State v. Delabruere
Annotate this Case
NOTICE: This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 86-128
State of Vermont Supreme Court
v. On Appeal from
District Court of Vermont,
Lisette DeLaBruere and Unit No. 3, Caledonia Circuit
Richard DeLaBruere
March Term, 1988
George F. Ellison, J.
Jeffrey L. Amestoy, Attorney General, Elizabeth J. Grant and David Tartter,
Assistant Attorneys General, and Arthur Gallagher and George Kelly, Law
Clerks (On the Brief), Montpelier, for plaintiff-appellee
Gregory S. Clayton of Downs Rachlin & Martin, St. Johnsbury, for defendants-
appellants
Jean A. Swantko, Island Pond, for amicus curiae Church at Island Pond
PRESENT: Allen, C.J., Peck, (FN1) Gibson, Dooley and Mahady, JJ.
DOOLEY, J. This is an interlocutory appeal brought by defendants
Richard and Lisette DeLaBruere. The defendants were each charged with one
count of violating the compulsory education requirement of 16 V.S.A. {{
1121 and 1127, for failing to ensure that their son, Luke, attended a school
that met the requirements of Vermont law. Before trial, the defendants
moved to dismiss the informations on the grounds that: (1) Vermont's com-
pulsory education requirement, as applied to them, violated their right to
the free exercise of their religion as guaranteed by the First Amendment to
the United States Constitution and Chapter I, Article 3 of the Vermont
Constitution; (2) the compulsory education statutes, 16 V.S.A. {{ 1121 and
1127, are unconstitutionally vague; (3) this criminal prosecution violates
defendants' right to direct the education of their child; (4) the inform-
ations do not charge a crime; (5) the informations fail to charge the
essential elements of the crime; and (6) the informations fail to protect
defendants against reprosecution. The trial court conducted a hearing on
the motion and received evidence relating to defendants' religious beliefs,
the nature and conduct of the school which defendants' child attends, and
the interests that the State views as paramount in enforcing the statutes
involved. The trial court then denied the motion, and this interlocutory
appeal followed. We agree with the trial court's decision in denying the
motion to dismiss, and, therefore, we remand the case for trial.
Vermont's compulsory education statute requires that:
A person having the control of a child between the
ages of seven and sixteen years shall cause the child to
attend an approved public school or an approved or re-
porting private school for the full number of days for
which that school is held, unless:
(1) the child is mentally or physically unable so
to attend; or
(2) is being furnished with an approved program of
home instruction; or
(3) has completed the tenth grade; or
(4) is excused by the superintendent or a majority
of the school directors as provided in this chapter.
16 V.S.A. { 1121. (FN2) A parent who fails to comply with { 1121, upon notice of
noncompliance from a teacher or principal to a truant officer pursuant to {
1126, may be subjected to a truancy proceeding under { 1127. See State v.
LaBarge, 134 Vt. 276, 278-79, 357 A.2d 121, 124 (1976). At issue in this
case is the defendants' failure to send their son to an "approved or report-
ing private school" or to furnish an "approved program of home instruction."
The informations charge that on April 3 and 4, 1984 Richard DeLabruere and
Lisette DeLabruere, "having control over . . . Luke DeLabruere," a child of
school age, neglected without legal excuse to send him to a public school,
an approved or reporting private school, or an approved program of home in-
struction, and that the child was not excused by the superintendent or a ma-
jority of the school directors.
For the purposes of this case, the relevant instructional option
available to the defendants was to send their children to a reporting
private school. This is the least burdensome of the options in { 1121, in
the sense that the requirements for fulfilling other options would impose
additional intrusions into defendants' religious beliefs. For this reason,
this opinion focuses almost solely on the reporting school alternative.
A reporting private school is a school that provides instruction out-
side the home as an alternative to public schools. The requirements for a
reporting private school are enumerated in 16 V.S.A. { 165a, (FN3) which
provides, in pertinent part:
(a) On presentation in proper form, the state board
or its designee shall accept and file a report under
this section. No report may be filed earlier than three
months before the school year begins.
(b) A report under this section is in proper form if
it contains:
(1) a statement of the hours and days the school
will be in session for the remainder of the school year;
and
(2) a statement of the school's objectives which
includes, at minimum, the following:
(A) the school will prepare and maintain
attendance records for each pupil enrolled or
regularly attending classes;
(B) at least once each year the school
will assess each pupil's progress and will
maintain records of that assessment;
(C) the school will have teachers and
materials sufficient to provide the minimum
course of study; and
(D) the school's course of study will
include the minimum course of study.
. . . .
(e) Each reporting private school shall provide to
the commissioner on October 1 of each year the names and
addresses of its enrolled pupils. Within seven days of
the termination of a pupil's enrollment, the reporting
private school shall notify the commissioner of the name
and address of the pupil. The commissioner shall forth-
with notify the appropriate school officials as provided
in section 1126 of his title.
The school must offer a minimum course of study as set forth in 16
V.S.A. { 906(b). (FN4) That statute provides:
(b) For purposes of this title, the minimum course of
study means learning experiences adapted to a pupil's
age and ability in the fields of:
(1) Basic communication skills, including reading,
writing, and the use of numbers;
(2) Citizenship, history, and government in Vermont
and the United States;
(3) Physical education and principles of health in-
cluding the effects of tobacco, alcoholic drinks, and
drugs on the human system and on society;
(4) English, American and other literature; and
(5) The natural sciences. (FN5)
A Department of Education official testified that the Department
conducts no on-site reviews to ensure that the report is accurate and has
"no authority to review whether, in fact, the private reporting school is
. . . doing what they say they are doing." There is no further intrusion by
the State beyond the reporting. The report is not "approved." Instead, it
is placed on file as a registration once it is complete. Of the approxi-
mately twenty-four private reporting schools registered under the law, the
Department had, as of the date of the hearing in this case, sent back two
reports for additional information and, in those cases, filed the reports
once the additional information was provided. On these points, the trial
court found:
20. All that is required of the reporting private
school is that it agree to provide the minimum course of
study, state its purposes, state the days and hours of
school, provide a list of enrollees and agree to advise
the state within 7 days after a child leaves the school
of the fact a child is leaving.
. . . .
22. Monitoring whether or not the minimum course of
study is being provided is left up to the parents and
not the state relative to a reporting private school.
The state gets assurance the minimum course of study is
being followed in a reporting private school when it
gets an application with a list of the student child-
ren's names. The only time the state would monitor the
church's school would be if a parent or parents com-
plained about the school.
Defendants are members of a church community known as the Church at
Island Pond. The Church maintains a program of education for the children
of the Church community, and defendants' son Luke is a student at the
Church school and has made progress in his learning. The school provides
instruction in English, mathematics, history, composition, spelling, music,
natural sciences, typing, hygiene, as well as Church doctrine. Approxi-
mately twelve members of the Church, having varying levels of education, act
as teachers for approximately fifty-five students. Students attend classes
during the school year, and receive more informal instruction during the
summer months as well. Instruction is both formal and informal, with
scheduled classes at various hours during the week and less formal instruc-
tion "during all waking hours." The Church has a detailed education plan
that continuously assesses progress of the children.
Church doctrine enjoins its members from sending their children to
public school because public school values are inconsistent with their faith
and religious values. Defendants' religion requires Church members to rule
over their children to teach them the way to be righteous. The Church views
the State's compulsory attendance statutes as controlling how the Church
should educate the members' children. A Church teacher testified that the
purpose of the reporting requirement "has nothing to do with helping us to
educate our children . . . but is only for the purpose of introducing
control of the education of our children into the church." As a matter of
religious principle, the Church could not accept State control over the
education of its children. The teacher likened the report to be filed for a
private reporting school to a report on the Church's religious services and
stated that the Church could not file such a report.
The trial court's findings which specifically supported its conclusions
that the State's charges against defendants were not invalid on their face
were that "[n]either the defendants nor any Island Pond Church members have
ever gone to the State Department of Education for approval of a reporting
private school or home study program" and that "[n]o Church children are
receiving education at a state approved educational home study or reporting
private school program." On the other hand, the trial court found that it
does not violate the religious beliefs of members of the Church to reveal
the educational program of the children and the names of "some of the
children." The court also found that the Church will not give the State the
names of members' children in the school generally because of its perception
of the State's motives, but that the State's responsibility to be certain
that children obtain a minimum education is not offensive to Church
doctrine.
The trial court found that the school satisfies the minimum course of
study requirement, but concluded that, given noncompliance with {{ 1121 and
1127, the State's pending action did not violate defendants' rights under
the United States or Vermont Constitutions. The specific issues are set
forth in the court's order granting permission to take an interlocutory
appeal under V.R.A.P. 5:
1. Does the criminal prosecution of the Defendants under
the Vermont Compulsory Education Statute violate their
freedom of religion as guaranteed under the United
States and Vermont Constitutions?
