State v. Whisner

• Decision Date: 28 July 1976
• Docket Number: No. 75-746,75-746
• Citation: 351 N.E.2d 750,47 Ohio St.2d 181
• Parties: , 1 O.O.3d 105 The STATE of Ohio, Appellee, v. WHISNER * et al., Appellants.
• Court: Ohio Supreme Court

Page 181

47 Ohio St.2d 181

351 N.E.2d 750, 1 O.O.3d 105

The STATE of Ohio, Appellee, v. WHISNER ^* et al., Appellants.

No. 75-746.

Supreme Court of Ohio.

July 28, 1976.

Syllabus by the Court

1. Where the State Board of Education, pursuant to statutory directive, promulgates certain 'minimum standards' relating to the operation of all schools, including non-public schools, in this state, and, in the context of a criminal trial pursuant to R.C. 3321.38, an objection is interposed thereto by defendants, parents of students attending a non-public school, upon the basis that, as applied to them, the 'minimum standards' infringe upon their right to the free exercise of religion guaranteed them by the First Amendment to the Constitution of the United States, and by Section 7, Article I of the Ohio Constitution, such objection will be sustained where:

(a) Upon the entire record of the cause, the trier of facts concludes that the religious beliefs of the defendants are 'truly held;'

(b) The defendants adequately demonstrate the manner in which the 'minimum standards' are, or may be, applied to them in such a way as to infringe upon their federal and Ohio constitutional right to the free exercise of religion; and

(c) The state fails to establish an interest of sufficient magnitude to override the claim of violation of the right to freely exercise religious beliefs and also fails to demonstrate that its interest cannot otherwise be served.

2. Where the 'minimum standards' promulgated by the State Board of Education are so comprehensive in scope and effect as to eradicate the distinction between public and non-public education, application of these 'minimum standards' to defendants, parents of children attending a nonpublic religious school, abrogates their fundamental freedom, protected by the liberty clause of the Fourteenth Amendment to the Constitution of the United States, to direct the upbringing and education, secular or religious, of their children.

On December, 3, 1973, appellants, 12 parents of school-age children, were indicted by a grand jury of Darke County, Ohio, for failure to send their children to school in accordance with R.C. 3321.38, which provides, in pertinent part:

'(a) No parent, guardian, or other person having care of a child of compulsory school age shall violate section 3321.01, 3321.03, 3321.04, 3321.07, 3321.10, 3321.19, 3321.20, or 3331.14 of the Revised Code. * * *'

Inter alia, appellants were charged with violation of R.C. 3321.03, which provides, in pertinent part:

'Except as provided in this section, the parent, guardian, or other person having the care of a child of compulsory school age which child has not been determined to be incapable of profiting substantially by further instruction shall cause such child to attend a school which conforms to the minimum standards prescribed by the state board of education for the full time the school attended is in session, or shall otherwise cause him to be instructed in accordance with law. * * *'

The cause was tried to the court on May 7 and 8, 1974.

At the beginning of the trial, the state and the defendants stipulated to the following:

'Number 1. That the Darke County Court of Common Pleas, Darke County, Ohio, has jurisdiction and venue over this cause, and defendants herein.

'Number 2. That the defendants are the parents of child, or children of compulsory school age; and that said parents are not sending the child, or children in the public school in the district wherein the parents or defendants reside.

'Number 3. That the defendants are the parents of a child, or children of compulsory school age, and that said parents are sending the child, or children to the Tabernacle Christian School.

'Number 4. That the children, or child of the defendants were not excused under any conditions from attendance or absence from the school in the district wherein the parents defendants reside by any lawful authority.'

The testimony received at trial revealed that appellants' children were attending the Tabernacle Christian School, a non-public religious elementary school located in Bradford, Ohio. The state alleged that the Tabernacle Christian School did not conform to the 'minimum standards' promulgated by the State Board of Education pursuant to the express statutory command of R.C. 3301.07, which standards are made applicable to the schools in operation in this state by R.C. 3321.03, and are contained within a publication entitled Minimum Standards for Ohio Elementary Schools, Revised 1970.

