​Some Legal Considerations for Operating Boards in Adventist Schools (K-12)

“Thank you, but we have decided not to participate.” Such a short phrase from the local church pastor, but what a challenge it presented to me as conference superintendent of education! Because I was responsible for nearly 30 schools scattered throughout two states, I was frantically trying to meet the deadline for the new U.S. government’s mandatory asbestos inspection requirement.¹ The regulation applied to all schools, including private and religious institutions. Some of the superintendents in other conferences took the extensive training needed to become certified inspectors. They thought they could save a great deal of money by doing the inspections themselves. But I had a different concern―the liability I would assume if I conducted the inspections required by the law. If I made a mistake, what penalties would accrue to me personally? There was also a report to write. I had enough paperwork to do as it was without adding the asbestos documentation to it. But it was primarily the legal liability that drove my decision to outsource this task.

I found a small engineering firm that had all the certificates needed to conduct the inspection, and in addition, was bonded.² The company was willing to inspect all of our Adventist schools, even though they were spread around two states. Company officials gave us what I considered to be a reasonable offer, considering the travel that would be required to inspect each school. In addition, the contract guaranteed that they would provide us with inspection reports that would satisfy the bureaucratic requirements. Now, the problem I faced was how to pay for all the work to be done. Since I had no conference budget for the asbestos inspections, I had the unhappy task of informing the local school operating committees that they would have to pay a proportional part of the contract, based on the square footage of each school building. That is what initiated the pastor’s negative response to my communication regarding the cost of the mandated asbestos inspections. Learning that the school would have to pay for this service and comply with the state regulation was not good news for either the pastor or his congregation.

Money seems always to be a scarce resource in nonpublic schools, and Adventist schools are no exception. Thus, when the conference imposes extra costs on the local school, it frequently provokes an emotional response. Fortunately, the pastor was a reasonable person, and I was able to convince him that Adventist schools did have to comply with the law. Although this seems obvious, I have, on a number of occasions, been confronted by well-meaning members who truly believe that religious schools are exempt from most legal requirements that public schools must follow.³

This article will identify some aspects of the law that may impact the decision-making process for board members of Seventh-day Adventist schools. It will focus on raising awareness rather than providing deep legal analysis. Based on my years of experience in school administration, as well as my experience as a member of school boards in both Adventist and public schools, I will address five areas of law. They are government regulation, student discipline, employee relations, child abuse, and government aid to Adventist schools.⁴

Power of the Government

It has been well settled, in a variety of countries, that private and religious schools are subject to reasonable regulation by various government entities, although there are generally some limits on what governments can do to control nonpublic schools. In addition to the United States, many other countries exercise control over private or independent schools. One example is the Republic of South Africa, where the law specifically requires that private schools must meet all learning outcomes and assessment standards prescribed in the national curriculum statements for general education and training.⁵ The landmark ruling regarding private schools was set for the United States by its Supreme Court nearly a century ago in its decision Pierce v. Society of Sisters,⁶ which struck down an Oregon law that required all children to attend public school. The high court based its decision on the Constitution’s 14th Amendment guarantee of property rights and liberty.

Pierce may be considered America’s Magna Carta for nonpublic schools.⁷ Writing for a unanimous court, Associate Justice James McReynolds stated it clearly: “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.”⁸ However, the decision also stated that “no question is raised concerning the power of the state to reasonably regulate all schools, to inspect, supervise, and examine them, their teachers and pupils, to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught.”⁹

Government Regulation

One of the marks of American education is that it does not have a single, national system, although there are national regulations that schools must follow. Rather, there are 50 systems, with each state being a law unto itself. In addition, the schools in Washington, D.C., Puerto Rico, and other territories have their own unique educational organizations. So, it is essential for school boards to be aware of the laws impacting nonpublic schools in their state. Some states are very rigid in their requirements, while other states have very few or no regulations

impacting private schools. There are, however, some nationwide laws that apply to educational institutions. The asbestos situation was a federal law enacted after several years of growing concern about health hazards posed by the ubiquitous compound.¹⁰ The laws are uniformly applied throughout the U.S.

Student discipline is an area of special interest, because of the contrast between public and private schools. In the U.S., state regulations affecting private schools may not be arbitrary. They must be related to some legitimate goal or compelling interest of state government.

U.S. states have enacted a number of regulations applied to schools, including private schools, in an attempt to ensure that children become well-educated, which is necessary for the continued prosperity of the state. The most powerful tool is the compulsory school attendance laws of each state. Either in the state Constitution or in a separate statute, the state defines what constitutes a school. Some states require schools, including nonpublic schools, to utilize only teachers meeting the standards set by the state for teacher certification. In those states, private schools that do not have all their classroom instructors certified are not defined as schools. Thus, parents who enroll their children in such institutions do not meet the requirements of the compulsory school attendance law.¹¹ This puts the burden on families because such laws are written to hold parents responsible to see that their children attend a school that meets the definition provided in the statute.