2. Is the Vermont Compulsory Education Statute an uncon-
stitutionally vague criminal statute, in violation of
the United States and Vermont Constitutions?
3. Does the criminal prosecution of the Defendants under
the Vermont Compulsory Education Statute violate their
right to substantive due process as guaranteed by the
United States Constitution?
4. Does the two-day absence from school alleged in the
informations filed against the Defendants constitute a
crime under the Vermont Compulsory Education Statute?
5. Are the informations filed against the Defendants
defective because they fail to allege the essential
elements of the crime of violating the Vermont Com-
pulsory Education Statute?
6. Are the informations filed against the Defendants
defective under the United States and Vermont Consti-
tutions because they fail to protect Defendants from
reprosecution for the same offense?
The trial court answered questions 1, 2, 3, 5, and 6 in the negative, and
question 4 in the affirmative. Although our reasoning may differ from that
of the trial court on some of the questions, our answers to the questions
are the same as those of the trial court.
I.
Defendants on appeal here concede that the Church school has not re-
ported within the meaning of 16 V.S.A. { 165a, and acknowledge that they
have failed to send their son to a reporting school, as required by { 1121.
Defendants contend, however, that the Church is entitled to an exemption
from application of the statutory reporting requirements, based on the free
exercise guarantees of the First Amendment to the United States Constitu-
tion (FN6) and Chapter I, Article 3 of the Vermont Constitution, (FN7) and that
they are thereby immune from truancy prosecution under { 1127. In response,
the State asserts that the reporting requirements do not unduly burden their
right to free exercise of religion, and that the defendants are liable for
prosecution for their failure to comply with { 1127.
Although defendants have relied primarily on the Vermont Constitution,
we start our analysis with the First Amendment to the United States Consti-
tution, both because the state and federal cases interpreting this provision
represent a prodigious body of precedent and because use of common auth-
ority gives this Court a basis on which to compare the decisions from other
courts. We will then address defendants' arguments that the Vermont
Constitution affords them such greater protection that it requires that this
truancy proceeding be dismissed.
The Free Exercise Clause of the First Amendment protects both freedom
to believe and the freedom to act. The freedom to believe is an absolute
one, but the freedom to act is necessarily limited. Wisconsin v. Yoder, 406 U.S. 205, 220 (1972). As the Supreme Court said in Yoder:
[A] State's interest in universal education, however
highly we rank it, is not totally free from a balancing
process when it impinges on fundamental rights and in-
terests, such as those specifically protected by the
Free Exercise Clause of the First Amendment, and the
traditional interest of parents with respect to the
religious upbringing of their children so long as they,
in the words of Pierce [v. Society of Sisters, 268 U.S. 510, 535 (1925)], "prepare [them] for additional obliga-
tions."
Id. at 214. The distinction between belief and actions, though signi-
ficant, does not control the outcome of the case under the First Amendment
as "there are areas of conduct protected by the Free Exercise Clause of the
First Amendment and thus beyond the power of the State to control even under
regulations of general applicability." Id. at 220. (FN8) See also Hobbie v.
Unemployment Appeals Commission of Florida, 480 U.S. 136, 144 (1987);
Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 719 (1981); Sherbert v. Verner, 374 U.S. 398, 406-09 (1963); and
Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940).
The current legal test to determine whether the Free Exercise Clause of
the First Amendment is violated by requirements of state law is often
presented as comprising four elements:
(1) Whether plaintiffs' challenge is motivated by a
sincerely held religious belief;
(2) Whether plaintiffs' free exercise of religion is
burdened by the challenged government action;
(3) Whether the challenged government conduct serves a
compelling state interest; and, if so
(4) Whether the government has proven that the chal-
lenged conduct is essential to achieving, or is the
least restrictive means of achieving, that compelling
state interest.
Lyng v. Northwest Indian Cemetery Protective Association, 108 S. Ct. 1319,
1324 (1988); Hobbie v. Unemployment Appeals Commission, 480 U.S. at 138-44;
Blount v. Department of Educational & Cultural Services, 551 A.2d 1377, 1379
(Me. 1988); Choper, Defining "Religion" in the First Amendment, 1982 U. Ill.
L. Rev. 579; Developments in the Law -- Religion and the State, 100 Harv. L.
Rev. 1606, 1703-40 (l987). In this case, we need give no further consider-
ation to the first element of the test; the State concedes that defendants'
failure to enroll their child in a reporting private school and the
Church's failure to report to the State are motivated by a sincerely held
religious belief.
A.
In a First Amendment case, the party asserting the violation has the
initial burden of proving that the state requirement or restriction imposes
a burden on religious belief or practice. Abington School District v.
Schempp, 374 U.S. 203, 223 (1963). (FN9) Defendants rely on the coercive nature
of the government regulation on the education of their child to demonstrate
a burden on their religious belief. The situation is, in their view, akin
to that in Thomas v. Review Board of the Indiana Employment Security
Division, 450 U.S. at 717-18:
Where the state conditions receipt of an important bene-
fit upon conduct proscribed by a religious faith . . .
thereby putting substantial pressure on an adherent to
modify his behavior and to violate his beliefs, a burden
upon religion exists. While the compulsion may be indi-
rect, the infringement upon free exercise is nonetheless
substantial.
As in Thomas, the burden here is indirect, in the sense that the purpose of
the Vermont reporting statute is secular and is not intended to have direct
impact on religious belief or action.
The situation differs from Thomas since defendants are not affirm-
atively seeking a benefit and indeed are attempting to educate their child
with as little contact as possible with the government. If anything, the
difference strengthens their burden argument since they face a criminal
sanction for doing what they assert their religion requires. See State v.
Shaver, 294 N.W.2d 883, 892 (N.D. 1980). Consequently, though the govern-
ment does not seek to impose a direct burden, and defendants do not seek a
benefit, their dilemma falls squarely within the doctrine of indirect com-
pulsion. See North Valley Baptist Church v. McMahon, 696 F. Supp. 518, 525
(E.D. Cal. 1988) (California preschool licensure requirements burden the
religious expression of operators who believe that licensing involves the
authority of the state over Jesus Christ in operation of the church itself).
The trial court concluded that the reporting requirements burdened
defendants' religious belief "to a slight degree." In a very similar case,
the Eighth Circuit Court of Appeals characterized the burden as "very
minimal." Fellowship Baptist Church v. Benton, 815 F.2d 485, 491 (8th Cir.
1987). The State goes further and argues that whatever the theoretical
burden, the defendants failed to establish that compliance with the law
interferes with the exercise of their religious beliefs. See State v.
Andrews, 65 Haw. 289, 291-92, 651 P.2d 473, 475 (1982); Roloff Evangelistic
Enterprises v. State, 556 S.W.2d 856, 858 (Tex. Civ. App. 1977).
We agree there are gaps in defendants' evidence on the nature of the
burden. Putting their evidence in the best light, defendants appear to
state the elements of the interference with their religious belief as
follows: (1) education of Church children is part of their religious
practice, and it is not possible to separate out a secular education
component from the religious practice; (2) the act of reporting information
to the State is an acceptance that the State controls some aspect of the
education provided by the Church; and (3) State control of the Church's
religious practices is directly contrary to the primacy of God over man and
cannot be accepted. From the State's perspective this is a symbolic, but
not actual, burden because the act of reporting does not equal control.
Further, there is no actual conflict over the content of the State's
regulation since it is agreed that the Church school meets the minimum
course of study contained in 16 V.S.A. { 906(b) and the State does not
regulate course content. The trial court found, however, that the
reluctance of the Church to specify the names of the children attending the
Church school appears to arise from mistrust of State motives rather than
religious convictions, especially since the Church recognizes the State's
right to insure that children receive some form of education.
While there is force to the State's position here, we note that vir-
tually every conflict between a state and parents who claim the right to be
free of state control of the education of their children because of an
interference with religious beliefs involves the fact that state regulation
exists at all and not the content of the regulation. See, e.g., New Life
Baptist Church Academy v. Town of East Longmeadow, 885 F.2d 940, 943 (1st
Cir. 1989); Blount v. Department of Education & Cultural Services, 551 A.2d
at 1378; Blackwelder v. Safnauer, 689 F. Supp. 106, 130 (N.D.N.Y. 1988).
Indeed, in many cases, the court found that the parents or the religious
school had met all requirements of state regulation but refused to seek and
accept the official determination of compliance. See, e.g., State v. Faith
Baptist Church, 207 Neb. 802, 817, 301 N.W.2d 571, 580 (1981). Although
there are no doubt major differences in the religious beliefs involved,
virtually every case of conflict is grounded on the inability of the
religious adherents to separate secular education from religious education.
We are sensitive to the "most delicate question" before us and wish to
take care not to judge the degree of defendants' beliefs. Wisconsin v.
