Opposition Brief — Bryant v. Waltham School Committee

Bupreme Court, U.S

FILED

JUL 27 1999

No. 99-13 JDBRICE OF IHE CLERK

In The

Supreme Court of the United States

¢

GEORGE GREELEY, KIM ELIZABETH, GEORGE

NICHOLAS, NYSSA GALE: BRYANT,

Petitioners,

VS.

WALTHAM SCHOOL COMMITTEE,

ASSOCIATE JUSTICE MARGARET S. FEAREY,

Respondents.

+

On Petition For Writ Of Certiorari

To The Supreme Judicial Court Of Massachusetts

+

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

.

Patricia A. Azapi *

JEANNETTE A. McCartTHy

City of Waltham Law Department

119 School Street

Waltham, MA 02451

(781) 893-4040 x 3150

Attorneys for Respondent

Waltham School Committee

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Should this Honorable Court agree to review a deci-

sion of the Supreme Judicial Court of Massachusetts

which affirmed the decision of the juvenile court finding

the Petitioners’ minor children in need of care and protec-

tion regarding educational care, and affirmed the home-

school approval process required by the Respondent

School Committee as being reasonably related to the

state’s legitimate interest in ensuring that all its citizens

are educated, where the decisions are not in conflict with

decisions of the United States Supreme Court or decisions

of the First Circuit Court of Appeals or other decisions of

the Supreme Judicial Court of Massachusetts?

Should this Honorable Court agree to review a ques-

tion of whether the statute of another state should be

applied as a less restrictive measure within the Common-

wealth of Massachusetts?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

TABLE UF CORT RINEO + 003440satneaserlaaeeuneees ii

TABLE OF AUT YI SEEee 6 isexcderessuevaleeueees) iii

STATEMENT OF THER GAGE o6cc ccc cc cnvrescecenaes 1

REASONS WRIT SHOULD BE DENIED............ 4

CONCLUSION 6530 ccenderteesiee eee eee 9

er rn

ili

TABLE OF AUTHORITIES

Page

Cases CiteD:

Attorney General v. Bailey, 386 Mass. 367, 436

PE EC rae cei odbcekecaevel cuweuweser es 6

Brown v. Board of Education, 347 U.S. 483, 74 S.Ct.

Se Oe Mee SP CRUD cece v snd ccsesectceuccécens 6

Bruneile v. Lynn Public Schools, 428 Mass. 512, 702

SE TE Sh ni'ae Conver ae sheyeyoakeuns 6, 7, 8

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

EE EE sn 6.0.ua uae 4s kaveetaesewcecs 6, 7, 8

In re Bert, 705 N.E.2d 625, 429 Mass. 1001 (1999)..... 3

New Life Baptist Church Academy v. Town of East

Longmeadow, 885 F.2d 940 (1st Cir. 1989), cert.

eS ee 6

Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571,

et EE COU) os oaveccceesescdbaceckecaceeses 5

Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438,

Sc seekell caapareesonsscneddsebons 6

Pustell v. Lynn Public Schools, 18 F.3d 50 (1st Cir.

SE CHESGN UN UNEGRG TS 862400000 bide es bee beeeseeeers 6

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62,

68 S.Ct. 972, 92 L.Ed. 1212 (1948).................. 5

White River Lumber Co. v. Arkansas ex rel. Applegate,

279 U.S. 692, 49 S.Ct. 457, reh’g denied, 50 S.Ct.

INL ee cneaatueetne ee sake teusenae ¥eeeeRe dees 4

Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32

SE EP MOPED. vn 54% 64000 uve obec cueeewevesens 4,5

iV

TABLE OF AUTHORITIES - Continued

Page

Statutes CITED:

Mass. Gen. Laws ch. 76, § 1 (1998) ................ 7

Mass. Gen. Laws ch. 76, § 2 (1998) .................. 1

Mass. Gen. Laws ch. 211, § 3 (1998) ................. 3

Mass. Gen. Laws ch. 119, §§ 24, 38 (1999)....... 2, 5, 8

Mass. Gen. Laws ch. 218, § 59 (1999) ................ 8

ConsTITUTIONS CITED:

Massachusetts Constititution .................... 4,5, 8 |

er es OE Deck bn sh bak ecewsnces bie easeneee) 6 |

eee © PPP Tiree rrrren yee cere rere 6

- T[ATEMENT OF THE CASE

Factual Background

George Greeley Bryant and Kim Elizabeth Engler

Bryant are the parents of two minor children, G. and N.

