, under rational basis

review, can adopt virtually any requirement, and parents

cannot object so long as the school district can point to a

reasonable educational objective for the program. The

primacy of the family under our system of law simply

does not allow such an incredibly deferential standard

when public school programs intrude into family matters.

The Second Circuit below declared that in the interest

of judicial self-restraint, it would not “break new ground”

by recognizing parental liberty as a fundamental consti-

tutional right. Immediato v. Rye Neck School District, 73

F.3d 454, 461 (2d Cir. 1996). In fact, the court had it

exactly backward: the school district in the instant case,

like a growing number of school districts, has broken new

ground by intruding into the private realm of the family.

The Immediatos seek only to restore a right central to our

Nation’s history and traditions - the right of parents to

have primary responsibility over the education of their

children. Accordingly, the Immediatos urge this Court to

grant their petition in order to determine whether pdren-

tal liberty rights will be enforceable in modern educa-

tional disputes.

Il. PERSONAL LIBERTY

The school district misstates petitioners’ Fourteenth

Amendment personal liberty claim, suggesting that it

attempts to “create a blanket liberty interest shielding

students from any activities with which students or their

parents disagree... .” Respondents’ Opp. at 19. Peti-

tioners do not seek such broad and open-ended relief.

Rather, they seek only to limit the ability of the school

district to mandate volunteering, an activity that until the

imposition of mandatory service requirements had

always been left to individual and family decision-mak-

ing. Petition at 25-29.

Nowhere does the school district attempt to respond

to petitioners’ argument concerning the centrality of vol-

untary charity to this Nation’s history and traditions. The

school district correctly cites Meyer v. Nebraska, 262 U.S.

390 (1923), as establishing parameters for recognizing

what liberties are protected under the Fourteenth

Amendment, but it ignores Meyer’s crucial holding that

the amendment protects those “privileges long recog-

nized at common law as essential to the orderly pursuit

of happiness by free men.” Id. at 399. As the Immediatos

set forth in their petition, perhaps no privilege or liberty

is more deeply embedded in the common law and in our

traditions than that of individuals deciding whether and

under what circumstances to perform acts of charity.

Petition at 25-29; see also Rutherford Inst. Amicus Brief at

6-7. Such liberties cannot be usurped by coercive public

school programs that require students to serve others in a

manner prescribed by school officials.

The school district also incredibly asserts that

because compulsory education laws have been held to be

constitutional, it can ipso facto require students to perform

charitable service to others. Respondents’ Opp. at 17. In

so doing, the school district refuses to recognize any

constitutional limitation on the power of public school

officials to mandate certain activities in the name of edu-

cation.

One of the Fourteenth Amendment liberties listed in

the Meyer opinion demonstrates the indefensible nature

of the school district’s position. This Court held in Meyer

that individuals have a Fourteenth Amendment right to

“engage in the common occupations of life,” in effect, a

right to seek employment. Given this guarantee, could

public schools require students as a condition of gradua-

tion to obtain out-of-school employment? Such a require-

ment could easily be justified as a “reasonable”

educational program that fostered responsibility and

imparted good work skills to young people. Of course,

the school district justifies its program on exactly the

same grounds. Respondents’ Brief at 1-3; Petition at A-50.

Nevertheless, a program of forced employment would

doubtless be struck down as overextending public school

authority by requiring an activity - employment — that

has traditionally been left to individuals and, if the indi-

vidual is a minor, to families.

Moreover, the Immediatos do not challenge the

school district’s program on the grounds that it is a

particularly onerous or burdensome requirement. See

Respondents’ Opp. at 18. They challenge this unique and

novel requirement because it mandates an activity that

under the common law and the legal traditions of our

country must be left to individual conscience and belief.

Public schools can under the Constitution require

students to gain certain necessary skills and acquire use-

ful knowledge. However, public schools cannot require

students te jo anything school officials think may be

good for them Even more importantly, they cannot

require students to perform an activity like volunteering

that must spring from self-motivation and inspiration,

not from a state-imposed obligation. This Court should

accept the Immediatos’ petition in order to restore the

right of individuals to determine whether and under

what circumstances they will perform service to others.

CONCLUSION

The decision to perform charitable work through ser-

vice to others must be between an individual and his or

her conscience, not between the individual and the State.

The school district should not be allowed to eviscerate

this fundamental principle of our constitutional republic

in pursuit of educational goals, no matter how laudable

the purpose. This Court should grant the Immediatos’

petition in order to determine the respective boundaries

of public school authority and the rights of families.

Respectfully submitted,

Institute for Justice

LaNcE J. Gotko WiiuiamM H. MELLoRr

875 Third Avenue Cunt BoLick

8th Floor *Scott G. BuLLOcK