Text of Religious Freedom Protection Act Suit

 

Dr. Mark Newborn and Maryalice Newborn, Plaintiffs

V.

Franklin Regional School District,

and Pamela Pulkowski, in her official capacity as Superintendent of Franklin Regional School District, Defendants

COMPLAINT

The plaintiffs, Dr. Mark and Maryalice Newborn, who reside at 2371 Adams Court, Export, PA 15632, hereby make claim for declaratory and injunctive relief pursuant to the recently enacted Religious Freedom Protection Act (71 P.S. § 2401), the First and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983.

1. Dr. and Mrs. Newborn are the parents of children who are of compulsory school age pursuant to 24 P.S. § l3-1326.

2. Dr. and Mrs. Newborn reside in Westmoreland County and in Franklin Regional School District.

3. Defendants are Franklin Regional School District, a school district organized and existing under the Pennsylvania School Code, and Pamela Pulkowski, its superintendent, who is being sued in her official capacity.

4. Defendants are charged with enforcement of compulsory school attendance laws and with administering “home education programs” pursuant to 24 P.S. § 13-1327.1 (“home education statute” or “Act 169”).

5. Dr. and Mrs. Newborn have homeschooled their children based on sincerely held religious beliefs for 11 years.

6. In a certified letter dated August 1, 2003, (return receipt requested), Dr. and Mrs. Newborn notified defendants that provisions of the home education statute imposed substantial burdens on the free exercise of their religion.

7. In their August 1, 2003 letter, Dr. and Mrs. Newborn sought the protection of the recently enacted Religious Freedom Protection Act, 71 P.S. § 2401, et seq. (RFPA).

8. The RFPA forbids state and local government agencies from substantially burdening a person’s free exercise of religion, including a burden which results from a statute of general applicability, unless the burden is justified by a compelling interest and is the least restrictive means of furthering the compelling interest. 71 P.S. § 2404.

9. In their August 1, 2003 letter, Dr. and Mrs. Newborn provided defendants with a detailed explanation of their religious faith regarding the education of their children and how the home education statute imposes substantial burdens on the free exercise of their religion.

10. In their August 1, 2003 letter, Dr. and Mrs. Newborn assured defendants that they would provide their children with a thorough education because they are accountable to God to do so.

11. Dr. and Mrs. Newborn’s religious beliefs acknowledge that the civil government may require them to educate their children, but, according to their religious belief, the civil government lacks jurisdiction to approve or administratively supervise the education they provide.

12. In short, they believe that the religious education that they provide their children cannot become excessively entangled with a government agency.

13. It is a specific tenet of Dr. and Mrs. Newborn’s religious faith, rooted in their understanding of the Bible, that God has given parents jurisdiction and authority over the education of their children.

14. It is a specific tenet of Dr. and Mrs. Newborn’s religious faith, rooted in their understanding of the Bible, that it would be sinful for them to engage in conduct or expression that would cede their parental jurisdiction and authority to the civil government.

15. It is a specific tenet of Dr. and Mrs. Newborn’s religious faith, rooted in their understanding of the Bible, that parents are charged by God to raise their children in the nurture and admonition of the Lord, which is the purpose of all education.

16. It is a specific tenet of Dr. and Mrs. Newborn’s religious faith, rooted in their understanding of the Bible, that it would be sinful for them to engage in conduct and expression that would seek approval from the secular civil government for the holy and sacred education they are duty-bound by God to provide their children.

17. The home education statute requires Dr. and Mrs. Newborn to engage in conduct and expression that substantially interferes with specific tenets of their religious faith that God has placed them in authority over their children’s education.

18. The specific tenets of Dr. and Mrs. Newborn’s religious faith regarding the education of their children are religious in nature, as opposed to merely philosophical or personal.

19. Dr. and Mrs. Newborn provided defendants with an affidavit signed by Pastor Peter Hipple, attesting that the plaintiffs’ beliefs regarding the education of their children are based on the Bible and are religious in nature.

20. The specific tenets of Dr. and Mrs. Newborn’s religious faith regarding the education of their children are sincerely held.

