Summary of Legal Points Involved in Current Warren County
School Board Policy

The following summary of legal points involved in the current Warren County School Board policy relating to transfer and prospective transfer students from Christian schools has been provided by the law firm of Gibbs & Craze, P.A.

. Remind the public school officials that the Christian school from which the student is transferring is recognized by law as meeting the requirements for compulsory attendance. These schools are just as legitimate as the public schools and are not required to be accredited. Therefore, the students from these lawful schools schould not be discriminated against because the school chose to exercise a right recognized by the law, i.e. operating without state accreditation.

. School officials are also reminded that the U.S. Supreme Court has recognized that a parent's right to direct the education of their child is constitutionally protected. The Court has recognized that "parents and guardians, as part of their liberty, might direct the education of children by selecting reputable teachers and places." (Pierce, L.Ed. 1070 ( 1925)) This fundamental right has been subsequently upheld in Wiscoirsin v. Yoder, 406 U.S. 205 (1972) and Employment Division v. Smith, 494 U.S. 872 (1990).

. Schools are reminded that they may not discriminate agalnst a student on the basis of religion. Recent Supreme Court decisions have emphasized that public institutions are required to acoommodate religious beliefs and are not per itted to demonstrate hostility toward religion. In Board of Ecucation v. Mergens, 496 U.S. 226 (1990), Justice O'Connor noted that if the state does not treat religious persons in the same way as others, it would "demonstrate not neutrality but hostility toward religion. The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities."

· We point out that the public school/nonpublic school distinction for additional testing requirements is not based on objective, verifiable, or justifiable criteria. It is challenged, instead, by objective and verifiable criteria demonstrating student performance at higher education and career levels that is independent of whether the student attended a public or nonpublic school. The nature of the school does not, in and of itself, determine the quality of the education received.

. For many of the same reasons as given for acceptance of credits, CLA has argued that the student should be placed in the grade level indicated by the scores received on a nationally normed standardized test. The use of a test developed locally by the school and based upon the curriculum taught by the teachers at that school is prejudicial to the transferring student, and is without merit. Placement based on a nationally normed standardized test protects both the school and the student.

· The basis on which the discrimination is occurring is not relevant to the classification. Both public schools and nonpublic schools have gradations of instructional excellence that vary from school to school. The quality of education being offered at any given school is not determined by whether it is public or nonpublic, accredited or nonaccredited. The quality of education can vary between public schools in a single district or even between various grade levels in a particular school. In any given locality, the public school or nonpublic nature of the school is irrelevant in identifying the quality of the education offered.