Friday, September 29, 2006

What Church Schools in Ohio Should Do Today

The victory for church schools in Ohio was achieved through the grace of God and through the faithful stand of church leaders in Ohio, particularly Pastor Randall Townsend, president of Christian Schools of Ohio, and Pastor Keith Hamblen, president of Buckeye Christian Schools Association. Through their efforts, the Ohio Department of Education issued a letter on September 27, 2006, revoking the department's earlier letters which were so threatening to church schools and parents.

The department's letter was issued by Attorney Matthew J. DeTemple, Chief Legal Counsel, basically setting forth what the Minimum Standards have been for church schools since 1983. Since the letter overrules the department's earlier letters and updates the schools' obligations under the Minimum Standards, we have taken the liberty to reproduce the letter in its entirety. After reading the letter, please read the additional comments which I make, setting forth what church schools in Ohio should do today.

___________________

Pastor Randall Townsend
President, Christian Schools of Ohio
1944 Meriline Avenue
Dayton, OH 45420

Re: Registration of non-chartered, non-tax supported schools, pursuant to Ohio Administrative Code Section 3301-35-08

Dear Pastor Townsend:

This letter responds to your inquiries concerning the above-reference registration process. As you are aware, Ohio Administrative Code ("O.A.C.") Section 3301-35-08 provides that a school, "which is not chartered or seeking a charter from the state board of education because of truly held religious beliefs, shall annually certify in a report to the parents of its pupils that the school meets Ohio minimum standards for non-chartered, non-tax supported schools...." The applicable minimum standards set forth in subsections (A) - (H) of O.A.C. Section 3301-35-08 are the following:

(A) School Year. The school shall be open for instruction with pupils in attendance for not less than one hundred eighty-two days each school year acccording to section 3313.48 of the Revised Code.

(B) School day. The school day for pupils in grades one through twelve shall be no less than five hours exclusive of the noon recess according to section 3313.48 of the Revised Code.

(C) Pupil Attendance. Pupil attendance shall be reported to facilitate administration of laws relating to compulsory education and the employment of minors. Parents shall be responsible for reporting their child's school enrollment or withdrawal. An individual in charge of the non-chartered, non-tax supported school may, as a matter of convenience, provide a report for the parent.

(1) The attendance report shall include the name, age, and place of residence of each pupil below eighteen years of age.

(2) The report shall be made to the treasurer of the board of education of the city, exempted village, or local school district in which the pupil resides.

(3) The report shall be made within the first two weeks of the beginning of each school year. In the case of pupil withdrawal or entrance during the school year, notice shall be given to the treasurer of the appropriate board(s) of education. Such notice shall be given withing the first week of the next school month.

(D) Teacher and administrator qualificaitons. Teachers and administrators shall have received a bachelor's degree or the equivalent therof from a recognized college or university.

(E) Courses of study. Each non-chartered, non-tax supported school shall have courses of study for the following subjects:

(1) Language arts;

(2) Geography, the history of the United States and Ohio, and national, state, and local government;

(3) Mathematics;

(4) Science;

(5) Health;

(6) Physical education;

(7) The fine arts, including music;

(8) First aid, safety, and fire prevention;

(9) Other subjects as prescribed by the non-chartered, non-tax supported school.

(F) Public promotion. Each non-chartered, non-tax suported school shall follow regular procedures for promotion from grade to grade of pupils who have met the school's educational requirements.

(G) Pupil health and safety. Each non-chartered, non-tax supported school shall comply with state and local health, fire, and safety laws.

(H) Pupils attending a non-chartered, non-tax supported school are not entitled to pupil transportation as provided pursuant to section 3327.01 of the Revised Code, and pupils attending a non-chartered, non-tax supported school are not entitled to auxiliary services as provided pursuant to section 3317.06 of the Revised Code.

O.A.C. Section 3301-35-08 further provides that "a copy of said report shall be filed with the Ohio department of education on or before the thirtieth of September of each year." Please be advised that, in accordance with O.A.C. Section 3301-35-08, the Ohio Department of Education ("ODE") will accept from a school desiring to be registered as an "08" school a copy of a certification made by the school in a report to parents that the school meets the above-referenced Ohio minimum standards.

