Kentucky State Board for Elementary & Secondary Education v. Rudasill

589 S.W.2d 877, 18 A.L.R. 4th 637, 1979 Ky. LEXIS 295
CourtKentucky Supreme Court
DecidedOctober 9, 1979
StatusPublished
Cited by21 cases

This text of 589 S.W.2d 877 (Kentucky State Board for Elementary & Secondary Education v. Rudasill) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kentucky State Board for Elementary & Secondary Education v. Rudasill, 589 S.W.2d 877, 18 A.L.R. 4th 637, 1979 Ky. LEXIS 295 (Ky. 1979).

Opinion

LUKOWSKY, Justice.

This case requires us to establish the perimeter within which the Commonwealth may regulate the curriculum and instruction in private and parochial schools. The trial court held that the Commonwealth’s textbook approval, teacher certification, and school accreditation requirements, accompanied by the threatened prosecutions of the respondents for alleged violations of the compulsory education laws, violated the first amendment to the federal constitution and section 5 of the Kentucky constitution. We granted a joint motion for transfer of this appeal from the Court of Appeals to this court. Having considered the arguments made by counsel and amici curiae,1 we reverse in part and affirm in part.

[879]*879This action was initiated by several pastors and their churches, parents of children enrolled in non-public schools of those churches, and the Kentucky Association of Christian Schools, Inc. [church schools]. The parties sought a declaratory judgment that the Commonwealth’s standards for approval of private church schools were invalid. The church schools further sought and received below both temporary and permanent injunctive relief preventing the Commonwealth from imposing its approval standards upon the church schools and from prosecuting under the compulsory attendance laws, the church schools or the parents sending children to those schools. The church schools expressly recognized the state’s interest in reasonable health, fire, and safety standards for those schools. Therefore, no issue is presented regarding this form of regulation by the state.

The defendants below, and appellants before this court, are the Kentucky State Board of Elementary and Secondary Education and its chairman, The Kentucky Department of Education, the Superintendent of Public Instruction, and four county boards of education along with their directors of pupil personnel [Commonwealth]. The Commonwealth urges that KRS 156.-160, which directs The Kentucky State Board for Elementary and Secondary Education to “adopt rules and regulations relating to: (7) Approval of private and parochial schools of elementary or high school grades; . .,” and KRS 158.080, which directs private schools to “offer instruction in the several branches of study required to be taught in the public schools,” permit the Commonwealth to apply their standards for accrediting Kentucky Schools, XLIV Educ. Bull. Ser. No. 11, to the church schools, to require that the church school teachers be certified and to insist that textbooks used in the church schools be from the state list of approved textbooks. Attendance at church schools which are not so approved does not qualify the students there enrolled for the exemption from compulsory attendance in the public schools provided by KRS 159.030, in the opinion of the Commonwealth.

Section 5 of the Constitution of Kentucky provides in part “nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; . ” 2 This court has not had occasion to construe this clause of section 5 found within the Kentucky Bill of Rights. But, we have the history of section 5 and of this clause to aid the court in divining the intent of the constitutional draftsmen in settling upon the words they chose to limit the power of the state. The task is now before us. We begin.3

The Kentucky constitutions of 1792,1799, and 1850 each contained a bill of rights [880]*880which provided for religious liberty.4 The language of these sections remained virtually unchanged until the present constitution was adopted in 1891. The delegates to the Constitutional Convention of 1890 did not casually adopt verbatim the language of the bill of rights as it was found in the previous three Kentucky constitutions. Instead, these delegates examined the guarantees afforded the citizens of sister states by their constitutions along with the traditional protections given to and expected by the citizens of Kentucky. Then guided by their own consciences, they drafted a comprehensive bill of rights for the new constitution. It is generally recognized that the convention of 1890 was comprised of competent and educated delegates who were sincerely concerned with individual liberties. The debate on the bill of rights after it was reported from the Committee on Preamble and Bill of Rights lasted nearly two months and covers almost 950 pages in the published proceedings and debates of the convention. It is from this bountiful harvest of history that we must glean the intent and interpretation of section 5.

The language guaranteeing religious liberty in the Commonwealth reported by the Committee on Preamble and Bill of Rights 5 did not include the clause “nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed.” 1 Official Report of the Proceedings and Debates in Convention 300 (1890) [hereinafter cited as Debates]. The clause was specifically adopted by the convention and was the subject of comprehensive pointed debate.

The right of conscience protection relating to schools was the object of three distinct rounds in the debate on the bill of rights. First, the restriction was adopted as an ámendment to the report of the Committee on Preamble and Bill of Rights while the convention sat as a committee of the whole. 1 Debates 846-49. Second, during preparation of the report of the committee of the whole for transmittal to the convention, a substitute section was adopted which omitted the clause. 1 Debates 1025. This fathered a debate between the advocates of “no man shall be compelled to send his child or children to any school” [hereinafter referred to as the Knott amendment] 6 and of “no man shall be compelled to send his child to any school to which he may be conscientiously opposed”7 [hereinafter referred to as the Beckner amendment]. 1 Debates 1027-28; 1034^-35. Neither amendment was adopted for the report of the committee of the whole, but this debate served to frame the issue of compulsory education for the third debate. When the report of the committee of the whole came before the delegates in convention, the issue was again debated, and the convention adopted the Beckner language which is present in section 5. 1 Debates 1135-45; 1243.

The debate over section 5 centered on whether compulsory education should be constitutionally proscribed. The first seeds of intent were sown in the first debate:

[881]*881“Mr. BECKNER. As is well-known, there is a large element of a great religious organization, to which many persons in Kentucky belong, opposed to the American system of public schools. Their opposition arises from the fact that there is no religious instruction given in those schools. They are as conscientious in their opposition to those schools as I am in my belief in that system. I am anxious for this Convention to do whatever can be done to render our system of public schools acceptable to all our people, and to remove every objectionable or obnoxious feature. It is believed by many that the time will come when we will have compulsory education.

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Bluebook (online)
589 S.W.2d 877, 18 A.L.R. 4th 637, 1979 Ky. LEXIS 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kentucky-state-board-for-elementary-secondary-education-v-rudasill-ky-1979.