State v. Schmidt, 86-263

• Decision Date: 25 March 1987
• Docket Number: No. 86-263,86-263
• Citation: 29 Ohio St.3d 32,29 OBR 383,505 N.E.2d 627
• Parties: , 38 Ed. Law Rep. 1137, 29 O.B.R. 383 The STATE of Ohio, Appellee, v. SCHMIDT et al., Appellants.
• Court: Ohio Supreme Court

Page 32

29 Ohio St.3d 32

505 N.E.2d 627, 38 Ed. Law Rep. 1137, 29 O.B.R. 383

The STATE of Ohio, Appellee, v. SCHMIDT et al., Appellants.

No. 86-263.

Supreme Court of Ohio.

March 25, 1987.

Syllabus by the Court

The requirement of R.C. 3321.04(A)(2) that application be made to the superintendent of schools for approval of a home education program reasonably furthers the state's interest in the education of its citizens and does not infringe upon the free exercise of religion. Such requirement is neither vague nor an improper delegation of authority.

On October 12, 1984, Roger M. Stiller, Superintendent of the Columbiana Exempted Village School District, filed two complaints charging defendants-appellants, Richard and Pamela Schmidt, with failing to send their daughter, Sara, a minor of compulsory school age, to a school or special education program conforming to the minimum standards established by the State Board of Education, in violation of R.C. 3321.04 and 3321.38(A). Each complaint contained twenty counts, alleging that appellants failed to send Sara to a school on twenty successive school days between September 17 and October 12, 1984.

Richard and Pamela Schmidt are "born-again Christians," and believe that it is their undelegable duty as parents to educate Sara themselves. Appellants undertook to teach Sara at home with assistance from a correspondence currriculum they obtained from Winchester Christian Academy, a private, non-chartered school located in Columbus. Appellants enrolled Sara as a student at Winchester Christian Academy, but she has never attended classes there.

Upon becoming aware that Sara was of compulsory school age but was not attending a school, Superintendent Stiller informed appellants that they were required by Ohio law to obtain his approval for their home education program. Appellants did not seek Stiller's approval because they felt that their religious beliefs not only required them to educate Sara themselves, but also forbade them from seeking Stiller's permission to do so.

The matter came to trial on February 28, 1985, before the Columbiana County Court of Common Pleas, Juvenile Division, and on April 8, 1985, the court entered judgment finding both appellants guilty as charged. The court of appeals affirmed.

The cause is now before this court upon the allowance of a motion to certify the record.

David Tobin, Pros. Atty., and Melissa Byers, East Liverpool, for appellee.

Michael P. Farris, Washington, D.C. and Stephen P. Leiby, Cuyahoga Falls, for appellants.

HERBERT R. BROWN, Justice.

The central issue raised is whether the requirement under R.C. 3321.04(A)(2), ¹ that parents must seek the approval of the school board superintendent for their home education program in order to obtain an excuse from the compulsory education laws, infringes upon the religious freedom of appellants. ²

Appellants acknowledge, as they must, that the state has a compelling interest in the education of its citizens. ³ Nevertheless, appellants argue that R.C. 3321.04(A)(2) violates the First Amendment to the United States Constitution. ⁴ Appellants claim an impermissible infringement of their religious beliefs because the approval requirement is not the "least restrictive means" that Ohio could have employed to achieve its interests.

In State v. Whisner (1976), 47 Ohio St.2d 181, 1 O.O.3d 105, 351 N.E.2d 750, this court applied a three-prong test to determine whether the "minimum standards" promulgated by the State Board of Education impermissibly infringed upon the right of parents of children attending a non-public school to the free exercise of religion. (See, also, State, ex rel. Nagle, v. Olin [1980], 64 Ohio St.2d 341, 18 O.O.3d 503, 415 N.E.2d 279.)

As applied to the facts of the instant case, that test can be summarized as follows:

(1) Are the religious beliefs truly held? ⁵

(2) Has it been shown that the approval requirement of R.C. 3321.04(A)(2) infringes upon appellants' constitutional right to the free exercise of religion?

(3) If both (1) and (2) have been satisfied by appellants, has the state demonstrated that its compelling interest in the education of its citizens cannot reasonably be achieved by means that would impose a lesser infringement upon appellants' right to the free exercise of religion?

If appellants satisfy the first two prongs of this test, and if the state fails to satisfy the third prong, then appellants must prevail. Whisner, supra.