(“children”).

In October 1996, Daniel Doyle, supervisor of atten-

dance for the Waltham Public Schools (Doyle), was

informed by an elementary school principal that the chil-

dren were not enrolled in school.

After an initial investigation, Doyle was informed by

Kim Elizabeth Engler that she educated the children at

home. After the parents were not forthcoming with any

information regarding the home schooling of their chil-

dren, in December 1996, Doyle initiated a criminal com-

plaint pursuant to Massachusetts’ compulsory attendance

statute, Mass. Gen. Laws ch. 76, §§ 1, 2 (1998).

Despite two meetings between the parents and repre-

sentatives of the Respondent School Committee and the

intervention of the presiding justice of the district court,

the parties were unable to reach a resolution of the issues

regarding the education of the children. The sticking

points were the authority of the Respondent School Com-

mittee and Respondent Court regarding the education of

the children; the parents’ refusal to permit assessment

and standardized testing of the educational level and

progress of the children; and the parents’ refusal to pro-

vide information to enable the Respondent School Com-

mittee to assess the level of progress of the children.

The criminal complaint was later reduced to a civil

matter at the request of the Respondent School Commit-

tee and the Commonwealth.

On June 2, 1997, Respondent School Committee filed

a care and protection proceeding pursuant to Mass. Gen.

Laws ch. 119, § 24 (1999) alleging the parents’ refusal to

cooperate in providing information that the children are

receiving, have received or will receive the necessary and

proper educational care. Upon the filing of the care and

protection petition, Respondent School Committee

requested that criminal (converted to civil) complaint be

dismissed.

Procedural Background

Associate Justice Margaret Fearey presided over a -

three-day trial of the matter in the juvenile session of the

Waltham District Court. The parents were represented by

their own attorney and the Court appointed an attorney

for the children. On July 31, 1998, Judge Fearey found the

children in need of care and protection and issued an

order which required the parents to submit home school

plans for the children and have the children indepen-

dently evaluated or enroll the children in a public or

approved private school by September 8, 1998. If the

parents failed to do so, temporary custody of the children

would be transferred to the Department of Social Services

(DSS). Petition for Writ of Certiorari, App. C at 22-51.

The attorney for the parents filed a-motion to allow

the late filing of an appeal of Judge Fearey’s July 31, 1998

order. The Court allowed the motion, but said appeal was

A

subsequently withdrawn by Petitioners’ counsel on

August 18, 1998.

Since there had been no compliance with the July 31,

1998 order of the court, on October 7, 1998, Judge Fearey

granted temporary legal custody to DSS.

On or about October 13, 1998, the parents filed an

emergency interlocutory request to a Single Justice of the

Supreme Judicial Court of Massachusetts to prevent DSS

from exercising custody. Said request was denied.

The parents appealed the October 7, 1998 order to the

Massachusetts Appeals Court, which was denied by a

Single Justice on January 20, 1999. The parties are await-

ing the decision of the Massachusetts Appeals Court

regarding the October 7, 1998 court order.

The parents also filed a petition pursuant to Mass.

Gen. Laws ch. 211, § 3 (1998) with the Supreme Judicial

Court of Massachusetts alleging that Judge Fearey had

committed error in the district court proceedings. Said

petition was denied on December 2, 1998, by a Single

Justice of said Court. Id. App. B at 17-21. On or about

December 16, 1998, the Supreme Judicial Court of Massa-

chusetts denied the parents’ Emergency Motion for Stay

Pending Appeal. On January 26, 1999, the Supreme Judi-

cial Court of Massachusetts denied the parents’ Motion

for Direct Appellate Review. On February 12, 1999, the

Supreme Judicial Court of Massachusetts affirmed the

decision of the Single Justice. In re Bert, 429 Mass.1001,

705 N.E.2d 625 (1999). On March 26, 1999, the Supreme

Judicial Court of Massachusetts denied parents’ Petition

for Rehearing. Petitioners’ Writ at 16.