Yoder, 406 U.S. at 215-16. Accordingly, we resist the State's invitation
to hold there is no burden because our view of what is a necessary conflict
differs from that of defendants. We must accept on face value that the
symbols of state regulation are as religiously important to defendants as
the actuality of state control over their religious education.
B.
Having determined that defendants have shown a burden on their free
exercise right, we do not necessarily conclude that defendants must be
exempted from the statutes at issue. The State may justify the burden on
religious belief or practice by demonstrating a compelling state interest.(FN10)
Thomas, 450 U.S. at 718. However, it is incumbent upon the Court to
"searchingly examine" the State's interest and the detrimental effect that
might result from exempting defendants from the requirements of state law.
Yoder, 406 U.S. at 221.
The factors to be included in weighing a state's compelling interest
are necessarily broad:
The essence of all that has been said and written on the
subject is that only those interests of the highest
order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion.
Yoder, 406 U.S. at 215; see also Thomas v. Review Board of the Indiana
Employment Security Division, 450 U.S. at 718. But there can be little
doubt today that the interest of a state in public education is among its
most compelling considerations:
[E]ducation is perhaps the most important function of
state and local governments. . . . It is the very
foundation of good citizenship. . . . In these days, it
is doubtful that any child may reasonably be expected to
succeed in life . . . denied the opportunity of an
education.
Brown v. Board of Education, 347 U.S. 483, 493 (1954). Nor can there be any
doubt that the state's paramount interest in education extends to private
schools:
No question is raised concerning the power of the State
reasonably to regulate all schools, to inspect, super-
vise and examine them, their teachers and pupils; to
require that all children of proper age attend some
school, that teachers shall be of good moral character
and patriotic disposition, that certain studies plainly
essential to good citizenship must be taught, and that
nothing be taught which is manifestly inimical to the
public welfare.
Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925).
A state's compelling interest in these and similar values has been
overwhelmingly sustained in cases both in state and federal courts. See
Murphy v. State of Arkansas, 852 F.2d 1039, 1041 (8th Cir. 1988) (Home
School Act, requiring submission of information to the state, did not
violate Free Exercise Clause); North Valley Baptist Church v. McMahon, 696 F. Supp. at 526-27 (regulation of preschool supported by compelling state
interest which is "particularly acute"); Blount, 551 A.2d at 1381 (prior
approval by state of home-schooling upheld under United States and Maine
Constitutions); Sheridan Road Baptist Church v. Department of Education, 426
Mich. 462, 486, 396 N.W.2d 373, 383 (1986) (curriculum and teacher certifi-
cation requirements did not violate the religion clauses of First
Amendment); Faith Baptist Church, 207 Neb. at 811-12, 301 N.W.2d at 577
(reporting and teacher certification requirements upheld in suit to enjoin
operation of non-complying religious school); State v. Rivinius, 328 N.W.2d 220, 227-29 (N.D. 1982) (upholding truancy conviction, based on validity of
teacher certification requirement as applied to parochial school).
The overriding importance of education in Vermont has never been in
doubt. As of July, 1777, ten of the colonial states had adopted new consti-
tutions, and of these only three had included provision for education:
Vermont, however, had framed into her fundamental law
provision for the education of all, -- an education
graded, progressive and complete; or primary, academic
and university. And this, too, at a time when boys of
sixteen were compelled to bear arms, and when the ques-
tion whether there would ever be any State of Vermont
was still an open one.
A.D. Barber, Vermont as a Leader in Educational Progress, address before
the Vermont Historical Society, 1896, in "Essays in the Social and Economic
History of Vermont" 303 (1943).
When we look at the specific areas where the State has chosen to regu-
late private schools, the interests of the State are equally compelling.
The testimony of the Deputy Commissioner of Education supported the State's
argument that it has a compelling interest in the minimum course of study,
which is designed to require the minimum education necessary "[s]o the state
in a sense can sustain itself . . .," and see that each child receives the
skills necessary to function as an adult; so that "no child comes out in
society without having those skills, those tools so that they can survive
from day-to-day," and that each is equipped to choose where to work and how
to live. The trial court reasonably concluded that:
the State has a . . . legitimate and compelling interest
in assuring that all children in Vermont are taught a
minimum course of study to insure that every child re-
ceives the minimum education necessary to obtain basic
skills to function as an adult, to participate in the
work place and the community, to provide the means for
making choices and or the State to maintain self-
government.
(Citations omitted.)
The State's interest in knowing which children are attending a par-
ticular school is obvious. It is a way to determine that each Vermont
child is being educated. Once we recognize that the State can require all
children of proper age to attend some school, we must also recognize a
method to implement the State's requirement.
C.
Our last inquiry is whether the government has proven that its
interest, though compelling, is realized by the least restrictive means,
given the clear burden on defendants' beliefs and practices. The First
Amendment imposes a high duty on the State and on this Court to find, if
possible, a pathway through the thicket of conflict that leaves both re-
ligious adherents and the State with their core interests, if not perfectly
preserved, at least substantially intact. The cautionary guidelines from
the Supreme Court are clear:
[C]ourts must move with great circumspection in per-
forming the sensitive and delicate task of weighing a
State's legitimate social concern when faced with re-
ligious claims for exemption from generally applicable
educational requirements.
Yoder, 406 U.S. at 235.
Defendants' main claim regarding this element of the free exercise test
is that the intrusion on their religious liberty is so great and the State's
interest is so weak that only an exemption from all governmental regulation
will pass constitutional muster. This exemption would necessarily leave the
State's interest unprotected, but defendants assert that this result is com-
manded by the holding in Yoder.
Yoder involved a conflict between the Wisconsin compulsory education
laws and the Amish practice of withdrawing children from public education
after the eighth grade and providing informal vocational education there-
after. As a result, Amish children received no formal schooling, as re-
quired by state law, between the ages of fourteen and sixteen years. In a
truancy proceeding against Amish parents, the United States Supreme Court
held that the First Amendment exempted Amish parents from compulsory
education laws for the two-year period because the laws denied defendants
the free exercise of their religious belief. Id. at 234.
Yoder involved an extensive record about the Amish way of life and the
role of children's education in maintaining the Amish community. The Court
summarized the findings of its balancing of the defendants' and state's
interests as follows:
Aided by a history of three centuries as an identi-
fiable religious sect and a long history as a successful
and self-sufficient segment of American society, the
Amish in this case have convincingly demonstrated the
sincerity of their religious beliefs, the interrelation-
ship of belief with their mode of life, the vital role
that belief and daily conduct play in the continued
survival of Old Order Amish communities and their
religious organization, and the hazards presented by the
State's enforcement of a statute generally valid as to
others. Beyond this, they have carried the even more
difficult burden of demonstrating the adequacy of their
alternative mode of continuing informal vocational
education in terms of precisely those overall interests
that the State advances in support of its program of
compulsory high school education. In light of this
convincing showing, one that probably few other religi-
ous groups or sects could make, and weighing the minimal
difference between what the State would require and what
the Amish already accept, it was incumbent on the State
to show with more particularity how its admittedly
strong interest in compulsory education would be ad-
versely affected by granting an exemption to the Amish.
Id. at 235-36. In a number of places in the opinion, the Court character-
ized what was at stake for the Amish community. For example, it found:
In sum, the unchallenged testimony of acknowledged
experts in education and religious history, almost 300
years of consistent practice, and strong evidence of
sustained faith pervading and regulating respondents'
entire mode of life support the claim that enforcement
of the State's requirement of compulsory formal educa-
tion after the eighth grade would gravely endanger if
not destroy the free exercise of respondents' religious
beliefs.
Id. at 219. Although the Court found that compulsory education in a
curriculum equivalent to that in the public schools would infringe defend-
ants' religious liberty, it did not suggest that all governmental regulation
of Amish education was constitutionally prohibited. It concluded by empha-
sizing that:
Nothing we hold is intended . . . to limit the power
of the State to promulgate reasonable standards that,
while not impairing the free exercise of religion, pro-
vide for continuing agricultural vocational education
under parental and church guidance by Old Order Amish or
others similarly situated. The States have had a long
history of amicable and effective relationships with
church-sponsored schools, and there is no basis for
assuming that, in this related context, reasonable
standards cannot be established concerning the content
of the continuing vocational education of Amish children
under parental guidance.
Id. at 236.