We find no indication in the record that appellants' claimed religious beliefs are not sincere. Thus appellants meet this threshold test.

However, appellants fail to demonstrate that the approval requirement of R.C. 3321.04(A)(2) infringes upon their right to the free exercise of religion.

Unlike the compulsory attendance statutes of most states, ⁶ R.C. 3321.04 specifically provides a home education exception. It acknowledges the right of parents to educate their children at home, and guards against the abuse of that right by requiring parents to obtain the approval of the superintendent for their home education programs. Despite the invitation from Superintendent Stiller to discuss their plan for educating Sara at home, appellants failed to submit a proposal requesting his approval.

This court will not speculate as to what result the superintendent would have reached had appellants submitted a proposal. We will not presume that the superintendent's actions would have been unconstitutional. Yee Bow v. Cleveland (1919), 99 Ohio St. 269, 273, 124 N.E. 132, 133, 12 A.L.R. 1424, 1427. ⁷

The case sub judice does not fall within the reach of Wisconsin v. Yoder (1972), 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 wherein the United States Supreme Court enunciated a standard consistent with our holdings in Whisner and Olin, supra. Here, as distinguished from Yoder, ⁸ appellants have made a unilateral decision to ignore the plain requirement that an application for their home education proposal be submitted.

Without an application by appellants and without a proposal to the superintendent, there is no way to balance appellants' right to the free exercise of their religion in respect to Sara's education against the state's interest, albeit by least restrictive means, in her education. ⁹ We therefore do not reach the third prong of the test in Whisner.

We hold that the requirement under R.C. 3321.04(A)(2), that parents must seek the approval of the superintendent for their home education program in order to obtain an excuse from the compulsory attendance laws, reasonably furthers the state's interest in the education of its citizens and does not infringe upon the free exercise of religion. ¹⁰

Nor are we persuaded by appellants' contention that there is an improper delegation of authority in the requirement that superintendents throughout Ohio make the initial determination as to who is qualified to give home instruction. The statute gives the superintendent an intelligible principle for his guidance and the desirable flexibility to accommodate home education programs that parents such as appellants and those similarly situated may wish to pursue. An arbitrary and capricious refusal by the superintendent can be measured and corrected in the appeal procedure provided by R.C. 3331.08. See Blue Cross v. Ratchford (1980), 64 Ohio St.2d 256, 259-260, 18 O.O.3d 450, 452, 416 N.E.2d 614, 617-618. ¹¹

Finally, the requirement, under R.C. 3321.04(A)(2), that the approval of the superintendent must be obtained before removing a child from a school to a home education program is not vague. Appellants knew that the law required them to request Superintendent Stiller's approval in order to educate Sara at home.

Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

MOYER, C.J., and SWEENEY, HOLMES and DOUGLAS, JJ., concur.

LOCHER and BROGAN, JJ., separately dissent.

BROGAN, J., of the Second Appellate District, sitting for WRIGHT, J.

LOCHER, Justice, dissenting.

I believe that the determination to be made by the school superintendent as to who is "qualified to teach" pursuant to R.C. 3321.04(A)(2) is an improper delegation of authority contrary to the basic values underlying the principles of due process. Therefore, I respectfully dissent.

R.C. 3321.04(A)(2) provides in pertinent part:

"(A) The superintendent of schools of the city, exempted village, or county school district in which the child resides may excuse him from attendance for any part of the remainder of the current school year upon satisfactory showing of either of the following facts:

" * * *

"(2) That he is being instructed at home by a person qualified to teach the branches in which instruction is required * * *. In each such case the issuing superintendent shall file in his office, with a copy of the excuse, papers showing how * * * the qualifications of the person instructing the child at home were determined. * * * " (Emphasis added.)

This statute affords no guidance to superintendents limiting their discretion in determining who is "qualified to teach." The decision of the superintendent may rest on ad hoc and subjective standards. What must be the educational background of the teachers--must they be state-certified or does "qualified" allow less than that?

Today's decision forces the Schmidts to subject their sincerely held religious beliefs to the judgment of a school superintendent who is free to make the determination without guidance. I fail to see any language in the statute which provides the "intelligible principle" for decision-making espoused by the majority.

Even the majority recognizes that an arbitrary and capricious refusal can be made by a superintendent. However, it believes that such an unjust refusal can be simply corrected by an appeal to the juvenile court pursuant to R.C. 3331.08. What guidelines are provided for the juvenile court to review the qualifications of a "home school" teacher? This court ...