Marshall County
[Marshall County Board of Education Letterhead,
dated August 17, 2000]
Enclosed please find a copy of the Alabama State Code: 16-28-1;
16-28-7; and 16-28-8 --- dealing with the definition, purpose and function of
Church Schools in Alabama.
VERIFICATION OF CHURCH AND SCHOOL ASSOCIATION
The Marshall County Board of Education policy for year 2000-2001 and
hereafter, requires that church schools operating in Marshall County, or
enrolling students from Marshall County, verify their association with an
established church, denomination, group of churches or association of churches
as stated in the Code of Alabama.
MEANS OF VERIFICATION
The verification of the Church and School association may be accomplished by a
signed, authorized letter from the church Board, Committee, or the authorized
representative of such church, denomination, group of churches, or association
of churches.
DATE OF FILING WITH BOARD OF EDUCATION
This letter is to be filed with the Marshall County Board of Education by
September 1, 2000.
FAILURE TO PROVIDE SUCH PROOF BY THIS DATE will render void any student
enrollment submitted to this system for the 2000-2001 school year, and will
result in this Board's refusal to validate any future enrollments.
STUDENTS ALREADY ENROLLED
Student enrollments already filed with us will be VALIDATED with the filing of
the school's letter of proof. Otherwise, students enrolled will be notified if
their school has failed to provide proof of legal operation based on Alabama
State Code.
These students, if not then enrolled in a private, public, or
legitimate Church School, will be reported to Juvenile Probation for purposes
of prosecution under the State Compulsory Attendance Law.
Any correspondence relative to this issue should be sent to the
Marshall County Board of Education at the above address to the attention of
Clayton Tuggle.
Phone contact should be to Mr. Tuggle at (256) 582-4192, or Ms. Joan
Noel, Superintendent, at (256) 582-3171. FAXED CORRESPONDENCE may be sent via
(256) 582-3178, to the attention of Clayton Tuggle.
Sincerely yours,
Clayton Tuggle, Attendance Officer, Marshall County Board of Education
[Return to Top] |
[SOUTHEAST LAW INSTITUTE
Letter Head]
A. Eric Johnston, General Counsel
Harry O. Yates, Executive Director
August 22, 2000
Certified mail, return receipt requested.
To:
Nancy Martin, President
Gerry Ledbetter, Vice President
A. L. Bonds, Member
James Watkind, Member
Ed Wright, Member
Joan Noel, Superintendent
Clayton Tuggle, Attendance Officer
Marshall County Board of Education
12380 US Highway 431 South
Guntersville, AL 35976
RE: Marshall County Board of Education Church School Policy
Dear Ladies and Gentlemen:
We have been contacted for legal assistance by church schools in
Marshall County, Alabama. We have your letter of August 17, 2000 which states
a Marshall County Board of Education policy concerning church schools.
Apparently, this letter was sent to various churches, church schools, and/or
parents of students enrolled in church schools.
Though the letter does not state so, an apparent policy has been
recently adopted which states in pertinent part as follows:
"The Marshall County Board of Education policy for year 2000-2001 and
hereafter, *requires that church schools* operating in Marshall County, or
enrolling students from Marshall County, *verify* their association with an
established church, denomination, group of churches or association of churches
as stated in the code of Alabama.
"The verification of the Church and School association may be
accomplished by a signed, authorized letter from a church Board, Committee, or
the authorized representatives of such church, denomination, group of churches
or association of churches."
"This letter is to be filed with the Marshall County Board of
Education by September 1, 2000."
"FAILURE TO PROVIDE SUCH PROOF BY THIS DATE will render void any
student enrollments submitted to this system for the 2000-2001 school year,
and will result in this Board's refusal to validate any future
enrollments."
"STUDENT ENROLLMENTS ALREADY FILED WITH US WILL BE VALIDATED with
the filing of the school's letter of proof. Otherwise, students enrolled will
be notified if *their school has failed to provide proof of legal operation*
based on Alabama State Code."