The record in this case is far different from that in Yoder. Not only
does the record lack the expert evidence of defendants' way of life, their
history and interrelationship with belief, and the essential elements for
survival, it clearly demonstrates that the conflict here in no way threatens
that way of life or the core religious values. Where Yoder was a conflict
over educational policy -- the nature and content of a "curriculum" and how
children would be educated and by whom -- this is a dispute over the symbol
of state regulation where there is no policy conflict. The Court's accept-
ance of a state role in regulation of the content of Amish vocational
education shows that the opinion cannot be read to validate a free exercise
challenge against the fact of state regulation rather than its content. See
Lemon v. Kurtzman, 403 U.S. 602, 613 (1971) (state has legitimate concern to
maintain minimum standards "in all schools it allows to operate"). More-
over, in Yoder, the time in issue was only two years of the life of a child
who had gone through public school. In this case, defendants' position
would deny all state involvement in the education of children throughout
their age of eligibility for public schooling or its equivalent. While much
of the state's interest remained intact in Yoder, none would remain intact
here.
Following Yoder, there have been extensive challenges to state re-
gulation of home education or private schooling based on assertions of
religious liberty. With only isolated exceptions, neutral and reasonable
state regulations affecting home schooling and private education have been
upheld against free exercise challenges. See New Life Baptist Church
Academy v. Town of East Longmeadow, 885 F.2d at 951-52 (regulation of
curriculum and teacher certification, with required information gathering
procedures); Murphy v. State of Arkansas, 852 F.2d at 1043 (testing);
Fellowship Baptist Church v. Benton, 815 F.2d at 492-95 (reporting and
teacher certification); Blackwelder v. Safnauer, 689 F. Supp. at 135
(substantial equivalency requirements for home schooling); Johnson v.
Charles City Community Schools Bd., 368 N.W.2d 74, 79-81 (Iowa 1985)
(reporting, standards and teacher certification); Blount v. Department of
Education & Cultural Services, 551 A.2d at 1383-84 (home schooling regu-
lation); In re Care & Protection of Charles, 399 Mass. 324, 339-40, 504 N.E.2d 592, 602 (1987) (home schooling regulation); Attorney General v.
Bailey, 386 Mass. 367, 376, 436 N.E.2d 139, 148 (1982) (reporting); Sheridan
Road Baptist Church v. Department of Education, 426 Mich. at 484, 396 N.W.2d
at 382-83 (3 - 3 affirmance) (teacher certification); State v. Faith Baptist
Church, 207 Neb. at 817, 301 N.W.2d at 579 (curriculum); State v. Patzer,
382 N.W.2d 631, 639 (N.D. 1986) (teacher certification requirement for home
schooling); State v. Schmidt, 29 Ohio St. 3d 32, 35, 505 N.E.2d 627, 629-30
(1987) (home schooling); State v. Riddle, 285 S.E.2d 359, 365 (W. Va. 1981)
(home schooling). In almost every one of these cases, the main objection
was to the fact of state involvement or regulation and not to the content.
See, e.g., Blount v. Department of Education & Cultural Services, 551 A.2d
at 1380 (parents would cooperate with the state "only if the State will
acknowledge that its role is purely advisory").
A number of the cases have involved reporting requirements which are
factually indistinguishable from those in this case. In Fellowship Baptist
Church v. Benton, 815 F.2d at 490-92, the Church school challenged the Iowa
requirement that it report the names, ages and number of days of attendance
of each pupil along with the names of teaching texts and teachers. The
court upheld the Iowa requirement holding that the "burden on plaintiff[s']
. . . religious beliefs -- if one exists at all -- is very minimal and is
clearly outweighed by the state's interest in receiving reliable information
about where children are being educated and by whom." Id. at 491. The
court rejected the alternative of parental reporting, holding that it was
inadequate to serve the state's interest. See id.; see also Mazenec v.
North Judson-San Pierre School Corp., 798 F.2d 230, 235 (7th Cir. 1986)
(consistent with Free Exercise Clause, state can create "mechanism to
monitor compliance with the law"); Johnson v. Charles City Community Schools
Bd., 368 N.W.2d at 80 (since state can "reasonably regulate the basic
educational requirements of all children within its borders," it can
"inquire into private educational institutions in order to see this is
done").
Similarly, in Attorney General v. Bailey, 386 Mass. at 376-77, 436 N.E.2d at 146, the court upheld a requirement that private schools must
report the names of students. The court found that the reporting require-
ments imposed only an "incidental burden" on defendants' right to practice
their religion and that because the school and parents were free to teach
religious doctrine to those children who attended the private school, the
state's interest in determining whether all children were in compliance with
compulsory attendance law was paramount. Id.
We see neither a less restrictive alternative to the reporting
requirement in this case, nor a valid claim for exemption from all regula-
tion through compulsory education laws. Accordingly, subject to the
resolution of two additional arguments, we find that enforcement of the
compulsory education laws in this case is consistent with the First
Amendment to the United States Constitution.
The first additional argument is that the State regulation is so
limited that it is wholly ineffectual and should not be enforced against the
claim of religious liberty. There is no question that Vermont has adopted a
very limited regulatory scheme that relies mainly on the good faith of
private schools in reporting. The State regulation also empowers parents to
ensure that their children are receiving the educational program they were
promised. See Blount v. Department of Education and Cultural Services, 551 A.2d at 1383 (reporting is an appropriate alternative for a Christian school
because the parents serve as "active intermediary and monitor"). It is
consistent with the State's view of its interest as "ensuring that the
children residing within the State receive an education, not that the
educational process be dictated in its minutest degree." In re Care and
Protection of Charles, 399 Mass. at 336, 504 N.E.2d at 600.
There is an irony in the claim that the State's private school
reporting statute is so weak that it cannot stand against a Free Exercise
claim. The statute was adopted in 1982 as a compromise acceptable to
religious educators who believed that they could report basic information to
the State but could not accept on-site inspection. See Note, State
Regulation of Private Church Schools: An Examination of Vermont's Act 151,
8 Vt. L. Rev. 75, 105 (1983) (details position of religious educators in
House and Senate Education Committees). In many free exercise cases,
parents and religious educators have argued for a reporting scheme as an
alternative to the state regulation, asserting that only a reporting system
can be a least restrictive alternative to justify intrusion on religious
exercise. See, e.g., Blount v. Department of Education and Cultural
Services, 551 A.2d at 1383. In an area where we strive to accommodate
competing claims by insisting that the State implement its interests with
the least possible effect on religiously motivated conduct, we cannot find
that the resulting state requirements are too weak to be upheld.
Finally, the parents point out that although the dispute here is
between the Church and the State, they, rather than the Church, are facing a
criminal sanction. We agree with the Supreme Court of Nebraska that when
the State acts to set minimum educational standards:
[C]ompliance with them falls within the ambit of the
fundamental contract between the citizen and society.
It need scarcely be said that each of us, in order to
enjoy membership in an organized social order, is
pledged to adhere to a number of minimum norms. Of
them, one of the most central is society's duty to
educate its children.
The nature and extent of education remains largely a
matter of personal choice. But there are basic minimums
and, this being true, it is up to the people as a whole
to set them. One way they have done this is to enact
compulsory education statutes.
Johnson v. Charles City Community Schools Bd., 368 N.W.2d at 79. Thus, a
state may require school attendance for children within a specified age and
punish the parents for their child's truancy. See Prince v. Commonwealth of
Massachusetts, 321 U.S. 158, 166 (1944); Howell v. State, 723 S.W.2d 755,
757 (Tex. Crim. App. 1986) (citing cases from other states). Many of the
challenges to state approval of religious schools and education arise in
truancy cases, and the courts have generally upheld the right of the state
to prosecute the parents despite their reliance on the free exercise of
their religion. See, e.g., State v. Shaver, 294 N.W.2d at 899-900.
We are sensitive to the danger of equating the interests of the parents
and those of the Church in a truancy case. For two reasons, however, we do
not believe the trial court was required to explore the differences in the
two interests in this case.
First, the evidence put forward by the defendants here emphasized the
unity of interest of the Church and the parents. We recognize that this
case is different from others that have come before the courts because
defendants are Church members who live, work and worship in a Church
community. Although the testimony failed to explore the issue in any
detail, we infer that the parents' only real choice is between the Church
school and the public school. Nothing in the record suggests, however, that
the Church cannot change its policies to comply with the reporting school
requirements or that parents cannot control that policy. (FN11) Nor are we
prepared to say, given the compelling interest of the State and the lack of
less restrictive alternatives, that we will uphold defendants' free
exercise challenge even if the Church refuses to comply with the reporting
school requirements.
Second, there is no indication that the parents have made any attempt
to reconcile the conflict between state requirements and Church policy.
Their position is similar to that in State v. Riddle, 285 S.E.2d at 364,
where the court concluded that "it is not appropriate for a person entirely
to disregard the statute, await criminal prosecution, and then assert a
first amendment defense." Defendants have the burden to establish an
exception to the compulsory education responsibility. See State v.
McCaffrey, 69 Vt. 85, 90-91, 37 A. 234, 235-36 (1896). They have failed to
meet this burden.
II.
