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RANKINS v. STATE BD. OF ELEM. & SEC. EDUC.
637 So.2d 548 (1994)
Court of Appeal of Louisiana, First Circuit.
March 17, 1994.
We first consider the scope of BESE's authority over non-public schools. La. Const. art. VIII § 4 gives BESE the limited power to approve "a private elementary, secondary, or proprietary school with a sustained curriculum or specialized course of study of quality at least equal to that prescribed for similar public schools...." According to the testimony of Louisiana State Superintendent of Education, Raymond G. Arveson, the key factor in approving a non-public school is whether the school offers the 23 Carnegie units. In granting or withholding approval, BESE may only compare the quality of the curriculum of the non-public school with the mandated curriculum of the public schools. This limited constitutional authority to approve non-public schools does not empower BESE to mandate the contents of the courses taught or to require that the students pass the GEE prior to graduation.
BESE's authority over non-public schools is further constrained by the United States Constitution. The United States Supreme Court has held that the First and Fourteenth Amendments prevent the state from intruding into family decisions in the areas of religious freedom and parental control over the rearing of children.The right of parents to choose the means and methods whereby their children may be educated free from unreasonable or excessive government interference is a liberty protected by the Fourteenth Amendment. In Pierce v. Society of Sisters,268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), the Court set forth the following: Under the doctrine of Meyer v. Nebraska,262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Pierce, 268 U.S. at 534-35, 45 S.Ct. at 573. The Court reaffirmed the constitutional right of parental choice in Wisconsin v. Yoder,406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Therein the Court acknowledged that the state may "impose reasonable regulations for the control and duration of basic education." Id. at 213, 92 S.Ct. at 1532. However, the Court limited this power by observing that reasonable regulations must "yield to the right of parents to provide an equivalent education in a privately operated system." Id. The Court then concluded: [t]hus, a State's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, "prepare [them] for additional obligations."
1. Prior to implementation of the GEE, the only academic requirement for high school graduation was the successful completion of 23 Carnegie units. The required units presently consist of 4 units of English, 3 units of mathematics, 3 units of science, 3 units of social studies, 2 units of health and physical education, ½ unit of computer literacy, and 7½ units of electives. Louisiana Department of Education, Louisiana Handbook for School Administrators (revised November 1992). 2. In answering a certified question from the United States Fifth Circuit Court of Appeals, the Aguillard court discussed the meaning of the phrase "as provided by law" contained in La. Const. art. VIII § 3(A). The court concluded that according to this phrase, "the Board shall supervise and control the public elementary and secondary schools as provided `by the legislature' or `by statute.'" Id. at 708, see also Board of Elementary and Secondary Education v. Nix,347 So.2d 147, (La.1977) (The Louisiana Supreme Court interpreted La. Const. art. VIII § 3(A) to mean that although the legislature shall provide by law for the supervision, control, and budgetary power of the board, the legislature cannot regulate and limit BESE's constitutional grant of power to supervise, control, and budget education.) 3. House Concurrent Resolution 204 of 1989 provides some evidence of the legislature's intent regarding the GEE. In April of 1989, BESE adopted a resolution requiring all Louisiana students, public and non-public, to pass the GEE before obtaining a state high school diploma. In response to this resolution, the legislature adopted House Concurrent Resolution 204 which expresses the legislature's intent to limit the applicability of the GEE to public school students. Following this action by the legislature, BESE adopted a new policy which stated that the GEE would be mandatory for public students and optional for non-public students.
This resolution is significant in that the legislature did not disapprove of BESE's plans to make the GEE a requirement for Louisiana's public school students. 4. Plaintiffs attempt to distinguish the Debra P. case from the present case by noting that "the Louisiana State Legislature has expressed no interest in the implementation of a graduation exit exam which is different from the State of Florida." In light of our conclusions in the first portion of this opinion, this distinction does not affect the application of the Debra P. holdings to the facts of this case. 5. The Fifth Circuit remanded the case to hear evidence on whether Florida's exit exam tested materials actually taught in Florida's public schools and to determine whether the exam had a racially discriminatory impact. Id. at 408. Following the district court's decision on remand, the case was appealed to the Eleventh Circuit Court of Appeals. Debra P. v. Turlington,730 F.2d 1405 (11th Cir.1984). The Eleventh Circuit affirmed the district court's findings that the Florida students were taught tested skills, that the exam did not discriminate, and that the exam would help remedy the vestiges of past segregation. Id. at 1416-17. 6. Students are afforded four opportunities to take and pass the Science and Social Studies portions of the exam and they have six opportunities to take and pass the other sections. 7. Home study students who return to the public school system in the eleventh grade are not required to take three of the five parts of the GEE and students returning in the twelfth grade are not required to take any part of the exam. 8. Persons obtaining a GED are not required to take any part of the GEE. 9. BESE maintains a policy of optional participation for approved non-public schools. 10. There is no evidence in the record which attempts to set forth the number of non-parochial schools in Louisiana vis a vis parochial schools. Therefore, under the equal protection analysis, the students are classified as public versus non-public.
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