"These students, if not then enrolled in a private, public or
*legitimate* church school will be reported to Juvenile Probation for purposes
of prosecution under the State Compulsory Attendance Law."
We have emphasized certain words above. [*] This is to call attention
to the operative [procedures?] of your policy. The Board of Education is
requiring church schools to verify what and where they are, that they are
legitimate, and if they do not do so, any student enrolled in such a church
school will be criminally prosecuted (presumably their parents). There is a
serious misunderstanding of applicable law which must be corrected
immediately. The purpose of this letter is to request your recognition of and
compliance with statutory and constitutional law.
Your policy concerns three legal issues.
First, it violates the sanctity of the church by making it answerable
to state authorities as to it's mission.
Second, it seeks to restrict the parents' right of choosing the method
of education for their children.
Third, it does not follow Alabama statutory law.
The Marshall County Board of Education is a political subdivision of
the state of Alabama. As a state entity it is precluded from interfering with
the "fundamental right of churches to decide for themselves, free from
state interference, matters of church government as well as those of faith and
doctrine" Kerdroff v. St. Nicholas Cathedral of Russian Orthodox Church
in North America, 144 US. 94, 116 (1972). This case is representative of the
meaning of the First Amendment to the United States Constitution recognizing
the church's discrete and singular separation from the authority of the state.
Also, American jurisprudence has a long history of permitting parental
selection of educational method, public or non-public. for their children.
Meyer v. Nebraska, 262 US 390 (1923); Pierce v. Society of Sisters of the Holy
Names of Jesus and Mary, 268 US 510 (1925); Wisconsin v. Yoder, 406 US 205
(1972). Recognizing these principles and in light of the growth of non-public
education, specifically church schools, the Alabama Legislature enacted
statutes to protect this educational choice without regulation.
While public education must be provided by the State of Alabama
pursuant to Article 16, 256, 1901 Constitution of Alabama, church schools are
permitted as an educational choice as deemed by Section 16-28-1, 1975 Code of
Alabama. In deference to the First Amendment, church schools are not required
to register with or report to the state (id. section 16-1-11) and they are
recognized as alternative methods of education along with public schools. Id.
Section 16-28-3. Other private forms of education are permitted, but with more
regulation. Id. Section 16-46-5. The purpose of these enactments in 1982 was
to recognize the protected status of religious based education,but to assure
school attendance.
In order to avoid burdening church schools with unconstitutional
regulation, the legislature provided a method by which attendance could be
reported. Parents are accountable for their child's compulsory attendance at
either a public, private or church school. Id. Section 16-28-2.1. Parents are
required to report attendance at a church school, but the church school has no
such requirement. Id. Section 16-28-7. Most importantly, the state avoided
unconstitutional regulations of church schools by enacting Section 16-1-11
which states:
"All private schools or institutions of any kind having a school in
connection therewith, except church schools as defined in Section 16-28-1,
shall register annually on or before October 10th with the Department of
Education and shall report on uniform blanks furnished by the State Department
of Education, giving such statistics as relate to the number of pupils, the
number of instructors, enrollment, attendance, course of study, length of
term, cost of tuition, funds, value of property and the general condition of
the school."
The foregoing sections demonstrate that church schools are not
regulated. There is only a statutory scheme to assure school attendance and
that is required of the parents not the church school. Your recently adopted
policy fails to recognize the intent of the legislature.
More importantly, it fails to recognize constitutional constraints
placed on state authorities. The sanctity of the church, parental rights and
choice of education, are protected by the Free Exercise Clause of the First
Amendment to the United States Constitution and the 1901 Constitution of
Alabama, Amendment 622, the Alabama Religious Freedom Amendment ("ARFA").
The ARFA and the federal constitutional case law specifically require
that if a state agency wishes to burden a religious practice, it may only do
so my demonstrating a compelling interest, and even with such a compelling
interest it must first prove it has accomplished that interest in the least
restrictive or burdensome manner.
Your recently enacted policy establishes an extraordinary burden on the
church and a parent's choice of education method and religious freedom.