As we indicated at the beginning of this opinion, defendants' primarily
rely on Chapter I, Article 3 of the Vermont Constitution. That Article
provides:
That all men have a natural and unalienable right, to
worship Almighty God, according to the dictates of their
own consciences and understandings, as in their opinion
shall be regulated by the word of God; . . . and that no
authority can, or ought to be vested in, or assumed by,
any power whatever, that shall in any case interfere
with, or in any manner control the rights of conscience,
in the free exercise of religious worship.
Defendants see, in the wording of the article and its history, additional
personal protections that require that this truancy action be dismissed. As
noted in State v. Jewett, 146 Vt. 221, 225-27, 500 A.2d 233, 236-37 (1985),
we have a number of approaches available in construing our constitution
including historical analysis, examination of the text, constructions of
identical or similar provisions in other state constitutions, and use of
sociological materials. The parties have used all these approaches in this
case. Before turning to some of these approaches, we first look to our own
decisions construing Article 3.
The first important precedent is Ferriter v. Tyler, 48 Vt. 444 (1876),
where parents of children enrolled in the public schools in Brattleboro sued
the school committee (prudential committee) because their children were
expelled when they did not attend school on a Roman Catholic religious
holiday in order to attend Church services. The Court dismissed the action
because it was brought by the parents, and their religious liberties, as
opposed to those of the children, had not been infringed.
The Court went on, however, to examine the issue as if the case had
been brought by the children and found there was no violation of Article 3.
In reaching that result, the Court construed Article 3 primarily as an
anti-discrimination provision. The essence of the Court's opinion is in
the following language:
Let it be repeated then, that that article in the
constitution was not designed to exempt any person or
persons of any sect, on the score of conscience as to
matters of religion, from the operation and obligatory
force of the general laws of the state authorized by
other portions of the same instrument, and designed to
serve the purposes contemplated by such other portions;
it was not designed to exempt any person from the same
subjection that others are under to the laws and their
administration, on the score that such subjection at
times would interfere with the performance of religious
rites, and the observance of religious ordinances, which
they would deem it their duty to perform and observe but
for such subjection. While all stand on equal footing
under the laws, both as to benefits and privileges
proffered, and as to exactions made, and liabilities,
and penalties imposed, no one's rights of conscience, as
contemplated by said Art. III, are violated in a legal
sense. And it is fitting here to remark, that this
court have to deal with the subject as jurists, regard-
ing the constitution and the laws, and what is done
under them, with reference to principles and reasons
that appertain to the subject in its legal elements,
qualities, and aspects, and not as religionists, not as
sectaries, not as those who regard something besides the
government as of ultimate supremacy in the affairs of
men on earth, but as those who regard the government
created by the constitution, and the laws made under the
authority and within the scope of the constitution, as
the ultimate sovereignty in this state, and as equally
obligatory and effectual upon all.
48 Vt. at 469 (emphasis in original).
There was little additional analysis of Article 3 until this Court
decided two cases dealing with whether state aid to religious schools
created a state establishment of religion. See Swart v. South Burlington
Town School District, 122 Vt. 177, 167 A.2d 514, cert. denied, 366 U.S. 925
(1961); Vermont Educational Buildings Financing Agency v. Mann, 127 Vt.
262, 247 A.2d 68 (1968). Swart describes some of the history of Article 3
and observes that:
[i]n Vermont, the militant sense of freedom which
directed its founders to be the first to write a pro-
hibition against slavery in the establishment of the
independent state in 1777, was somewhat reserved in
expression of religious liberty.
122 Vt. at 182, 167 A.2d at 517. The Court noted that the original version
of Article 3, in the 1777 Constitution, limited the protection of the anti-
discrimination language to those who professed the protestant religion.
This limitation was added onto the Pennsylvania provision, which we other-
wise adopted, because the framers of our constitution were fearful that the
religious liberty allowed by the Pennsylvania version "would be somewhat
larger than the people of New England had been accustomed." Id. (quoting D.
Chipman, A Memoir of Thomas Chittenden at 84 (1849)). The 1786 version of
the constitution dropped the limitation of the anti-discrimination pro-
tection to protestants and, as discussed below, added additional language
to the Pennsylvania model. In Vermont Educational Buildings Financing
Agency, we noted that in establishment of religion cases, the protections of
the First Amendment to the United States Constitution are greater than those
in Article 3. 127 Vt. at 269, 247 A.2d at 73.
Two other recent cases deserve some mention. In State v. Chambers, 144
Vt. 234, 238, 477 A.2d 110, 112 (1984), defendant was convicted of burying
his daughter without a burial permit and appealed, arguing that the con-
viction violated his right to free exercise of religion under the First
Amendment and Article 3. We disposed of the constitutional claims, citing
only to Wisconsin v. Yoder, on the basis that defendant failed to show that
his claim was based on "deep religious conviction," suggesting that the
tests under the federal and the state constitutions are identical. In
Beauregard v. City of Saint Albans, 141 Vt. 624, 631-32, 450 A.2d 1148, 1152
(1982), we found that a will provision restricting the religious affiliation
of those serving on the school board for a public high school violated
Article 3. We found that the article prohibits "mere interference" in the
rights of conscience in the free exercise of religious worship. Under that
standard, the article was violated because defendant "must either abandon
his faith or convert in order to participate in the administration of his
local school board." Id. at 632, 450 A.2d at 1152.
We find little in our case law to assist defendant in this case.
Although Swart is an establishment of religion case, its conclusion that
Vermont did not adopt an expansive religious liberty provision actually
relates to the protection of the free exercise of religion. This is
consistent with Ferriter v. Tyler, which adopts a view of Article 3 that
affords less protection to religious liberty than is now afforded under the
First Amendment. Although the more recent language in Beauregard is broad,
the decision contains no real analysis and the case before the Court fell
squarely within the anti-discrimination construction of Article 3 announced
in Ferriter. Based on these cases, we would have to conclude that at least
with respect to the claims made in this case, we can find no basis for the
argument that the Vermont Constitution affords additional protection to
defendants such that they may not be prosecuted for truancy.
The parties have briefed a number of arguments for which the defendants
suggest a different result than our precedents command. We will analyze in
some detail cases from other states since such analysis has been particular-
ly helpful on other state constitutional questions. See State v. Dean, 148
Vt. 510, 515-16, 536 A.2d 909, 913 (1987); State v. Picknell, 142 Vt. 215,
227, 454 A.2d 711, 716 (1982). As noted above, Article 3 was derived from a
very similar provision of the Pennsylvania Constitution (now Article 1, {
3). Approximately fourteen states have provisions modeled on the Pennsyl-
vania Constitution although the language varies somewhat. In ten of these
states, the courts have either held that their constitutional provision
offers the same level of protection to the free exercise of religion as the
First Amendment or have decided free exercise cases involving their consti-
tutional provision solely on federal precedents. See Cude v. State, 237
Ark. 927, 932, 377 S.W.2d 816, 819 (1964) (relying on federal precedents,
court holds that Arkansas Constitution "does not mean that parents, on
religious grounds, have the right to deny their children an education");
Lynch v. Indiana State Univ. Bd. of Trustees, 177 Ind. App. 172, 177-84, 378 N.E.2d 900, 904-06 (1978) (analyzes free exercise case under First Amendment
and Article I, {{ 2-4 of the Indiana Constitution solely through federal
precedents); State ex rel. Pringle v. Heritage Baptist Temple, 236 Kan. 544,
546-47, 693 P.2d 1163, 1165-66 (1985) (analyzes free exercise claim under
First Amendment and { 7 of the Kansas Bill of Rights by the three-part test
of Wisconsin v. Yoder); Dotter v. Maine Emp. Sec. Comm'n, 435 A.2d 1368,
1374 n.2 (Me. 1981) (scope of right to religious liberty in Maine
Constitution is co-extensive with that afforded by the First Amendment); (FN12)
State by McClure v. Sports & Health Club, 370 N.W.2d 844, 851-53 (Minn.
1985) (analyzes free exercise claim under First Amendment and Article I, {
16 of the Minnesota Constitution solely based on federal precedents, over a
dissent urging a different result using the Minnesota Constitution); Penner
v. King, 695 S.W.2d 887, 890-91 (Mo. 1985) (en banc) (analyzes free exercise
claim under First Amendment and Article I, { 5 of the Missouri Constitution
based solely on federal precedents with concurrence that court should mean-
ingfully implement the Missouri Bill of Rights); (FN13) In re Williams, 269 N.C.
68, 78, 152 S.E.2d 317, 325 (1967) (freedom protected by Article I, { 26 of
the North Carolina Constitution is no more extensive than freedom to exer-
cise one's religion, protected by the First Amendment); In re Milton, 29
Ohio St. 3d 20, 23-26, 505 N.E.2d 255, 258-60 (1987) (analyzes free exercise
claim under First Amendment and Article I, { 7 of the Ohio Constitution
solely based on federal constitutional law precedents); (FN14) Wiest v. Mt.