21. Dr. and Mrs. Newborn provided defendants with four letters from friends who vouched for the sincerity of their religious faith.

22. The home education statute requires that Dr. and Mrs. Newborn cede jurisdiction to the school district and become excessively entangled with this government agency relative to their religious education in that they must file an affidavit and course objectives with the defendants before the beginning of each school year.

23. The home education statute requires that Dr. and Mrs. Newborn cede jurisdiction to the school district and become excessively entangled with this government agency relative to their religious education in that they are required to keep a detailed log of reading materials used and samples of their children’s work and to submit it all to defendants for a discretionary administrative review.

24. The home education statute requires that Dr. and Mrs. Newborn cede jurisdiction to the school district and become excessively entangled with this government agency relative to their religious education in that the home education statute gives the superintendent authority, jurisdiction, and subjective discretion to approve the appropriateness of the religious education Dr. and Mrs. Newborn provide their children.

25. In a letter dated November 21, 2003, defendants’ agent informed Dr. and Mrs. Newborn that defendants did not believe that the home education statute imposed substantial burdens on the free exercise of their religion.

26. Unless Dr. and Mrs. Newborn are exempted from the provisions of Act 169 that compel conduct and expression that violates a specific tenet of their religious faith, they could be subject to criminal prosecution.

27. The defendants’ letter of November 21, 2003 suggests that they are considering truancy prosecution because Dr. and Mrs. Newborn did not provide them with an affidavit or an outline of education objectives.

28. Published academic studies have shown that children who are educated at home score significantly higher on nationally-normed standardized achievement tests than their peers who are educated in the public schools.

29. Published academic studies have shown that there is no correlation between the academic performance of homeschooled students and the degree of regulation required by the state.

30. The laws of numerous states are much less restrictive than Act 169 and homeschooled students in those states perform approximately as well or better than those in Pennsylvania.

COUNT I

Religious Freedom Protection Act

31. Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though they were set forth fully herein.

32. The RFPA forbids state and local government agencies from substantially burdening a person’s free exercise of religion, including a burden which results from a statute of general applicability, unless the burden is justified by a compelling interest and is the least restrictive means of furthering the compelling interest. 71 P.S. § 2404.

33. The General Assembly specifically intended that the protections afforded by the RFPA extend to state statutes enacted before the enactment of the RFPA. 71 P.S. § 2402(2).

34. The RFPA defines “substantially burden” in part as “[c]ompel[ing] conduct or expression which violates a specific tenet of a person’s religious faith.” 71 P.S. § 2403(4).

35. The home education statute compels conduct and expression that violate specific tenets of Dr. and Mrs. Newborn’s religious faith. Under this statute the Newborns are subject to truancy prosecution for following the tenets of their faith and such prosecution has been threatened. Thus, by definition, the statute imposes a substantial burden on the exercise of the Newborn’s faith.

36. The RFPA specifically authorizes defendants to remedy the substantial burden on Dr. and Mrs. Newborn’s free exercise of religion. 71 P.S. 2405(d).

37. Defendants have refused to remedy the substantial burden.

38. The RFPA provides that a person whose free exercise of religion has been substantially burdened or likely will be burdened in violation of section 2404 may assert that violation against an agency as a claim or defense in any judicial or administrative proceeding, 71 P.S. § 2405(a) and grants this court jurisdiction, 71 P.S. § 2405(f), to award declaratory and injunctive relief.

WHEREFORE, plaintiffs Dr. and Mrs. Newborn respectfully request that the Court enter an order:

(a) declaring that Act 169 compels conduct and expression that violate specific tenets of Dr. and Mrs. Newborn’s religious faith;

(b) preliminarily and permanently enjoining defendants, their agents and successors from enforcing Act 169 against plaintiffs and from prosecuting them under the compulsory attendance laws; and

(c) directing such other and further relief as may be appropriate.

COUNT II

Act 169 Violates the Due Process Clause

of the Fourteenth Amendment

(42 U.S.C. § 1983)

39. Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though they were set forth fully herein.