In order for a school to properly "certify" in a report to parents that the school meets the applicable minimum standards, said report must be signed by the individual making such certification, and the full name of said individual must be identifiable (i.e., typed beneath the signature). Accordingly, a school desiring to be registered as an "08 school" for the 2006-2007 school year should, on or before September 30th, 2006, file with ODE a copy of its signed, annual certification to parents.

To properly register as an "08 school," ODE also needs the name of the school, it address, its telephone number (a P.O. Box will not serve as an address), and the school district in which the school is located. This information is required so that ODE and local public school districts can comply with the "Child Find" obligations of the Individuals with Disabilities Education Improvement Act (IDEIA) of 2004.

Certifications should be sent to the attention of Dr. Janet Schilk, Director, Office of Educational Reform, 25 South Front Street, Mail Stop 401, Columbus, Ohio 43215. The facsimile number for the Office of Educational Reform is (614) 995-3869. If you have any further questions, please contact me at (614) 466-4705.

Very truly your,

Matthew J. DeTemple
Chief Legal Counsel


___________________

WHAT CHURCH SCHOOLS IN OHIO SHOULD DO TODAY

The following matters should be addressed today.

1. REVISED LETTER. Assuming that the church has already filed its annual letter with the state, the church school should revise its annual letter as described below, give a copy of the revised letter to your parents, and fax a copy of the revised letter to Dr. Janet Schilk at 614-995-3869.

2. DUE DATE. The revised letter is due on September 30, 2006. Because of the time period in which the department finally changed its position, the due date for filing the revised letter has been extended by the department to October 6, 2006.

3. SIGNED AND CERTIFIED. The Minimum Standards require that the church school "annually certify in a report to the parents of its pupils that the school meets Ohio minimum standards for non-chartered, non-tax supported schools cited in paragraphs (A) to (H) of this rule." Accordingly, I suggest that you make a slight modification in your annual letter's opening paragraph, as follows:

"Our school, which is not chartered or seeking a charter from the State Board of Education because of truly held religious beliefs, hereby certifies in this report to the parents of its pupils that the school meets Ohio minimum standards for non-chartered, non-tax supported schools cited in paragraphs (A) to (H) of this rule, as follows:"

In addition, I recommend that the administrator sign his full name next to where his typed name appears in the heading of this letter.

4. NAME, ADDRESS, AND SCHOOL DISTRICT. LLM has always recommended that the name and address of the school appear on the annual report. In his September 27, 2006, letter, Attorney DeTemple requests, for the department's convenience, that the church school also list "the school district in which the school is located." Since this information could already be determined by the school's address, I see no problem honoring such a request.

I would suggest that the annual report include a new sentence concluding the letter, phrased as follows: "As our school address indicates, our school is located in the _________ school district."


Please call me at 440-964-0236 if you have any questions or problems with respect to this administrative resolution. We wish to thank Pastors Townsend, Hamblen, and Folger, as well as Rev. Daniel Whisner of Ohio Legislative Watch, for their faithful stand in this difficult matter. As we look forward to a prosperous school year, we all give God all the honor and glory.

Last Minute Victory in Church School Crisis

We rejoice in the Lord that the church school crisis in Ohio has been averted at the last minute. For background on this glorious victory, please see the blog dated June 16, 2006, entitled "Beware of NEW State Education Form."

The threat to church schools in Ohio was so serious (one preacher called it "catastrophic") that Lighthouse Legal Ministries had already started preparing a complaint to file in federal district court to seek a preliminary and permanent injunction. Indeed, on the day that the settlement was reached, LLM Attorney Hamilton was preparing to fax a demand letter to the State Superintendent of Public Instruction.

To gain a better understanding of the efforts made by concerned Christian leaders to resolve this serious threat, we hereby reprint the demand letter that was never sent.