Lebanon School Dist., 457 Pa. 166, 174, 320 A.2d 362, 366-67 (1974) (the
protection of Article I, { 3 of the Pennsylvania Constitution "does not
transcend the protection of the First Amendment of the United States
Constitution"); State ex rel. Warren v. Nusbaum, 55 Wis. 2d 316, 332, 198 N.W.2d 650, 658 (1972) (while words differ, both Article I, { 18 of the
Wisconsin Constitution and the First Amendment "are intended and operate to
serve the same dual purpose of protecting the 'establishment' of religion
and protecting the 'free exercise' of religion").
Of the remaining states, only three have any decisions that remotely
help the defendants. Defendants rely heavily on a decision from the Supreme
Court of Tennessee, State ex rel. Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975),
as establishing greater protections for free exercise claims under Article
I, { 3 of the Tennessee Constitution. Pack involved a suit brought by the
state to enjoin a pastor and elder of the Holiness Church from handling
poisonous snakes as part of religious services. Id. at 102-03. The court
held that the defendant's conduct was not protected by either Article 1, { 3
of the Tennessee Constitution or the First Amendment. In reaching this
decision, however, the court characterized Article 1, { 3 of the Tennessee
Constitution as "substantially stronger" than the First Amendment and stated
that the state's burden was to show "a clear and present danger to the
interest of society." Id. at 111. From these statements, defendants argue
that the Tennessee Constitution requires a greater showing by the state to
defeat a free exercise claim -- instead of a "compelling state interest,"
defendants argue the state must show "a clear and present danger" -- and
Vermont should adopt a similar requirement.
We cannot read Pack as broadly as the defendants. The court stated
specifically that the First Amendment also required the state to show a
clear and present danger, relying on a number of older United States
Supreme Court decisions. See id. While the court characterized the
provision of the Tennessee Constitution as stronger, the standards and legal
principles adopted under the Tennessee Constitution and the First Amendment
are identical. Nothing in decisions following Pack suggests that added
protections given by Article 1, { 3 of the Tennessee Constitution would aid
defendants in the circumstances present here. See, e.g., State ex rel.
McLemore v. Clarksville School, 636 S.W.2d 706, 711 (Tenn. 1982) (court
rejected defendants' First Amendment and { 3 claims based solely on federal
constitutional decisions, including Sherbert v. Verner and Wisconsin v.
Yoder).
A similar situation is presented by the Texas decision of Howell v.
State, a school truancy case where the court found that "[t]he Texas
Constitution grants greater religious freedom than is provided for in the
United States Constitution." 723 S.W.2d at 758. The Court went on,
however, to define a free exercise test virtually identical to that set
forth in the United States Supreme Court decisions. See id. (state must
show "a compelling state interest . . . and the lack of a less restrictive
alternative means").
A third state, Oregon, is instructive because the Supreme Court of that
state has been a national leader in developing an independent constitutional
jurisprudence. In the past, the Oregon Supreme Court interpreted the Oregon
guarantees of religious freedom as "identical in meaning" to the United
States Constitution. See City of Portland v. Thornton, 174 Or. 508, 512-13,
149 P.2d 972, 974 (1944). More recent cases have, however, involved
independent interpretations of Article I, {{ 2 and 3 of the Oregon
Constitution, the provisions protecting religious liberty. See Employment
Div. v. Rogue Valley Youth, 307 Or. 490, 498, 770 P.2d 588, 592-93 (1989);
Cooper v. Eugene School Dist. No. 4J, 301 Or. 358, 368-73, 723 P.2d 298,
305-08 (1986); Salem College & Academy, Inc. v. Employment Div., 298 Or.
471, 484-92, 695 P.2d 28, 34-39 (1985). In none of these cases did the
Court hold that the Oregon constitutional provisions afforded greater
protections for religious exercise than the First Amendment. In Smith v.
Employment Division, 301 Or. 209, 216-17, 721 P.2d 445, 448 (1986), the
Court held that denial of unemployment compensation benefits to a drug
counselor who was discharged for using peyote in a Native American religious
service did not offend the Oregon Constitution, but did offend the First
Amendment. (FN15)
In summary, we conclude that the decisions of courts in other states
with similar constitutional provisions protecting religious freedom support
the construction of Chapter I, Article 3 of the Vermont Constitution adopted
in our earlier decisions. We cannot find from these decisions that Article
3 affords any greater protections in this case so as to exempt defendants
from truancy prosecution when they chose to educate their children by a
method that does not meet the minimal Vermont requirements.
We will dispose more briefly of the textual and historical arguments.
In general, they would require us to overrule Ferriter v. Tyler (as
defendants acknowledge) and rewrite the historical analysis in Swart. While
a case may arise, involving a different conflict between state action and
religious liberty, to require such a reevaluation, we remain unconvinced
that it is desirable here. Although there are major textual differences
between Article 3 and the First Amendment, we find nothing in them that
compels a different result in this case. Similarly, defendants' historical
analysis shows religious ferment in this State only loosely connected to the
issues before the Court. If this ferment had arisen against a national
background of insensitivity to religious liberty and a clear failure to
separate secular and religious concerns, we could understand better the
claim for a different Vermont balancing of the interests before the Court.
Instead, defendants' analysis shows that Vermont leaders and citizens have
shared the concern for religious liberty on which this nation was founded,
and discrete, historical events have tested this concern.
For the above reasons, we conclude that neither the First Amendment to
the United States Constitution, nor Chapter I, Article 3 of the Vermont
Constitution, require the dismissal of the criminal prosecution against
defendants. Accordingly, we must address the other issues.
III.
Defendants next challenge the truancy statute as unconstitutionally
vague. The statute under which defendants were charged, 16 V.S.A. {
1127(b), provides:
(b) When, after receiving . . . notice [from the truant
officer], a person fails, without legal excuse, to cause
a child to attend school as required by this chapter, he
shall be fined not more than $1,000.00.
The school attendance requirement is set forth in 16 V.S.A. { 1121, a
statute that is set out in full in the opening of this opinion. Defendants
argue that the truancy statute is unconstitutionally vague because of the
use of the term "without legal excuse."
In order to withstand a void-for-vagueness attack, a criminal statute
must "define a criminal offense with sufficient certainty so as to inform a
person of ordinary intelligence of conduct which is proscribed, and such
that arbitrary and discriminatory enforcement is not encouraged." State v.
Cantrell, 151 Vt. ___, ___, 558 A.2d 639, 641 (1989). See also State v.
Parenteau, ___ Vt. ___, ___, 569 A.2d 477, 478 (1989) (quoting Cantrel
State v. Harris, ___ Vt. ___, ___, 568 A.2d 360, 361 (1989) (statute is
vague if persons of ordinary intelligence do now know what conduct violates
its terms). The prohibition of criminal convictions based on vague statutes
is intended to: (1) provide "fair warning" to potential offenders that
their conduct is proscribed; and (2) set sufficiently precise standards to
avoid arbitrary and discriminatory enforcement. State v. Purvis, 146 Vt.
441, 442, 505 A.2d 1205, 1206-07 (1985).
We believe that the statute in this case describes the offense with
sufficient certainty to withstand the constitutional challenge. (FN16) Although
we have not had an opportunity to construe the truancy statute in its
present form, its meaning is clear. We are guided by two canons of
statutory construction: (1) we must enforce the plain meaning of the
language if possible; and (2) we must construe statutes relating to the
same subject matter in pari materia. See Smith v. Town of St. Johnsbury,
150 Vt. 351, 355, 554 A.2d 233, 237 (1988); In re S.B.L., 150 Vt. 294, 301,
553 A.2d 1078, 1083 (1988). Reading the truancy statute together with the
school attendance statute, 16 V.S.A. { 1121, it is clear that the
Legislature intended to specify the school attendance requirement in the
latter statute and place the punishment for non-compliance in the former
statute. Thus, the truancy statute defines neither the attendance
obligation nor the exceptions to it. The school attendance obligation, "as
required by this chapter," is contained in the body of { 1121. The
exceptions, each defining a "legal excuse," are set forth in provisions (1)
through (4) in { 1121. These elements are not part of the description of
the offense but are instead affirmative defenses. See State v. McCaffrey,
69 Vt. at 90, 37 A. at 235-36.
We believe that the statutory construction we have arrived at is
sufficiently clear to inform persons of reasonable intelligence of what the
statute proscribes. In reaching this conclusion, we distinguish as
inapplicable cases involving terms like "without legal excuse" where the
Legislature has not specifically defined the legal excuses. See Thornhill
v. Alabama, 310 U.S. 88, 100 (1940) (words "without just cause or legal
excuse" in picketing statute "have no ascertainable meaning either inherent
or historical"); State v. Richmond, 102 Wash. 2d 242, 248, 683 P.2d 1093,
1096 (1982) (nonsupport statute using "without lawful excuse" language is
vague because neither the statute nor prior cases were sufficiently specific
to establish the meaning). The statute is not void-for-vagueness.