40. The Due Process Clause of the Fourteenth Amendment forbids states from enacting laws that are vague.

41. Statutes are void for vagueness if they do not set reasonably clear guidelines for enforcement, thus inviting arbitrary and discriminatory enforcement.

42. Act 169’s portfolio requirement vests defendants with unbridled discretionary review of plaintiffs’ religious education program to determine whether appropriate education has occurred.

WHEREFORE, plaintiffs Dr. and Mrs. Newborn respectfully request that the Court enter an order:

(a) declaring that Act 169’s portfolio requirement is void for vagueness on its face and as applied to plaintiffs’ religious education program and is therefore unconstitutional under the Due Process Clause of the Fourteenth Amendment;

(b) preliminarily and permanently enjoining defendants, their agents and successors from enforcing Act 169 against plaintiffs and from prosecuting them under the compulsory attendance laws; and

(c) awarding counsel fees to plaintiffs pursuant to 42 U.S.C § 1988.

(d) directing such other and further relief as may be appropriate.

COUNT III

Act 169 Violates the Due Process Clause of the Fourteenth Amendment by Failing to Provide a Neutral Magistrate

(42 U.S.C. § 1983)

43. Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though they were set forth filly herein.

44. The Due Process Clause of the Fourteenth Amendment forbids fact- finding procedures that could result in the loss of liberty unless the government decision-maker is neutral. One requirement of neutrality is that the decision-maker can have no financial stake in the outcome of the decision.

45. Act 169 places the district superintendent in charge of deciding whether a home education program is providing an appropriate education.

46. If the superintendent determines that appropriate education is not occurring, the home education must cease.

47. The amount of state funding a school district receives is determined, in part, by how many students attend the schools in that district.

48. Superintendents, therefore, are not neutral because they stand to gain state funding for their districts by discouraging or disqualifying home education programs.

WHEREFORE, plaintiffs Dr. and Mrs. Newborn respectfully request that the Court enter an order:

(a) declaring that Act 169’s requirement for a superintendent’s review of the contemporaneous log and portfolio is unconstitutional on its face and as applied to plaintiffs’ religious education program under the Due Process Clause of the Fourteenth Amendment;

(b) preliminarily and permanently enjoining defendants, their agents and successors from enforcing Act 169 against plaintiffs and from prosecuting them under the compulsory attendance laws; and

(c) awarding counsel fees to plaintiffs pursuant to 42 U.S.C § 1988.

(d) directing such other and further relief as may be appropriate.

COUNT IV

Act 169 Violates the Due Process Clause of the

Fourteen Amendment’s Guarantee of Privacy

(42 U.S.C. § 1983)

49. Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though they were set forth fully herein.

50. The liberty clause of the Fourteenth Amendment protects Dr. and Mrs. Newborn’s right to privacy.

51. The home education statute requires Dr. and Mrs. Newborn to maintain a detailed log of the titles of books read by their children and samples of their children’s work and to submit it all to the superintendent for a subjective, discretionary review of their religious educational activities.

52. Requiring the disclosure of the above information violates Dr. and Mrs. Newborns’ right to privacy.

WHEREFORE, plaintiffs Dr. and Mrs. Newborn respectfully request that the Court enter an order:

(a) declaring that Act 169’s requirement for a superintendent’s review of the contemporaneous log and portfolio is unconstitutional on its face and as applied to plaintiffs’ religious education program under the Due Process Clause of the Fourteenth Amendment;

(b) preliminarily and permanently enjoining defendants, their agents and successors from enforcing Act 169 against plaintiffs and from prosecuting them under the compulsory attendance laws; and

(c) awarding counsel fees to plaintiffs pursuant to 42 U.S.C § 1988.

(d) directing such other and further relief as may be appropriate.

COUNT V

Act 169 Violates the Free Speech Clause of the First Amendment

(42 U.S.C. § 1983)

53. Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though they were set forth fully herein.

54. The Free Speech Clause of the First Amendment to the United States Constitution forbids state statutes that impose prior restraints or require a governmental license to engage in speech. Particularly, the government cannot demand the right to review prior speech as a condition of exercising the right to engage in future speech.