DEMAND LETTER that was never sent
________________________________

September 27, 2006

Dr. Susan Tave Zelman
Superintendent of Public Instruction
25 South Front Street
7th Floor
Columbus, OH 43215-4183

and

Dr. Janet M. Schilk, Director
Office of Educational Reform
Ohio Department of Education
25 South Front Street
Mail Stop 401
Columbus, OH 43215-4183

Re: Violation of constitutional rights of church schools and parents
which have a non-chartered, non-tax supported 08 church school

Dear Drs. Zelman and Schilk:

Please know that this office has been retained by Pastor Randall Townsend, Bible Baptist Church, Dayton, Ohio, and by Pastor Kevin Folger, Cleveland Baptist Church, Cleveland, Ohio, which churches have operated and continue to operate a non-chartered, non-tax supported 08 church school which is being threatened with “delisting” by your department and whose parents are being threatened with having their children “considered truant” by your department, despite the church schools’ long standing compliance with the State Minimum Standards as set forth in OAC 3301-35-08. As a consequence, these pastors, churches, and parents seek redress and relief.

1. The State of Ohio had a long and largely successful history of avoiding undue governmental interference with church schools until the 1970s, when the Department of Education issued highly detailed Minimum Standards which were applied to the burgeoning fundamentalist church school movement.

2. In the mid 1970s, Pastor Levi Whisner and several other parents at Tabernacle Christian School in Bradford, Ohio, were prosecuted for truancy violations because they failed to follow the new Minimum Standards which violated their truly held religious beliefs. After their conviction and a couple of appeals, the Ohio Supreme Court issued its landmark decision in State of Ohio v. Whisner, 1 OO3d 105, 47 OS2d 181, 351 NE2d 750 (1976), ruling that that the pervasive Minimum Standards unduly burdened the free exercise of religion.

3. The decision in the Whisner case led to several years of rule making by the State Board of
Education, resulting ultimately in Section 3301-35-08, Minimum Standards for Non-Chartered, Non-Tax Supported Schools. My clients have followed those Minimum Standards, as evidenced by annual letters from the Department of Education.

4. Although the Minimum Standards have continued to exist in substantially the same form for nearly a quarter of a century, and although no new regulations have been passed by the State Board of Education, in her June 9 and August 14, 2006, letters to my clients, Dr. Schilk, on behalf of the Ohio Department of Education, threatened the following actions as of September 30, 2006:

• To “delist” all 08 schools which do not fill out of the information on the state’s new mandatory reporting form, even though much of the information is not required by OAC 3301-35-08.
• That students enrolled in such 08 schools would “be considered truant.”

5. The department’s actions were unsettling, even catastrophic according to one preacher. In the Whisner spirit of seeking an administrative resolution, my clients and other concerned leaders called, wrote, and met with state officials on several occasions, seeking to explain how the department’s actions not only violated the Minimum Standards, but also the constitutional rights of parents and schools.

6. During negotiations with departmental officials, they made frequent reference to two problems which have led them to follow this year’s course of conduct:

• The rising number of homeschoolers posing as non-chartered, non-tax supported 08 schools in order to be eligible for the Post-Secondary Enrollment Option (PSEO).
My clients, which are non-chartered, non-tax supported 08 church schools, believe that the department and local school officials should apply home school regulations to tax-supported homeschoolers, and not violate the constitutional rights of hundreds of 08 church schools and thousands of parents.
• New federal reporting requirements under recent “changes in the Federal IDEIA regulations.” Even assuming that the new federal law requires the states to collect
information from 08 church schools, such information seeking must be done by the least drastic means, not Dr. Schilk’s most drastic means. In the case of one of my clients, the local school district sent a letter to the church school asking if they wanted to participate in the IDEIA program, which would grant federal funds to the church school or its students; the church school merely replied that it chose not to participate because, as an non-chartered, non-tax supported 08 church school, it would violate its truly held religious beliefs to accept government funding.

7. During the course of negotiations, the department apparently recently agreed to eliminate the form requirement, as long as the (unnecessary) information was supplied in a letter.

• While appreciating that concession, my clients continue to believe that such information
is not required under the Minimum Standards and still violates the constitution.
• That concession creates its own scheduling dilemma in that the September 30 deadline
will pass before the department could provide that option to 08 schools and give them time to respond.

Despite the efforts of my clients and other concerned parties, the department continues to threaten the following constitutional rights (see Whisner) of pastors, church schools, and parents:

• Violation of the free exercise of religious liberty.
• Violation of parental right to direct the upbringing and education of their children.