IV.
Defendants next claim that the criminal prosecution impermissibly
intrudes on their substantive due process right to control and direct the
education of their child in violation of the Fourteenth Amendment of the
United States Constitution. The right defendants assert found its first
expression in Pierce v. Society of Sisters, 268 U.S. at 534-35, as the
"liberty of parents and guardians to direct the upbringing and education of
children under their control" and has been recognized in later decisions of
the United States Supreme Court. See Carey v. Population Services
International, 431 U.S. 678, 685 (1977) (child rearing and education part of
the right to privacy); Griswold v. Connecticut, 381 U.S. 479, 482 (1965)
(right to educate one's child as one chooses is part of right to privacy).
We have also recognized this right in other contexts. See Paquette v.
Paquette, 146 Vt. 83, 92, 499 A.2d 23, 29 (1985) (due process clause
protects "the liberty interest of parents and children to relate to one
another in the context of the family, free from governmental interference").
Although we agree that defendants have the right to direct the
education of their children, we do not agree that it is absolute. In Runyon
v. McCrary, 427 U.S. 160, 178 (1976), the Supreme Court held that the
privacy right did not restrict the government "from regulating the
implementation of parental decisions concerning a child's education." Thus,
it went on to hold that parents "have no constitutional right to provide
their children with private school education unfettered by reasonable
government regulation." Id. Based on the analysis of Runyon, all courts
that have confronted defendants' argument here have rejected it and held
that the parents' rights must give way to reasonable state regulation. See,
e.g., Murphy v. State of Arkansas, 852 F.2d at 1044; Care and Protection of
Charles, 399 Mass. at 336, 504 N.E.2d at 600; State v. Shaver, 294 N.W.2d 883, 899 (N.D. 1980). Since we have held above that the regulation in this
case is reasonable, there is no violation of defendants' due process rights
as parents.
V.
Defendants assert three challenges to the information in this case.
The first is that the information fails to charge a violation of 16 V.S.A. {
1127 because it alleges that the offense occurred on only two days, April 3
and 4, 1984. Defendants characterize this as a temporary absence from
school, which the statute does not prohibit.
The argument that the crime is not committed by a temporary absence is
based mainly on State v. Burroughs, 102 Vt. 33, 145 A. 260 (1929).
Burroughs was also a truancy case in which the defendant was charged with
neglecting to send his daughter to school on January 19, 1928. At that
time, the statute required the parent of a school-age child to "cause such
child to attend a public school continuously for the full number of days
for which such school is held." Id. at 34, 145 A. at ___.
The evidence in Burroughs showed that defendants' daughter was late
for school almost continuously from January 19th through March 31st and that
she was absent from school on certain days before January 18th (the day
before that specified in the information). The precise question before the
Court was whether the trial court erred in admitting the above evidence.
The Court held that the trial court erred for two reasons: (1) the trial
court had admitted evidence of crimes not charged -- that is, the evidence
of the pre-January 19th absences; and (2) tardiness of a child is not
truancy. On the latter point, the Court held that the words "continuously
for the full number of days for which such school is held" did not cover
tardiness "or even a temporary absence not inconsistent with the general
design of requiring compulsory attendance of all pupils within the age
limits prescribed." Id. at 35, 145 A. ___. Defendants focus on this quoted
language and argue that a two-day absence is only temporary and thus not
subject to criminal penalties under the truancy law.
The language on which defendants rely is dicta which, if carried to
extremes, would emasculate the statute and make the obligation of a parent
so uncertain and imprecise that serious constitutional questions would
arise. The line between temporary and permanent absence would have to be
drawn case by case by court decisions, and parents would be unable to
predict clearly where that line would be drawn.
A more narrow and consistent reading of Burroughs is that the Court was
reacting to the use of the word "continuously" in the then-existing statute
which established the school attendance requirement. Thus, the Court held
that a parent didn't breach the continuous attendance requirement by sending
a child to school late or by allowing the child to be temporarily absent
once the child was sent to school.
The current statute no longer uses the word "continuously." As it
existed at the time of the events leading to this prosecution, the statute
required the parent to cause the child to attend school "for the full number
of days for which that school is held." 16 V.S.A. { 1121. As discussed
above, the statute contained four exceptions to the attendance requirement.
In addition, 16 V.S.A. { 1123(a) allows the superintendent of a public
school to excuse a pupil from attendance for emergencies or absence from the
town for a definite time, not to exceed ten consecutive school days. (FN17)
When a child "who is not excused or exempted from school attendance, fails to
enter school at the beginning thereof, or being enrolled, fails to attend
the same," the teacher or principal must notify the truant officer unless
the teacher or principal is satisfied that the pupil is absent because of
sickness. (FN18) 16 V.S.A. { 1126. Once the truant officer is notified, that
officer must investigate the cause of the nonattendance and, upon a finding
that the child is absent "without cause," notify the person having control
of the child of that finding and further notify that person "to cause the
child to attend school regularly thereafter." 16 V.S.A. { 1127(a). The
criminal penalty applies only to a person who "after receiving such notice"
fails without legal excuse to cause the child to attend school as required
by Chapter 25 of Title 16. See 16 V.S.A. { 1127(b).
We must enforce criminal statutes in accordance with their plain
meaning where that is clear. See State v. Saari, ___ Vt. ___, ___, 568 A.2d 344, 350 (1989). The statute unambiguously authorizes penalties against a
parent who fails to cause a child to attend school after receiving notice
from the truant officer. The failure to cause a child to attend school,
even for one school day, violates the statute. Thus, the information
against defendants was sufficient since it charged them with violating the
statute on two successive days following receipt of notice from the truant
officer.
We also note that the affidavit that accompanied the information shows
that the state was not pursuing an isolated claim of noncompliance. The
truant officer gave defendants over a month following the notice to come
into compliance, presumably to allow for some negotiation between the State
and the Church school. The absence alleged occurred on the two days
following the expiration of the notice period and on days when the officer
stated by affidavit that he observed the child riding a bicycle on a public
street during normal school hours.
VI.
Next, defendants argue that the information failed to allege all
essential elements of the crime and was, therefore, defective. Defendants
claim that the information failed to inform them of the cause and nature of
the accusations against them in violation of Chapter I, Article 10 of the
Vermont Constitution and the Sixth Amendment to the United States
Constitution, and further fails to provide "a plain, concise, and definite
written statement of the essential facts constituting the offense charged"
as required by V.R.Cr.P. 7(b). See generally State v. Roy, ___ Vt. ___,
___, 557 A.2d 883, 891-92 (1989).
Our recent cases have used a common sense approach to the constitu-
tional and criminal rule notice obligation. In State v. Brown, No. 87-555,
slip op. at 9-11 (Vt. Dec. 8, 1989), defendant alleged that an information
charging attempted sexual assault was defective because it failed to specify
that the attempt was "interrupted or prevented," as set forth in the
applicable statute, and because it failed to state that he had attempted a
sexual assault, used compulsion or attempted a sexual act. This Court
rejected the claims because the information's conclusory allegations
coupled with a specific recitation of the alleged facts in the probable
cause affidavit adequately informed defendant of the nature of the charge.
Id., slip op. at 10.
Although we have adopted a common sense approach, it is clear that the
constitutional provisions and Rule 7(b) require the information to state the
essential elements of the offense. See State v. Kreth, 150 Vt. 406, 407-08,
553 A.2d 554, 555 (1988). Thus, the question in this case reduces to
whether the information stated the essential elements of the offense.
The parties briefed and argued the issue generally on whether the
information had to negate the four exceptions of 16 V.S.A. { 1121 in order
to charge each of the elements of the offense. They have taken different
sides on whether the exceptions are part of the definition of the offense or
are matters of excuse in light of our early truancy decision in State v.
McCaffrey, 69 Vt. at 90-91, 37 A. at 235-36, and the more recent truancy
decision in State v. LaBarge, 134 Vt. at 279-80, 357 A.2d at 124. See also
State v. St. Francis, ___ Vt. ___, ___, 563 A.2d 249, 252 (l989) (reaffirms
and explains McCaffrey holding). LaBarge and McCaffrey are burden-of-proof
cases, however, and are not determinative of the issue before the Court.
As we held in State v. Brown, the prosecution does not have to make
allegations of everything it will prove. See State v. Roy, ___ Vt. at ___,
557 A.2d at 891-92. Normally it is sufficient to allege the statutory
elements of the offense without more, as long as the defendants are
sufficiently apprised of the charges against them. See id.