55. Teaching children is speech protected by the First Amendment.

56. For the first year of home education, Act 169 imposes prior restraint by requiring parents to file a sworn affidavit that includes an outline of course objectives before they may commence teaching their children.

57. For the second year and beyond, Act 169 imposes a requirement of obtaining the discretionary approval of the superintendent of their past teaching, in order to engage in further, future acts of freedom of speech for the following year.

58. These requirements violate the parents’ right of freedom of speech protected by the First and Fourteenth Amendments to the United States Constitution.

WHEREFORE, plaintiffs Dr. and Mrs. Newborn respectfully request that the Court enter an order:

(a) declaring that Act 169’s requirement that parents submit an outline of proposed course objectives by subject area is unconstitutional on its face and as applied to plaintiffs’ religious education program under the Free Speech Clause of the First Amendment;

(b) preliminarily and permanently enjoining defendants, their agents and successors from enforcing Act 169 against plaintiffs and from prosecuting them under the compulsory attendance laws; and

(c) awarding counsel fees to plaintiffs pursuant to 42 U.S.C § 1988.

(d) directing such other and further relief as may be appropriate.

COUNT VI

Act 169 Violates the Establishment Clause of the First Amendment

(42 U.S.C. § 1983)

59. Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though they were set forth fully herein.

60. The Establishment Clause of the First Amendment prohibits excessive government entanglement with religion.

61. It is a violation of the Establishment Clause for civil government to conduct discretionary reviews of the content of the education, to legally authorize, or to approve religious education.

62. Act 169’s contemporaneous log and portfolio requirements, as applied to plaintiffs’ religious home education program, require excessive entanglement with religion by charging defendants with making a subjective and discretionary determination whether plaintiffs’ religious education program is “appropriate” based on a discretionary review of the log and portfolio of work.

WHEREFORE, plaintiffs Dr. and Mrs. Newborn respectfully request that the Court enter an order:

(a) declaring that Act 169’s requirement for a superintendent’s review of the contemporaneous log and portfolio is unconstitutional under the Establishment Clause of the First Amendment, as applied to their religious education program;

(b) preliminarily and permanently enjoining defendants, their agents and successors from enforcing Act 169 against plaintiffs and for prosecuting them under the compulsory attendance laws; and

(c) awarding counsel fees to plaintiffs pursuant to 42 U.S.C § 1988.

(d) directing such other and further relief as may be appropriate.

COUNT VII

Act 169 Violates the Free Exercise Clause of the First Amendment

(42 U.S.C. § 1983)

63. Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though they were set forth fully herein.

64. Generally applicable, neutral state statutes that impose burdens on religiously motivated conduct that is reinforced with the right of parent to direct the education of their children violate the Free Exercise Clause of the First Amendment and must be supported by a compelling state interest and employ the least restrictive means.

65. Act 169 imposes substantial burdens on these “hybrid” rights by compelling conduct and expression that violate specific tenets of Dr. and Mrs. Newborn’s religious faith in a manner which burdens the exercise of their religious faith without any compelling justification therefore and without following the least restrictive means of ensuring any governmental interest.

WHEREFORE, plaintiffs Dr. and Mrs. Newborn respectfully request that the Court enter an order:

(a) declaring that Act 169’s contemporaneous log and portfolio requirements are unconstitutional on their face and as applied to plaintiffs’ religious education program under the Free Speech Clause of the First Amendment;

(b) preliminarily and permanently enjoining defendants, their agents and successors from enforcing Act 169 against them and from prosecuting them under the compulsory attendance laws; and

(c) awarding counsel fees to plaintiffs pursuant to 42 U.S.C § 1988.

(d) directing such other and further relief as may be appropriate.

Counsel of Record for the Plaintiff Richard Winkler, Esq. Supreme Court ID #23481 123 N. Franklin St. Titusville, PA 16354-1760 (814) 827-9002

Counsel Pro Hac Vice for the Plaintiffs Michael P. Farris, Esq. James R. Mason, III, Esq. Home School Legal Defense Association One Patrick Henry Circle Purcellville, VA 20132 (540) 338-5600 y

 

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