The Supreme Court of Nebraska upheld the state law that applied the teacher-certification requirement to nonpublic schools, including religious schools. The court adhered to the established legal principle in State v. Faith Baptist Church,¹² which attracted national attention. The school board had refused to certify teachers, provide information regarding the children attending the institution, or submit their curriculum to the state for approval. The state high court found that all these requirements were necessary for the state to carry out its responsibility of seeing that all children have access to appropriate education. Other courts have also upheld the right of the state to regulate private nonpublic schools in such matters as submitting their curriculum for approval,¹³ and requiring that certain necessary information be made available to the state.¹⁴

Limits to Government Control

Nonpublic schools are not without legal protection. U.S. courts have limited authority in regulating such schools. In Meyer v. Nebraska,¹⁵ the United States Supreme Court ruled that a state regulation prohibiting the teaching of foreign language in the elementary school was unconstitutional. State regulations cannot be arbitrary and must have a reasonable relationship to some legitimate purpose within the right of the state to impose legal requirements on its population.

The Commonwealth of Kentucky at one time required nonpublic schools to use textbooks on the state approved list. The Commonwealth’s Supreme Court held that such regulations would essentially eliminate the differences between public and private schools, and thus violated the state constitution¹⁶ and could not be applied to religious schools.

In a most egregious overreach, the Ohio state board of education published minimum standards applicable to private as well as public schools. The leader of one religious school objected, noting that the standards, along with their explanatory information, were based on a philosophy of secular humanism that was antagonistic to the religious beliefs espoused by the school. In striking down these regulations, the Supreme Court of Ohio relied on the Free Exercise clause of the First Amendment of the U.S. Constitution.¹⁷ Further, the court found no state interest of sufficient magnitude to override the constitutional protection afforded the school.

This protection of religious schools from the long arm of the state does not exist in a number of countries. In Jamaica, for example, the Education Act provides for on-site inspection of independent schools by an agent of the government.¹⁸ South Africa requires that the standards at independent (private) schools must not be "inferior to standards at comparable public educational institutiions.”"¹⁹ A document describing private education in the countries forming the European Union stated that both private schools that receive funds from the government (grant-aided) and those that receive no financial assistance from the government are “subject to certain forms of state control.”²⁰ It further noted that the “absence of funding does not prevent the state from exercising control over private education institutions.”²¹

It is imperative that members of Adventist school boards be aware of the regulations that apply to private schools in their country, state, or province. They also should support the conference superintendent and the principal in their attempt to keep our schools in compliance with the state/provincial legal requirements relating to education. While most of these illustrations have involved U.S. private schools, every nation has its own unique regulations impacting private and religious schools. While there are many commonalities, members of governing boards are well advised to inform themselves regarding those regulations distinctive to their own country and state/province.

Matters of Discipline

Student discipline is an area of special interest, because of the contrast between public and private schools. In the U.S., state regulations affecting private schools may not be arbitrary. They must be related to to some legitimate goal or compelling interest of state government. The students enrolled in American public schools, have constitutionally protected rights,¹⁹ and cannot be stripped of or denied those rights. They thus retain the right to freedom of speech, including symbolic speech.²²

However, the right to free speech is not absolute. It may be restricted if it presents a clear and present danger of causing material and substantial disruption to the educational process. Public schools have the right of prior review (and thus prior restraint) of publications sponsored by the school,²³ but not those published by entities outside of the school²⁴ (because they are not under school sponsorship). Also, public schools do not need probable cause to search student effects, including lockers. Rather, the court has imposed a reasonable suspicion standard.²⁵ When it comes to disciplinary action such as expulsion,²⁶ or suspension for 10 days or more,²⁷ students in public schools must be afforded procedural due process.

In our Adventist schools and other private schools in the United States, students are not protected by these constitutional provisions. Rather, there is a contractual relationship that determines the processes of student discipline. However, other countries put restrictions on private schools regarding student discipline. South Africa, for example, requires “fair procedures” in cases of student expulsion.²⁸

In private schools in the U.S., the student handbook essentially becomes the contract between the school and the parents regarding the rules to be enforced and the procedures for discipline when a student violates those rules. In an old case,²⁹ the Supreme Court of North Carolina ruled that when students enroll in nonpublic schools, there is an implied promise that they will comply with reasonable rules and regulations, and that school officials have the authority to expel them as long as the disciplinary actions taken are not maliciously or arbitrarily done.