The basic elements of the truancy offense are described in { 1127(b),
the criminal statute. While the statute refers generally to obligations
imposed elsewhere in Chapter 25 of Title 16, it is not necessary that the
state detail all those obligations in the information where the defendants
have sufficient notice of the charges to form a defense. To determine the
sufficiency of the information, it must be read in conjunction with the
accompanying affidavit. State v. Brown, slip op. at 9. Here, the affidavit
that accompanied the information supplied all the necessary detail. It
specified the obligation to send defendants' child to school and negated all
the exceptions in Chapter 25. It described the notice given to defendants
and observations of defendants' son riding a bicycle on a public street
during normal school hours on April 3rd and 4th, the dates of the alleged
offense.
None of the exceptions of 16 V.S.A. { 1126 are involved in this case,
and only a hyper-technical statement of the State's obligation to plead the
elements of the offense could require that they be negated in the
information. The information set forth the elements of the offense
contained in { 1127(b) and defendants were fully aware of the nature of the
accusations against them. The informations are not defective for failure to
allege all essential elements of the crime.
VII.
Finally, defendants allege that the informations are defective because
they fail to protect defendants against reprosecution for the same offense.
This claim is based on their assertion that parents cannot commit the crime
of truancy more than once in a school year since the criminal conduct is the
failure to send the child to school "for the full number of days for which a
school is held." 16 V.S.A. { 1121. Thus, they argue that the limiting of
the offense charged to two days leaves them vulnerable to another charge of
truancy during the school year.
The trial court found defendants' double jeopardy attack to be
premature and we agree. In State v. Ross, ___ Vt. ___, ___, 568 A.2d 335,
338 (1989), the defendant made a similar claim about an information charging
him with sexually assaulting a minor because the date was specified only as
during the summer of 1983. We held that the double jeopardy claim was
premature and could be raised only when a second sexual assault prosecution
was commenced. See also State v. Nash, 144 Vt. 427, 435, 479 A.2d 757, 761
(1984) (double jeopardy claim, based on failure of State to specify which
alternative theory of sexual assault it was using, was premature). The
rationale of Ross governs here. Defendants can pursue their double jeopardy
claim if they are again prosecuted for failing to send their child to school
in the same school year.
For the above reasons, certified questions 1, 2, 3, 5 and 6 are
answered in the negative, and certified question 4 is answered in the
affirmative. The rulings of the trial court are affirmed and the matter is
remanded for trial.
FOR THE COURT:
Associate Justice
FN1. Justice Peck sat for oral argument but did not participate in the
decision.
FN2. 16 V.S.A. {{ 1121 and 1127, two of the statutes central to this
case, have since been amended. The versions involved in this case are
contained in 1981, No. 151 (Adj. Sess.), {{ 2, 3. Whenever either statute
is cited in the text, the reference is to the version in effect in April,
1984 when the alleged offense occurred.
FN3. 16 V.S.A. { 165a has been repealed effective July 1, 1990 by 1989,
No. 44, { 7. A new system has been created under which reporting private
schools would become recognized, independent schools. See 16 V.S.A. {
166(c). The new system involves more extensive state regulation. The
discussion of the regulatory scheme in the text refers to the situation
prior to July 1, 1990.
FN4. The reporting private school statute requires reporting and gener-
ally contains no penalty if the school fails to fulfill the objectives
contained in its statement. It does state, however, that failure to provide
a minimum course of study is subject to the provisions of the consumer fraud
law and "all the remedies provided therein." 16 V.S.A. { 165a(d). The
consumer fraud law provides for a range of remedies including injunctions,
civil penalties of up to $10,000 per violation, restitution orders,
compensatory damages, attorney's fees and punitive damages. See 9 V.S.A. {{
2458(a), (b); 2461(b). There are no criminal penalties.
FN5. The version of { 906(b) quoted in the text is that in effect at the
time of the alleged offense as created by 1981, No. 151 (Adj. Sess.), { 4.
The statute has since been amended, primarily to add "the fine arts" to the
minimum courses of study. See 1987, No. 132 (Adj. Sess.).
FN.6 Amendment I provides:
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
FN7. Chapter I, Article 3 provides:
That all men have a natural and unalienable right, to
worship Almighty God, according to the dictates of their
own consciences and understandings, as in their opinion
shall be regulated by the word of God; and that no man
ought to, or of right can be compelled to attend any
religious worship, or erect or support any place of
worship, or maintain any minister, contrary to the dic-
tates of his conscience, nor can any man be justly
deprived or abridged of any civil right as a citizen, on
account of his religious sentiments, or peculia[r] mode
of religious worship; and that no authority can, or
ought to be vested in, or assumed by, any power what-
ever, that shall in any case interfere with, or in any
manner control the rights of conscience, in the free
exercise of religious worship. Nevertheless, every
sect or denomination of christians ought to observe the
sabbath or Lord's day, and keep up some sort of
religious worship, which to them shall seem most
agreeable to the revealed will of God.
FN8. We do not believe that this holding in cases involving the right of
parents to direct the education of their children is changed by the recent
opinion in Employment Division v. Smith, 58 U.S.L.W. 4433, 4436 (U.S. April
17, 1990). In the lexicon of that decision, this is a "hybrid situation"
implicating more than a free exercise claim and, thus, the State must show
more than that the truancy law is of general applicability and is valid and
neutral. See id. at 4435.
FN9. "Hence it is necessary in a free exercise case for one to show the
coercive effect of the enactment as it operates against [the party] in the
practice of [its] religion." 374 U.S. at 223.
FN10. The recent opinion in Employment Division v. Smith, 58 U.S.L.W. at
4437, appears to direct that the State, in this case, need meet only a
reasonable relationship standard. Since we find that the State has shown a
compelling State interest, we would necessarily also find that the State has
met the lesser burden of Smith.
FN11. We also cannot preclude the possibility that defendants could
comply with the home schooling alternative of the law, a subject also not
explored in the evidence.
FN12. See also Blount v. Department of Education & Cultural Services, 551 A.2d at 1385 (full range of protections of Maine Constitution is also
available under the United States Constitution).
FN13. The concurring opinion would have reached a different result than
the majority but closed by stating: "I serve no useful purpose by
dissenting again and again." 695 S.W.2d at 894 (Donnelly, J., concurring).
But see Waites v. Waites, 567 S.W.2d 326, 331 (Mo. 1978) (en banc) (in
establishment cases, Missouri Constitution "is more 'restrictive' than the
First Amendment").
FN14. See also South Ridge Baptist Church v. Industrial Comm'n of Ohio,
676 F. Supp. 799, 808 (S.D. Ohio 1987) (Ohio courts have given no indication
that they would apply Article I of the Ohio Constitution more stringently
than the United States Supreme Court has applied the First Amendment).
FN15. When this case was initially appealed to the United States Supreme
Court, Employment Division v. Smith, 485 U.S. 660 (1988), the Court vacated
the Oregon Supreme Court's holding with respect to the First Amendment issue
and remanded the case back to the Oregon Court to determine whether the
sacramental use of peyote was proscribed by Oregon's controlled substance
law. On remand, the Oregon Court concluded that use of peyote in these
circumstances was in fact unlawful, but nevertheless held that the First
Amendment prevented the law's enforcement. Smith v. Employment Division,
307 Or. 68, 76, 763 P.2d 146, 150 (1988). On the second appeal to the
United States Supreme Court, the Court reversed the Oregon Court holding
that because the use of peyote was prohibited under Oregon law and because
that prohibition is constitutional, Oregon may deny the unemployment
compensation without offending the First Amendment. Employment Division v.
Smith, 58 U.S.L.W. at 4438.
FN16. Because of the nature of defendants' challenge, we need not decide
whether defendants may assert the vagueness of the statute in relation to
others not before the Court because the statute affects First Amendment
rights. See State v. Cantrell, 151 Vt. at ___, 558 A.2d at 642-43. The
meaning of the "without legal excuse" language affects defendants directly
because they assert that the infringement on their religious liberties
gives them a lawful excuse for not complying with the school attendance
requirements. We note, however, that the mere fact that a criminal statute
may affect the exercise of religion cannot allow facial overbreadth analy-
sis, since the possibilities of conflict between sincerely held religious
beliefs and criminal statutes are limitless. If this were true, every
criminal statute would be subject to overbreadth analysis based on this
argument.
FN17. The private school reporting statute, 16 V.S.A. { 165a, does not
contain identical language, although it does require the school to state as
an objective that it prepares and maintains attendance records for each
pupil, 16 V.S.A. { 165a(b)(2)(A); it further requires the school to notify
the Commissioner of Education of termination of a child's enrollment, 16
V.S.A. { 165a(e).
FN18. The facts of this case do not specify whether the child failed "to
enter school at the beginning thereof" or failed to attend once enrolled.
In any event, defendants do not challenge the { 1126 notice to the truant
officer in this case. See State v. LaBarge, 134 Vt. 276, 278, 357 A.2d 121,
123 (1976) (notice by the truant officer is a prerequisite to the bringing
of the proceedings).
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