Friday, September 29, 2006

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


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!


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