As a result of the egregious violation of the rights of my clients’ constitutional rights, they demand the following:

(1) Payment of $3,000.00 to each client for out-of-pocket expenses, humiliation, embarrassment, and inconvenience suffered as a result of the department’s actions;
(2) Attorney fees to date;
(3) Written assurance that the department will continue to enforce the Minimum Standards as it has in the past and will no longer threaten non-chartered, non-tax supported 08 church schools (and their parents) which are in compliance with the Minimum Standards.

Should your department not be inclined to accept this demand, my clients will have no other option but to proceed with litigation, which will include attorney’s fees pursuant to 42 U.S.C. § 1988. I look forward to your amicable response and successful administrative resolution within two weeks of the date of this letter.

Sincerely yours,



Terry Lee Hamilton

cc: Pastor Randall Townsend
Pastor Kevin Folger
Pastor Keith Hamblen
Rev. Daniel Whisner

___________________________

Praise the Lord that LLM's demand letter was never sent. As we rejoice in this major victory, we still have work to do. Please see the companion blog dated this same date. God bless you!

Monday, September 25, 2006

Seven Do's and Don'ts for Political Campaigning by Churches

At LLM's 12th Annual Legal Seminar on November 14, 2006, we will be covering the IRS crackdown on political activities by churches. In anticipation of the upcoming Congressional elections earlier in November, Attorney Hamilton provides the following Seven Do's and Don'ts for Political Campaigning by Churches.

SEVEN DO'S FOR INDEPENDENT BAPTIST CHURCHES IN ORDER TO KEEP TAX-EXEMPT STATUS

1. DO invite all candidates for a political office to speak to the congregation for the purpose of voter education (all candidates do not have to appear).

2. DO, before each candidate speaks to the congregation, inform the congregation that the views expressed by each candidate are those of the candidate, not the church, and that the church does not endorse any candidate.

3. DO, as a leader of a religious organization, freely express your views on political campaigns in (1) either a public forum outside of the church setting or (2) even to your congregation in the church setting.

4. DO, when making such public comments, inform the listeners or readers that you are speaking for yourself as an individual and that your comments are strictly personal and not intended to represent the church.

5. DO conduct a neutral voter registration drive at the church.

6. DO distribute a compilation of voting records in a non-partisan manner for the purpose of voter education.

7. DO speak out on public policy issues in an educational manner.


SEVEN DON'TS FOR INDEPENDENT BAPTIST CHURCHES IN ORDER TO KEEP TAX-EXEMPT STATUS

1. DON’T make contributions to political campaign funds.

2. DON’T engage in fund raising on behalf of a candidate.

3. DON’T provide a public forum, on a partisan basis, for candidates to express their views.

4. DON’T make public statements either outside the church or within the church in favor of or in opposition to a candidate.

5. DON’T conduct a partisan voter registration drive at the church.

6. DON’T distribute a partisan voters education guide.

7. DON’T place a newspaper ad urging voters to vote for or against a candidate.

Monday, September 18, 2006

Should Churches Be Incorporated?

Summary

Historically, most churches in America have chosen, for both legal and financial reasons, to incorporate rather than remain as an unincorporated association. In the last twenty-five years, good men have raised several objections to the incorporated status of churches in America. The purpose of this article is three-fold: (1) to review the features of unincorporated associations and corporations, (2) to compare the advantages and disadvantages of both, and (3) to answer some frequently asked questions about incorporation. It is not the purpose of this paper to tell a church what to believe on this issue; LLM defends, not dictates, the faith of Independent Baptist churches.

Unincorporated Associations

It is not required in America that churches incorporate. “A church or religious society may exist for all the purposes for which it was organized independently of any incorporation of the body . . . and, it is a matter of common knowledge that many do exist and are never incorporated.” Murphy v. Taylor, 289 So.2d 584, 586 (Ala. 1974), quoting Hundley v. Collins, 32 So. 575 (Ala. 1901). Indeed, most Independent Baptist churches are begun as unincorporated associations, i.e., by the voluntary association of two or more individuals under a common name for a particular purpose.

