State v. DeLaBruere

• Decision Date: 27 April 1990
• Docket Number: No. 86-128,86-128
• Citation: 154 Vt. 237,577 A.2d 254
• Parties: , 61 Ed. Law Rep. 984, 8 A.L.R.5th 1097 STATE of Vermont v. Lisette DELABRUERE and Richard DeLaBruere.
• Court: Vermont Supreme Court

Page 254

577 A.2d 254

154 Vt. 237, 61 Ed. Law Rep. 984, 8

A.L.R.5th 1097

STATE of Vermont v. Lisette DELABRUERE and Richard DeLaBruere.

No. 86-128.

Supreme Court of Vermont.

April 27, 1990.

Jeffrey L. Amestoy, Atty. Gen., Elizabeth J. Grant and David Tartter, Asst. Attys. Gen., and Arthur Gallagher and George Kelly, Law Clerks (On the Brief), Montpelier, for plaintiff-appellee.

Gregory S. Clayton of Downs Rachlin & Martin, St. Johnsbury, for defendants-appellants.

Jean A. Swantko, Island Pond, for amicus curiae Church at Island Pond.

Before ALLEN, C.J., and PECK, ¹ GIBSON, DOOLEY and MAHADY, JJ.

DOOLEY, Justice.

This is an interlocutory appeal brought by defendants Richard and Lisette DeLaBruere. The defendants were each charged with one count of violating the compulsory education requirement of 16 V.S.A. §§ 1121 and 1127, for failing to ensure that their son, Luke, attended a school that met the requirements of Vermont law. Before trial, the defendants moved to dismiss the informations on the grounds that: (1) Vermont's compulsory education requirement, as applied to them, violated their right to the free exercise of their religion as guaranteed by the First Amendment to the United States Constitution and Chapter I, Article 3 of the Vermont Constitution; (2) the compulsory education statutes, 16 V.S.A. §§ 1121 and 1127, are unconstitutionally vague; (3) this criminal prosecution violates defendants' right to direct the education of their child; (4) the informations do not charge a crime; (5) the informations fail to charge the essential elements of the crime; and (6) the informations fail to protect defendants against reprosecution. The trial court conducted a hearing on the motion and received evidence relating to defendants' religious beliefs, the nature and conduct of the school which defendants' child attends, and the interests that the State views as paramount in enforcing the statutes involved. The trial court then denied the motion, and this interlocutory appeal followed. We agree with the trial court's decision in denying the motion to dismiss, and, therefore, we remand the case for trial.

Vermont's compulsory education statute requires that:

A person having the control of a child between the ages of seven and sixteen years shall cause the child to attend an approved public school or an approved or reporting private school for the full number of days for which that school is held, unless:

(1) the child is mentally or physically unable so to attend; or

(2) is being furnished with an approved program of home instruction; or

(3) has completed the tenth grade; or

(4) is excused by the superintendent or a majority of the school directors as provided in this chapter.

16 V.S.A. § 1121. ² A parent who fails to comply with § 1121, upon notice of noncompliance from a teacher or principal to a truant officer pursuant to § 1126, may be subjected to a truancy proceeding under § 1127. See State v. LaBarge, 134 Vt. 276, 278-79, 357 A.2d 121, 124 (1976). At issue in this case is the defendants' failure to send their son to an "approved or reporting private school" or to furnish an "approved program of home instruction." The informations charge that on April 3 and 4, 1984 Richard DeLabruere and Lisette DeLabruere, "having control over ... Luke DeLabruere," a child of school age, neglected without legal excuse to send him to a public school, an approved or reporting private school, or an approved program of home instruction, and that the child was not excused by the superintendent or a majority of the school directors.

For the purposes of this case, the relevant instructional option available to the defendants was to send their children to a reporting private school. This is the least burdensome of the options in § 1121, in the sense that the requirements for fulfilling other options would impose additional intrusions into defendants' religious beliefs. For this reason, this opinion focuses almost solely on the reporting school alternative.

