Conscientious Opposition

Alternatives to Public Education Under Kentucky Law

by Daniel Goldberg

Kentucky Home School Congress

May 14,1989

“Nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed.”

With these words, the framers of Kentucky’s Constitution of 1850 gave parents of Kentucky a strong guarantee of freedom of choice in education, perhaps stronger than exists in any other state. The challenge is to ensure that this theoretical protection remains an everyday reality.

This pamphlet describes the legal framework in which the debate about private schooling in Kentucky will take place. With this knowledge, home schoolers and others seeking alternatives to public education will be prepared to influence the outcome of that debate.

Sources of Law

Not all laws are created equal; rather, they are arranged in hierarchies -— from constitution to statute to regulation, from federal to state to local. A consistent rule of legal analysis is that a law of lower source may not be interpreted in a way that places it in conflict with a law of higher source. A state administrative regulation, for example, may not exceed the authority given the administrative agency by its enabling state statute. A state statute, in turn, may not offend the state Constitution. No state or local law, not even a state constitutional provision, may violate a federal law. And no law, regardless of the source, may violate the United States constitution, our highest source of civil law.

Laws also tend to be arranged from the general to the specific. Constitutions, the most general laws, establish the form of government and provide basic freedoms. Statutes, laws enacted at the federal level by Congress or at the state level by the General Assembly, create, fund and direct the work of administrative agencies, define criminal offenses, and provide many of the working principles which agencies and the courts must follow. Administrative regulations, adopted by the various agencies, fill in the details; they are the rules by which the agency carries out the work assigned to it under the statutory law.

Constitutional Protections

Free Exercise Clause

The Free Exercise Clause of the First Amendment of the United States Constitution prohibits the state from enforcing laws that unnecessarily limit religious practices.

Due Process Clause

The Due Process Clause of the Fourteenth Amendment of the United States Constitution guarantees that, in matters of fundamental liberty, the State’s laws must be narrowly drawn. A state law, or an act taken under state law, may be declared invalid in court in the following circumstances: (1) if the law affects a fundamental individual right and there is no compelling state interest to justify curtailing that right; of (2) if the state has a compelling reason to curtail a fundamental right, but it has failed to select the least restrictive means of doing so.

Conscientious Opposition Clause

Section 5 of the Kentucky Constitution, quoted above, contains a principle of free conscience in matters of schooling. This principle, sometimes referred to as the Beckner Amendment or, herein, as the Conscientious Opposition Clause, is more specific than either the Free Exercise Clause or the Due Process Clause, and therefore offers an opportunity for greater protection. The Kentucky Supreme Court, in the 1979 case of Kentucky State Board for Elementary and Secondary Education v. Rudasill, 589 S.W.2d 877, gave life and meaning to this principle of Conscientious Opposition.

The Rudasill Case

According to the Kentucky Supreme Court in Rudasill, the compelling interest underlying the state’s compulsory education law is to education children to become good citizens, to prepare them “to intelligently exercise the right of suffrage.” This state interest may not be enforced at the expense of conscience or at the expense of diversity.

At a minimum, the Conscientious Opposition Clause prohibits the state from requiring certification of non-public school teachers, and from requiring the use of state-approved texts. To require state certification of all teachers or to prescribe textbooks used in non-public schools “is but to require that the same hay be fed in the field as is fed in the barn. Section 5 protects a diversified diet.”

While foreclosing two avenues of regulation -— teachers and texts — the Court in Rudasill left other avenues of regulation open. Even under Rudasill, the state may enact laws “to monitor the work of private and parochial schools ... by an appropriate standardized testing program,” and it may require private and parochial schools “to comply with reasonable health, fire and safety standards as conditions of approval.”

A final area of regulation left open under Rudasill is in the Court’s definition of a “school.” According to the Court, the legislature may require attendance at a “formal school,” “a place for systematic instruction,” as opposed to “education in the home” or education “at the hearthside.”

The constitutional safeguards discussed above are not self-enforcing. They become effective only to the extent that legislators and others keep them in mind as laws are being created. Or, they may be enforced by the courts if a conflict arises.

Perhaps the greatest long-term challenge facing home school families will be to convince the Kentucky Supreme Court that its interpretation of the Beckner Amendment on the issue of education at home is in error, or, alternatively, to convince the General Assembly that the idea of non-public schooling includes education at the family hearth.

Statutory Law

While constitutional provisions may become important in certain contexts, compulsory school attendance is a subject governed primarily by state statutes — state, as opposed to federal; statutes, as opposed to regulations or laws of other sources. As presently enforced, the laws governing private schools in Kentucky are sufficiently relaxed so as not to constitute a serious barrier to most home schools.

As a starting point, state law requires that each child, from his sixth until his sixteenth birthday, must attend public school. KRS 159.010(1). An exception has been created for every child who is “enrolled and in regular attendance in a private, parochial or church school.” KRS 159.030(1)(b).

At one time, an exempt private or parochial school was one that was “approved” by the State Board of Education. In 1984, however, the General Assembly took away the authority of the state board to approve private schools. A private school may now “voluntarily comply” with state standards and thereby become “certified,” but state approval is no longer required in order to satisfy the exemption from compulsory attendance.” KRS 156.160.

Currently, private, non-certified schools operate in a relative vacuum. There are a few laws that describe what schools must do, but there is no agency specifically authorized to enforce those laws.

The following requirements apply to private school:

Each school must notify the local board of education of those students in attendance.

KRS 159.030.The notification should include the name, age, and place of residence of each pupil and “any other facts that the superintendent may require to facilitate carrying out the laws relating to compulsory attendance and employment of children.”

KRS 159.160.The notice (or report to the superintendent) must be made within the first two weeks of the beginning of school each year.

KRS 159.160.Schools must be taught in the English language and must offer instruction in the several branches of study required to be taught in the public schools.

KRS 158.080.These required branches of study appear to include reading, writing, spelling, grammar, library skills, mathematics, science, language arts and social studies. (Not all subjects are required in every grade.) See KRS 158.665. Schools must operate for a minimum term of 175 instructional days per year.

KRS 158.080. Attendance at private and parochial schools should be kept in a register provided by the

State Board of Education.

KRS 159.040. Attendance and scholarship reports should be made in the same manner as is required by law or regulation for public schools.

KRS 159.040.Private and parochial schools are open at all times for inspection by directors of pupil personnel and officials of the Department of Education.

KRS 159.040 Under current law, the local superintendent or director of pupil personnel (truant officer) could make life difficult for a home school family by making unannounced inspections or by overzealous enforcement of existing requirements. At present, the state Department of Education appears to have adopted a policy of not interfering with or questioning the practices of any family that registers as a school. Local circumstances may vary.

While home school families may disagree on strategies, on these natural and fundamental principles we agree: that the family hearth, more than any public institution, is the place where character and intelligence are formed; that it is the duty and privilege of parents, in the exercise of conscience, to direct the education of their children; that schools may be public (controlled by the state) or private (controlled by persons other than the state); diversity and the free exercise of conscience are the qualities that make private education a worthwhile alternative to public education; that in public schools alone, not private, may the state prescribe the qualifications of teachers, the curriculum or texts to be used, or the times, places or methods of instruction; that parents, no less than the state can be relied upon to provide their children a healthy, safe, supportive and challenging environment in which to grow and learn.

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