Thomas v. Allegany County Bd. of Ed.

• Decision Date: 07 April 1982
• Docket Number: No. 656,656
• Citation: 51 Md.App. 312,443 A.2d 622
• Parties: , 3 Ed. Law Rep. 670 Lowell THOMAS, et al. v. ALLEGANY COUNTY BOARD OF EDUCATION, et al.
• Court: Court of Special Appeals of Maryland

Page 312

51 Md.App. 312

443 A.2d 622, 3 Ed. Law Rep. 670

Lowell THOMAS, et al. v. ALLEGANY COUNTY BOARD OF EDUCATION, et al.

No. 656.

Court of Special Appeals of Maryland.

April 7, 1982.

Robert H. Reinhart, Cumberland, with whom was Robert A. Destro, Gen. Counsel, Milwaukee, on the brief, for appellants.

Armand M. Pannone, Jr., Cumberland, for appellees.

Argued before THOMPSON, COUCH ^* and WEANT, JJ.

THOMPSON, Judge.

The appellants, academically qualified students in private schools, contend that as residents of Allegany County they are entitled to participate in any program or instructural classes offered by the Allegany County Board of Education, appellee. ¹ The trial judge, James S. Getty, sitting in the Circuit Court for Allegany County, rejected their contention and so do we.

Since 1976 the Board has funded an All-County Music Program, which encompasses elementary, junior and high school bands, choral and orchestral programs. The portion of the program at issue is the All-County High School Band which, after allowing both public and private school participation in 1978 and 1979, limited its participants in 1980 to those enrolled in the Allegany County Public School System. Members of the band are chosen after being auditioned, in preparation for which each student prepares his selection of music. They perform individually before music professors from neighboring universities who are paid by the Board. The professors analyze each student's performance, suggest techniques for improvement and ultimately rate the student on a scale from 1 to 6. A list of students is then compiled for each instrument and the band directors and music teachers of schools in the county select students with the highest ratings for participation in the band that year. Academic credit is given for participation. Students who participate in the competition are said to enjoy a number of benefits, including the experience of performing under pressure and in a competitive atmosphere, enhanced resume value by citing involvement in the band, and finally, exposure to individuals who can provide information as to college level music programs. At the time of trial, all appellants were enrolled in a parochial school, and would have been eligible to audition for the All-County Music Program had they been full-time students in the public school system. Three of the students participated in the 1981 auditions for the band pursuant to the trial court's preliminary order, received the highest rating in the competition, and would have been seated as members of the band if the prior policies had been continued. They had participated in the program during the time they attended public elementary school and in 1978 and 1979 when the program was open to private school students. Testimony of each of the three students indicated his desire to participate in the All-County Band, but each emphasized that he had originally enrolled in the Bishop Walsh High School because of its superior academic program and that he did not intend to transfer to the public school system to participate in the band.

Of the eleven high schools in Allegany County, two are private schools. One is Bishop Walsh High School, a Catholic school in Cumberland, and the other is Calvary Christian Academy, a Protestant school in Cresaptown. The appellants in this action attend Bishop Walsh High School. In recent years, the music curriculum of that school has expanded to include private music lessons, music classes and a jazz ensemble. In 1977 a marching band was formed. Each of the students participates in one or more of these programs.

The only exception to the School Board's practice of excluding private school students from educational programs offered on the premises of the public schools is with respect to vocational education. Dr. Wayne Hill, Superintendent of Schools, testified that in the case of vocational training, equal opportunity for students who attend private schools is required by the Federal Government as long as satisfactory schedules can be established between the private and public school. See, 20 U.S.C. §§ 2332, 2401(b)2.

I Free Exercise of Religion

The appellants assert that the appellee's refusal to permit the students at Bishop Walsh High School to participate in the All County Music Program violates their rights under the free exercise clause guaranteed by the First Amendment of the Constitution of the United States. More specifically, they contend that the Board, having decided to offer the music program to public school students, must extend the benefits of such program to private school students as well. Although parents have a constitutionally protected right to direct the religious training of their children, including their education in religious-affiliated schools, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), this right to attend parochial school does not in our view necessarily establish a concomitant right for these children to remain eligible for participation in public school programs.

The free exercise clause bars "governmental regulation of religious beliefs as such, or interference with the dissemination of religious ideas." Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). To meet the constitutional mandates established by the free exercise clause, the application of a rule either (1) must not interfere with, burden, or deny the free exercise of a legitimate religious belief or (2) must be justified by a state interest of sufficient magnitude to override the interest claiming protection under the free exercise clause. Wisconsin v. Yoder, supra, 406 U.S. at 214, 92 S.Ct. at 1532. The decision to confine participation in the All-County Band to public school students does not infringe upon the private school students' freedom of religion. The rule neither prohibits a parent from enrolling the child in a private school, nor deters the students from following the practices of their faith. The rule merely prevents a child from reaping the benefits of a public school activity once the constitutional right to a private school education is exercised. The impact of the rule on freedom of religion is minimal. As we have stated each of the appellants testified that he chose to attend Bishop Walsh in view of its superior academic program. Further, each indicated that he did not intend to transfer to the public school system merely to become eligible to participate in the All-County Band.

On the other side of the scale, it appears that the Board has a legitimate interest in confining public school programs to public students. Although the administrative impact of a decision mandating the participation of the private students into this public school program appears to us to be trivial, the precedent as it affects the broader spectrum of school administration is of a far more deleterious nature. With the opening of such "Pandora's box", there would be no device to preclude, for example, a private school having difficulty securing a qualified chemistry teacher from unilaterally deciding to transport the entire student body to a nearby public school for their chemistry education. The potential for administrative disruption is obvious. Thus, while we may agree that little if any administrative hardship would inure to the Board in permitting these three students to participate in the All-County Band, it is not for this Court to hold that the Board must admit them, in view of the broader inplications involved. We think the school administrators and not courts, should decide how much administrative disruption is too much. See Adams v. County Commissioners, 180 Md. 550, 26 A.2d 377 (1942).

II Equal Protection

The appellants further allege that the Board's rule violates the equal protection guarantees of the State and Federal Constitutions. The right allegedly infringed is that of private school students to be treated similarly to public school students with respect to participation in extra-curricular public school programs. ²

Generally, where private schools have been excluded from participation in public school extra-curricular activities, courts have applied a rational relationship test to determine whether the private school students' constitutional rights have been infringed upon. See Denis J. O'Connell High School v. Virginia High School, 581 F.2d 81 (4th Cir. 1978); Valencia v. Blue Hen Conference, 476 F.Supp. 809 (1979). The appellants urge, however, that inasmuch as the only private schools affected by the Board decision are religious oriented schools, this ruling should be reviewed under...