A reporting private school is a school that provides instruction outside the home as an alternative to public schools. The requirements for a reporting private school are enumerated in 16 V.S.A. § 165a, ³ which provides, in pertinent part:

(a) On presentation in proper form, the state board or its designee shall accept and file a report under this section. No report may be filed earlier than three months before the school year begins.

(b) A report under this section is in proper form if it contains:

(1) a statement of the hours and days the school will be in session for the remainder of the school year; and (2) a statement of the school's objectives which includes, at minimum, the following:

(A) the school will prepare and maintain attendance records for each pupil enrolled or regularly attending classes;

(B) at least once each year the school will assess each pupil's progress and will maintain records of that assessment;

(C) the school will have teachers and materials sufficient to provide the minimum course of study; and

(D) the school's course of study will include the minimum course of study.

....

(e) Each reporting private school shall provide to the commissioner on October 1 of each year the names and addresses of its enrolled pupils. Within seven days of the termination of a pupil's enrollment, the reporting private school shall notify the commissioner of the name and address of the pupil. The commissioner shall forthwith notify the appropriate school officials as provided in section 1126 of this title.

The school must offer a minimum course of study as set forth in 16 V.S.A. § 906(b). ⁴ That statute provides:

(b) For purposes of this title, the minimum course of study means learning experiences adapted to a pupil's age and ability in the fields of:

(1) Basic communication skills, including reading, writing, and the use of numbers;

(2) Citizenship, history, and government in Vermont and the United States;

(3) Physical education and principles of health including the effects of tobacco, alcoholic drinks, and drugs on the human system and on society;

(4) English, American and other literature; and

(5) The natural sciences. ⁵

A Department of Education official testified that the Department conducts no on-site reviews to ensure that the report is accurate and has "no authority to review whether, in fact, the private reporting school is ... doing what they say they are doing." There is no further intrusion by the State beyond the reporting. The report is not "approved." Instead, it is placed on file as a registration once it is complete. Of the approximately twenty-four private reporting schools registered under the law, the Department had, as of the date of the hearing in this case, sent back two reports for additional information and, in those cases, filed the reports once the additional information was provided. On these points, the trial court found:

20. All that is required of the reporting private school is that it agree to provide the minimum course of study, state its purposes, state the days and hours of school, provide a list of enrollees and agree to advise the state within 7 days after a child leaves the school of the fact a child is leaving.

....

22. Monitoring whether or not the minimum course of study is being provided is left up to the parents and not the state relative to a reporting private school. The state gets assurance the minimum course of study is being followed in a reporting private school when it gets an application with a list of the student children's names. The only time the state would monitor the church'sschool would be if a parent or parents complained about the school.

Defendants are members of a church community known as the Church at Island Pond. The Church maintains a program of education for the children of the Church community, and defendants' son Luke is a student at the Church school and has made progress in his learning. The school provides instruction in English, mathematics, history, composition, spelling, music, natural sciences, typing, hygiene, as well as Church doctrine. Approximately twelve members of the Church, having varying levels of education, act as teachers for approximately fifty-five students. Students attend classes during the school year, and receive more informal instruction during the summer months as well. Instruction is both formal and informal, with scheduled classes at various hours during the week and less formal instruction "during all waking hours." The Church has a detailed education plan that continuously assesses progress of the children.

Church doctrine enjoins its members from sending their children to public school because public school values are inconsistent with their faith and religious values. Defendants' religion requires Church members to rule over their children to teach them the way to be righteous. The Church views the State's compulsory attendance statutes as controlling how the Church should educate the members' children. A Church teacher testified that the purpose of the reporting requirement "has nothing to do with helping us to educate our children ... but is only for the purpose of introducing control of the education of our children into the church." As a matter of religious principle, the Church could not accept State control over the education of its children. The teacher likened the report to be filed for a private reporting school to a report on the Church's religious services and stated that the Church could not file such a report.

The trial court's findings which specifically supported its conclusions that the State's charges against defendants were not invalid on their face were that "[n]either the defendants nor any Island Pond Church members have ever gone to the State Department of Education for approval of a reporting private school or home study program" and that "[n]o Church children are receiving education at a state...