Churches that set up schools shall not be questioned and parents who choose
church schools for the education of their children shall not be accosted by
local public school officials requiring things that are unconstititutional and
which exceed the valid statutory scheme. Specifically, your policy requires
churches to verify their existence and their ministries of having church
schools.
It requires a written verification be given to state authorities. This
is an egregious violation of constitutional rights and cannot be countenanced.
These unlawful reports are required by September 1, 2000. As
cooperation attorneys, we are counseling our clients they have no legal
obligation to make these reports. If the Marshal County Board of Education
attempts to enforce this unconstitutional policy, we will file a lawsuit in
the United States District Court for the Northern District of Alabama. The
lawsuit will seek injunctive relief against the enforcement of this policy, as
well as damages against the individual members of the Marshall County Board of
Education and it's officers and agents, and attorney's fees and costs.
During the eighteen years the above cited statutory provisions have
been in existence, there has been little misunderstanding and we are not aware
of any violation of these provisions as purposed and egregious as yours. You
have far exceeded statutory authority and you have unconstitutionally burdened
religious freedom. If you feel there is a compelling interest as recognized by
law to deal with a real and not imagined difficulty, we invite your response.
We are not unreasonable and if the policy is rescinded, we will accept it as a
misunderstanding of your statutory and constitutional authority.
This letter puts you on notice of the unconstitutionality of the policy
and if it is enforced, it must be considered your individual and knowing
enforcement of an unconstitutional policy which will make you individually
responsible.
The duty of your attendance officer is to establish whether children
are in school or truant from school. Each case must be handled on an
individual basis. If you find a student is enrolled in non-public education
and it is a church school, it is also improper for action to be taken against
that student by suggesting invalidity of the church school. Both in the terms
of your existing policy or in the terms of seeking to enforce truancy laws,
you can and will transgress religious freedom which will result in a lawsuit.
Therefore, you should tread very carefully even with individual suspicion.
This letter is a concise summary of some of the more important issues.
It does not address other constitutional concerns, including your
responsibility for threatening criminal actions against citizens and
institutions for exercising their constitutional rights.
While it is necessary this letter be direct and to the point because of
the important principles at stake, it is our sincere hope that your's was a
misunderstanding which will be corrected. We would appreciate the courtesy of
your informing us that the policy has been rescinded. We will accept your
position as an uninformed mistake. We will assist you in addressing any
individual situations with which you have questions, either as to the
enrollment of a particular child or the existence of a particular church or
church school. It is certainly not our desire to see children go uneducated.
We can give you testimony of many occasions where we have discovered this and
have acted to correct it, even without state intervention.
At the same time, the compulsory law provides only that children
between the ages of seven and sixteen years will be enrolled in a public,
private, or church school, or be instructed by private tutor(section 16-28-3,
1975 Code of Alabama), and that the attendance reports be provided to the
state. The state's perogative is limited, even in public education by
constitutional responsibilities. Students do not shed their rights at the
public school house door (Tinker V. Des Moines Independent School District,
393 US 503(1969). Public schools have significant regulations; private schools
have basic regulations; and church schools have minimal regulation. This is
the constitutional and statutory scheme through which any school board must
operate.
We trust this information is beneficial to your understanding. We ask
you rescind the policy and let us know if we can be of assistance to you.
Thank you for your anticipated cooperation.
Sincerely
A Eric Johnston
[Return to Top] |
| [From Marshall County to Southeast Law]
August 30,2000
Dear Mr Johnston
In response to your letter of August 22,2000,concerning the Marshall
County Board of Education Church School Policy, there has indeed been a
misunderstanding. We have not adopted any new policies or amended any existing
policy dealing with children attending church schools. We will be operating
just as we have in the past with no changes whatsoever. We have always made
every attempt to fully comply with all statutory and constitutional
requirements and will continue to do so. We respect the church schools and
will never take any action that would violate their sanctity in any way.
I hope this satisfies your concerns and if we can be of further
assistance , please let us know.
Sincerely
Joan Noel Superintendent
[Return to Top]
|
This Page Revised
05/05/2006 03:08 AM
To report problems with this
site:
Email
|
