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9/3/2013 - September 2013 SLI Educational Update - Alabama State Departmetn of Education Attempts to Regulate Church Schools

AN EDUCATIONAL UPDATE FROM

THE SOUTHEAST LAW INSTITUTE™, INC. 

To:                  SLI Supporters   

Date:               September 2013   

From:              A. Eric Johnston 

Re:                  Alabama State Department of Education Attempts to Regulate Church Schools 

            In the 1960’s, United States Supreme Court opinions removed prayer and Bible reading from public schools.  This served as a catalyst for churches to begin operating schools, K-12, but maintaining the religious emphasis.  A number were started in Alabama.  However, in the late 1970’s and into the 1980’s, public school authorities in various states attempted regulation of these church schools.  This became so heated that in the Midwest, a pastor was jailed and his church doors padlocked for refusing to comply with requests of the state to regulate that church’s school. 

            In 1979, threats were made by the Alabama State Department of Education (“ALSDE”) to four separate church schools.  Essentially, the ALSDE threatened punitive actions if the church groups did not comply with their regulatory requests.  This resulted in the Alabama Legislature amending statutes in the Alabama Code to exempt church schools from any state regulation.  See, §§ 16-46-1(3), 3(a)(3), etcetera, 1975 Code of Alabama.  The only requirement that remained for a church school was to indirectly, through the parent, report that a child was enrolled in a church school in order to satisfy attendance requirements.  The understanding then and until now has been that the school is a ministry of the church, just like any other ministry of the church.  It is not subject to state regulation at any level.   

            After 33 years of peaceful coexistence and cooperation, the State Superintendent of Education, Thomas R. Bice, sent out a memorandum on June 4, 2013 saying there would be meetings held at the ALSDE in Montgomery on July 11 and 12 to discuss updating procedures and regulations of nonpublic schools.  The memo also said, “Attendance at the meeting is strongly encouraged by private and church/parochial school personnel.”  SLI responded to this memo on June 14, 2013.  We wrote Dr. Bice and the ALSDE’s General Counsel and suggested that this must be an oversight, because the ALSDE has no regulatory authority over church schools.  However, if it was not an oversight, we went on to explain the constitutional and statutory basis for protection of church schools.  In the end, we informed them that the state should take no action in derogation of these laws. 

            Following these letters, there were several communications and discussions between ALSDE personnel and SLI.  We were informed that no action would be taken at the July meetings.  Though they had no authority, any attempted changes in the law would necessarily be according to the procedural requirements for amending the Alabama Administrative Code (“ACC”), which would include a period for public comment and then a hearing.  We were assured that would give us plenty of time to talk later in the summer.  

            However, at the July meetings, ALSDE explained new regulations would be adopted.  In disregard for their earlier commitments, they secretly planned to adopt emergency regulations at a July Alabama State Board of Education meeting.  This was discovered by a school board member and the Governor intervened, prohibiting the action.  Those regulations would have been in effect for 120 days, with the permanent regulations to be later adopted through the public comment and hearing process mentioned above.  However, by adopting emergency regulations, this would have immediately required church schools to comply with state requirements for the beginning of the 2013-14 school year.  The proposals were to amend the ACC to provide, among other things, that church schools would be required to notify the state, provide information on their legal existence, sectarian beliefs, what they taught, etcetera.  A $500 annual exemption fee for “certification” would be required. 

            When the church school statutes were passed in 1980, these provided no rulemaking authority for the ALSDE, or any other state agency.  In order to adopt regulations in the ACC, an agency of government must be delegated the authority by a statute.  Additionally, parents have constitutional rights to choose the method of education they feel best for their children.  This is for both public and nonpublic schools.  Church schools, being ministries of churches, enjoy free exercise of religion protections under the First Amendment to the United States Constitution and the Alabama Religious Freedom Amendment.  The latter specifically says that the state shall take no action to burden religious activity without having a compelling interest to do so and then achieve it in the least restrictive way.  After 33 years of successful operation of church schools in Alabama, there is no conceivable reason that the ALSDE would now have a compelling interest to begin regulating church schools. 

            As a result of these activities, Superintendant Bice issued a later memo to legislators saying they would abandon their earlier attempts to regulate through the ACC, but would expect to do so through the legislative process.  Even so, the ALSDE has still tried to meet with us for the purpose of discussing what regulations might be accomplished.  In light of the fact that they do not have legal authority to make rules, nor the constitutional authority to regulate, we asked them to be more specific about what they want to do, before we consider a colloquy.  They have not responded.  At this time, we do not know their motives or goals.  Whatever they are, it is not good and we intend to do everything necessary to stop this unconstitutional and unlawful encroachment upon religious freedom. 

            In 1980, we responded appropriately and immediately to threats of regulation of church schools by the ALSDE.  We will do so again in 2013 and most probably in the 2014 legislative session.  If lawsuits become necessary, those will be filed.   

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