Historically, because of its informal organization, an unincorporated church had no legal existence, with the following consequences:
• The church could not own or transfer property in its own name; rather, the property had to be held by one or more persons in the church.
• The church could not enter into contracts or other legal obligations; rather, one or more persons in the church would have to enter into such contracts or other legal obligations. If the church defaulted on its mortgage payments, the members who signed the church’s mortgage contract would find that their money, houses, cars, or other property were at risk.
• The church could not sue or be sued; rather, one or more persons in the church would sue or be sued. If someone sued the church for injury from a slip and fall, the members of the church would be sued, placing their money, houses, cars, or other property at risk.

Several states have passed laws to limit the unfortunate legal consequences of the unincorporated association status upon individual members.

Incorporation

The principal aspect of a corporation, distinguishing it from an unincorporated association, is its status as an entity, able to exist and operate as a separate legal being [interestingly, the concept and name of incorporation is derived from the Bible -- the church as the “body” (corpus) of Christ]. The above-described legal shortcomings of an unincorporated church eventually caused most churches to adopt the corporate legal organization, for the following reasons:
• The church corporation could own or transfer property in its own name.
• The church corporation could enter into contracts or other legal obligations. If the church defaulted on its mortgage payments, the members who signed the church’s mortgage contract would not be personally liable.
• The church corporation could sue or be sued. If someone sued the church for injury from a slip and fall, the church corporation, not individual members of the church, would be liable. [NOTE: This discussion of unincorporated associations and corporations should not be construed as an endorsement of litigation; God’s Word in I Corinthians 6 flatly prohibits a Christian from taking a brother or the church to court.]

Since all corporations, including churches, are organized under state law, some Independent Baptist leaders have argued that churches should never incorporate. The following section answers some frequently asked questions on that important issue.

Frequently Asked Questions

1. “Aren’t incorporated churches creatures of the state?” No. Virtually every Independent Baptist church began as an unincorporated association. In due course, some of those already existing churches chose to adopt the corporate status, usually for the reasons mentioned above.

2. “Doesn’t incorporation of the church constitute a subordination of a church to the authority of the state?” No. God created three primary institutions -- the family, government,and the church -- each with its own God-ordained sphere of responsibility. The primary purposes of incorporation -- to own property, to enter into contracts, and to sue or be sued -- are within the sphere of the God-ordained role of government. “The law recognizes the distinction between the church as a religious group devoted to worship, preaching, missionary service, education and the promotion of social welfare, and the church as a business corporation owning real estate and making contracts . . . The former is a matter in which the state or the courts have no direct legal concern, while in the latter the activities of the church are subject to the same laws as those in secular affairs.” Gospel Tabernacle Body of Christ Church v. Peace Publishers & Co., 506 P.2d 1135 (Kan. 1973).

3. “I am Biblically opposed to government licensure of the church. Isn’t incorporation a form of licensure of the church?” No. Licensure is defined as “an administrative lifting of a legislative prohibition.” Under American constitutionalism, churches are not prohibited from forming or operating; there is no governmental agency which approves the creation of a church. Your church started before it was incorporated. As noted above, a “church . . . may exist for all the purposes for which it was organized independently of any incorporation of the body . . . and, it is a matter of common knowledge that many do exist and are never incorporated.”

4. “Aren’t incorporated churches subject to more governmental regulation than unincorporated churches?” No. With respect to taxes, zoning regulations, building regulations, fire regulations, health regulations, and employment regulations, an unincorporated church is subject to governmental laws to the same extent as incorporated churches.

5. “Are there any Biblical grounds for opposing incorporation of churches?” LLM defends, not dictates, the faith of Independent Baptist churches. LLM holds to the Biblical and historical Baptist doctrine of separation of church and state. If and when incorporation creates an unnecessarily intrusive and Biblically unwarranted relationship with the state, the church should reconsider incorporation.

6. “I don’t feel Biblically that my church should be incorporated. Can my church unincorporate itself?” Yes. Just as a church voluntarily chooses to incorporate, a church can voluntarily choose to dissolve its corporate status. LLM suggests that a church consult with an attorney to determine the statutory procedures for dissolving the church’s corporate status and the legal consequences of reverting to its status as an unincorporated association.