With respect to the Tabernacle Christian School, one of the appellants, Reverend Levi Whisner, testified that he had called the office of the State Board of Education in early October 1973, in an attempt to arrange a meeting for the purpose of discussing the continued operation of the school, which at that time was in its embryonic stage of development, having first opened its doors on September 4, 1973. A meeting was scheduled for October 5, 1973, but Rev. Whisner was unable to keep that appointment. Subsequently, on January 22, 1974, a meeting was held in the office of the State Board of Education in Columbus, at which time Rev. Whisner, accompanied by his attorney, discussed the Tabernacle Christian School with Mr. John E. Brown, Director of the Division of Elementary and Secondary Education.

On January 28, 1974, Rev. Whisner wrote a letter to Brown reviewing the meeting of January 22. The letter, which was received into evidence as plaintiff's exhibit E. concluded:

'Upon receiving a favorable response to this letter, we will submit to the Department of Education, on or before April 1, 1974, a plan showing the total school organization and program. Such plan will contain information and commitments on our part corresponding to those contained in your publication 'Minimum Standards for Ohio Elementary Schools,' so far as is consistent with our religious beliefs.'

The Department of Education did not respond to Rev. Whisner's letter, nor did Rev. Whisner, on behalf of the Tabernacle Christian School, submit 'a plan showing the total school organization and program' to the State Board of Education. Apparently, no further attempts were made by either the State Board of Education or by the appellants to resolve the situation concerning the operation of the Tabernacle Christian School through the administrative procedures specifically devised for such purpose.

In the presentation of its case, the state called the aforementioned Mr. John E. Brown to the witness stand. Brown testified that the functions of the Department of Education include the process of approval and chartering of schools, and the development of standards for elementary and secondary schools. With respect to the development of standards, Brown stated that representatives of both public and non-public, including religious, schools participated in the formulation of the 'minimum standards' with which all schools in this state must comply in order to begin, or continue, operation.

Brown testified further, on direct examination, that the publication Minimum Standards for Ohio Elementary Schools is divided into two sections, entitled (1) Minimum Standards for Elementary Schools of the state of Ohio, and (2) Interpretative and Explanatory Information. According to Brown, the former section of the publication, comprising the first 15 pages, contains the 'minimum standards' with which all elementary schools, whether public or non-public, must comply, while the latter section is merely explanatory of the former, and is intended only to aid school administrators in developing programs which comport with the required 'minimum standards.'

With respect to the Tabernacle Christian School, Brown testified that no application for a charter had been filed with the State Board of Education by the school, and, consequently, the school was not chartered. He stated that although it is difficult for a new school to meet the 'minimum standards,' it is possible to do so, and it has been done. He related the procedure to be followed by a new non-tax supported school in order to obtain a charter, as follows:

'1. Prior approval of a plan submitted for the total school organization and program shall have been granted by the Superintendent of Public Instruction.

'2. An enrollment of fifteen pupils in the first grade level or organization shall be minimum for the initial year of operation.

'3. There shall be an annual increase of enrollment until the minimum requirements of Section D have been met (60 students).

'4. In self-contained classroom situations, which are not designated as nongraded or multi-aged groups, not more than two grade levels shall be combined.

'5. The governing body of the school shall be responsible for initiating an application for approval.

'6. A charter shall be granted after an inspection which determines that all standards have been met.'

On cross-examination, Brown attempted to explain the difference between the 'minimum standards' and the 'interpretative and explanatory information' sections of the aforementioned publication. He testified, in this regard, as follows:

The first part of the book up to that point are the standards we have gone through-there, chapter 19, and have been filed with the Secretary of State.

'The interpretative sections are the guidelines to direct schools and the Department in interpreting the first part of the book.

'The second part is not a part of the file with the Secretary of State, though they are there in compliance.

'Q. Are they not a part of the minimum standards?

'A. Yes, they are.'

Shortly thereafter followed this exchange between counsel for the appellants, and Brown, with regard to the 'interpretative and explanatory information' section of the aforesaid publication, which is itself divided into two parts (level one and level two):

'Q. * * * how do you differentiate, how does the department differentiate between...