The care and protection matter is still pending in the

district court before Judge Garinger pending receipt from

the parents of progress reports for each child for the

school year ending June 30, 1999 and for the submission

of home school plans for the 1999-2000 school year, which

have not been received to date. Judge Garinger revoked

the temporary custody order to DSS after the Petitioners

provided testing data to the Repondent School Commit-

tee.

¢

REASONS WRIT SHOULD BE DENIED

A. PETITIONERS DID NOT RAISE QUESTION 1(a)

IN THE LOWER COURT PROCEEDINGS.

Petitioners’ Question 1(a) invokes the right to “freely

possess and exercise their religion per Massachusetts

Constitution, Part I, Article II”. As the findings of Judge

Fearey of the Waltham District Court and the decisions of

Justice Ireland and the Supreme Judicial Court of Massa-

chusetts illustrate, the Petitioners during trial did not

raise the issue of free exercise of religion. Id. at 14-51.

During the lower court proceedings the Petitioners

attached portions of the Massachusetts Declaration of

Rights as the children’s home schooling plan. This illus-

trates that the parents’ reasons are philosophical rather

than religious. A philosophical choice such as this would

not rise to the demands of the Religious Clauses. See

Wisconsin v. Yoder, 406 U.S. 205, 216, 92 S.Ct. 1526, 1533,

32 L.Ed.2d 15 (1972). Hence said question is not properly

before the Court. See White River Lumber Co. v. Arkansas ex

rel. Applegate, 279 U.S. 692, 700 (1929).

/_— ee

B. PETITIONERS HAVE FAILED TO EXHAUST

THEIR APPELLATE REMEDIES.

Petitioners’ Question 1 (e) invokes the right to be

fully heard in his defence by himself, or his council, at his

election per Massachusetts Constitution Part I, Article

XII. Petitioners equate the word “council” to mean mem-

bers of their “Council” who are neither attorneys nor

family members. The district court judges have consis-

tently excluded non- family members and members of the

“Council” from the courtroom due to the fact that juve-

nile proceedings are closed to the public pursuant to

Mass. Gen. Laws ch. 119, § 38 (1999). Petitioners here-

tofore have not appealed this issue to the Massachusetts

Appellate Courts. Question l(e) is not properly before

this Court since Petitioners have not exhausted their

appellate remedies. See Republic Natural Gas Co. v. Okla-

homa, et al., 334 U.S. 62, 72, 68 S.Ct. 972, 978, 92 L.Ed. 1212

(1948).

C. THE PETITION FOR WRIT OF CERTIORARI

DOES NOT PRESENT QUESTIONS OF FIRST

IMPRESSION OR NOVEL QUESTIONS OF LAW

AND THE CASE AT BAR IS NOT DISTINGUISH-

ABLE FROM THE DECISIONS OF THE UNITED

STATES SUPREME COURT, THE FIRST CIRCUIT

COURT OF APPEALS AND THE MASSA-

CHUSETTS SUPREME JUDICIAL COURT.

Both the United States Supreme Court and the

Supreme Judicial Court of Massachusetts have upheld the

rights of parents to home school their children. See Yoder,

406 U.S. at 213, 92 S.Ct. at 1532; Pierce v. Society of Sisters,

268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925);

Pustell v. Lynn Public Schools, 18 F.3d 50 (1st Cir. 1994);

Brunelle v. Lynn Public Schools, 428 Mass. 512, 514, 702

N.E.2d 1182, 1184 (1998); Care and Protection of Charles,

399 Mass. 324, 332-336, 504 N.E.2d 592, 598-600 (1987).

Said right, however is not absolute and must be

balanced against the substantial state interest in the edu-

cation of its citizenry. Brown v. Board of Education, 347 U.S.

483, 493, 74 S.Ct. 686, 691 (1953); New Life Baptist Church

Academy v. Town of East Longmeadow, 885 F.2d 940, 944, 955

(1st Cir. 1989), cert. denied, 494 U.S. 1006 (1990); Brunelle,

428 Mass. at 514, 702 N.E. 2d at 1184 (1998); Care and

Protection of Charles, 399 Mass. at 335, 504 N.E. 2d at 599.

The family is not beyond regulation. See Prince v. Massa-

chusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442 (1944); Attor-

ney General v. Bailey, 436 N.E.2d 139, 146 (1982).

However, the Petitioners refuse to acknowledge that

they are subject to such requirements. This is not a ques-

tion of interpretation of law, but rather the issue here is

their refusal to acknowledge the existence of such law.

While the Petitioners claim jurisdiction under the

Ninth and Tenth Amendments and Article IV § 4 of the

United States Constitution, there is nothing in neither the

record nor the decisions below that support any federal

questions presented under said sections.

D. THE PROCEDURES FOR THE OVERSIGHT OF

HOME SCHOOLING UNDER THE MASSA-

CHUSETTS CASES AND STATUTES ARE REA-

SONABLE MEASURES TO GUARANTEE THE

PROTECTION OF THE RIGHT OF CHILDREN TO

AN EDUCATION AND ENSURE THAT THE COM-

PELLING ST/TE’S INTEREST IN THE EDUCA-

TION OF ITS CITIZENRY IS MET.

Massachusetts’ compulsory attendance statutes pro-

vide that a child between the ages of 6-16 attend a public

school, an approved private school or otherwise be

instructed in a manner approved in advance by the

superintendent or school committee. Mass. Gen. Laws ch.

76, § 1 (1998).

The statutory exception authorizes home schooling.

In doing so, it protects the basic constitutional right of

parents to direct the education of their child. See Brunelle,

428 Mass. at 514, 702 N.E. 2d at 1184.

Care and Protection of Charles indicates that school

committees must have access to textbooks, workbooks

and instructional aids used by the children and may

properly require periodic standardized testing or periodic

progress reports. Care and Protection of Charles, 399 Mass.

at 338-341, 504 N.E. 2d at 601, 602. The tenets of Charles

were recently upheld by the Supreme Judicial Court of

Massachusetts in Brunelle v. Lynn Public Schools. Id, 428

Mass. at 514, 703 N.E. 2d 1184.

Respondent School Committee sought progress

reports and standardized tests from Petitioners. Respon-

dent School Committee has never sought home visits.

Petit’ »ners contend that the children’s educational mate-

rials are private property and not to be disclosed to

Respondent School Committee.

Almost all states require periodic assessment of

home-schooled students’ academic progress. Brunelle, 428

Mass. at 516, 702 N.E. 2d at 1185, n. 7. Further, Mass. Gen.

Laws ch. 119 § 24 (1999), independent of Care and Protec-

tion of Charles, empowers the divisions of the juvenile

court to commit a child to custody of DSS or make other

appropriate order on the petition of any person alleging

that a child is in need of care and protection. Juvenile

courts in Massachusetts also have broad equity powers

by virtue of Mass. Gen. Laws ch. 218 § 59 (1999). The

juvenile court did not commit error when it adjudicated

Petitioners’ children in need of care and protection and

granted temporary custody to DSS.

The petitioners have failed to demonstrate that

Massachusetts statutes and opinions are inapplicable to

them or that the case at bar is distinguishable from the

decisions of First Circuit Court of Appeals or from the

decisions of the United States Supreme Court.

\

E. PETITIONER HAS FAILED TO DEMONSTATE

THAT A SUBSTANTIAL FEDERAL QUESTION

HAS BEEN RAISED OR DECIDED BELOW

REGARDING THE APPLICATION OF THE REFER-

ENCED ALASKA STATUTE

Petitioners assert that Alaska statute 14.30.010 cannot

be ignored without derogating the Massachusetts Consti- :

tution. Petitioners have failed to demonstrate that a sub- i

stantial federal question is involved. Further the lower |

La

courts never addressed the issue of the constitutionality

or unconstitutionality of said Alaska statute.

*

CONCLUSION

For these reasons, Respondent Waltham School Com-

mittee prays that this Court decline to grant the writ of

certiorari.

Dated: July 27, 1999

Respectfully submitted,

Patricia A. Azapi*

JEANNETTE A. McCartHy

City of WALTHAM LAW DEPARTMENT

119 School Street

Waltham, MA 02451

(781) 893-4040 x 3150

*Counsel of Record