In an often-cited case, a U.S. federal district court ruled that students in nonpublic schools have no right to procedural due process in disciplinary matters.³⁰The 14th Amendment makes provisions for constitutional restrictions that apply to state actors. Private schools do not function as part of the state system of public schools and thus are engaged in private action for which there is no constitutional protection. This doctrine has been further clarified in other cases. An appellate court in Louisiana found that private schools have nearly absolute authority and power to control their own disciplinary processes. If there is even the “color” of due process,³¹ it meets the standard of the law. In another case, the federal trial court in Delaware noted that the relationship between private schools and the parents of an expelled student was contractual in nature. In view of the school’s basic procedural fairness, the court upheld the right of the school to expel the student.³² The concept of fundamental fairness in student discipline is a standard that has been followed by other U.S. jurisdictions.³³

Student Handbook

Every Adventist school should have a student handbook or school bulletin that identifies the rules of behavior that are to guide student life as well as the procedures to be followed when students step outside those rules. If the students’ off-campus behavior is of interest to the board or constituent churches that support the school, these expectations should be clearly stated. Most religious schools disallow any behavior that they believe will bring their faith community into public disrepute. The U.S. courts usually uphold the right of school officials to enforce such rules.³⁴ School regulations based on our religious worldview as well as the procedures utilized to enforce them are not subject to American courts’ judicial review.³⁵

In the Adventist system, local schools have much discretion regarding the standards for enrollment and procedures for discipline. In some schools, the authority to expel a student resides with the principal. Other schools may require a faculty committee to make that decision, while still others place authority for expulsion of students with the board. Some schools have an appeals process that is available to parents/students subsequent to severe disciplinary action such as expulsion. There is no best way to do it. Local school operating committees are best suited to interpret the culture of their own faith community and to identify the limits of acceptable student behavior. The important legal consideration is the necessity for school administrators to follow the school’s established process, which should be published in the school handbook.³⁶

Policies Relating to School Employees

As with students, the relationship of our Adventist schools to teachers and other employees is contractual in nature rather than based on constitutional rights. While American public school teachers have constitutional rights, no such protections are available for Adventist school employees. The Adventist denomination has a unique organizational structure that provides a system of dual management, consisting of the local school operating committee and the conference K-12 Board of Education.³⁷ The teacher’s employment contract is with the conference; yet in most cases, the local operating committee has major input into who is hired to work at their school. The conference superintendent is tasked with determining the professional eligibility of a candidate, and in consultation with the school principal, ascertaining his or her fit with the academic and spiritual needs of the school. The school committee generally is mostly concerned with the cultural and personality congruence with the congregation and especially with parents.

While the employment contract is with the local conference, the union conference education code spells out the terms of that contract. In some unions, employees are given “at will” contracts that can be terminated by either party. Usually this status is given to classified (nonteaching or noncertified) staff rather than professional educators. The at-will status gives the conference a great deal of flexibility but provides very little security to the employee. Some union conferences offer contracts that provide for continuing or regular employment status following three years of successful employment on provisional or intern status. The education code provides a list of causes for the termination or dismissal of employees in each category. The procedures for each of these actions are described in the education code and must be followed to the letter.

U.S. courts typically decline to exercise jurisdiction when an employee of a religious institution claims wrongful termination.³⁸ The doctrine of “ecclesiastical abstention” sometimes referred to as the “ministerial exception” is considered controlling.³⁹ However, a religious institution is not allowed to terminate an employee for refusal to commit an illegal act or one that violates public policy.⁴⁰ For most of our K-12 schools, the employment policies clearly indicate that employees must be members of the Seventh-day Adventist Church in good standing and adhere to the lifestyle standards adopted by the church. Having such a provision clearly stated in the union conference education code provides legal cover for the church’s schools in a situation where a disgruntled former employee seeks recourse in the judicial system.⁴¹

Dealing With Child Abuse

One of the most sensitive issues that Adventist school personnel must deal with is child abuse and neglect. Every state in the U.S. has a law that requires educators to report suspicions of abuse and/or neglect.⁴² The specific agency to which the report must be presented varies from state to state. All teachers and school administrators, including those in religious schools, are mandatory reporters. This fact puts many church workers in a serious quandary. When the public gets wind of a case of child abuse, the resulting negative publicity has the potential to seriously hamper the mission of the church.

There is a natural tendency to try to protect the reputation of our schools and the denomination. Yet educators function in the role of caregiver, and they have a moral and legal responsibility to protect the children who are placed under their care. Children and youth are much more vulnerable than adults. Therefore, it is our Christian duty to serve the best interest of our students by reporting suspicion of abuse or neglect as a law requires. We best honor our unique religious beliefs and our moral principles when our educators comply with the civil law.⁴³ Board members are advised to support this compliance on the part of school employees.

I strongly recommend that Adventist churches and schools become proactive in implementing a policy that requires all persons, such as volunteers, who have more than casual contact with children and youth to be screened and subject to a criminal-history check.

It has been my observation that local leaders in the Adventist Church are hesitant to take any action that might put the church in a negative light. Also, there is a tendency to deal with child abuse and neglect, as well as sexual harassment and sexual abuse, from a pastoral viewpoint rather than an administrative one, which requires reporting to the civil authorities. Many times, I have had ministers and fellow educators tell me that instead of reporting to government agents, we should follow the steps for dispute resolution laid out in Matthew chapter 18. My response is that this is the worst action the school could take when employees suspect that children are being abused.

First, there is no dispute between the school and abusers, so the counsel in the Book of Matthew does not apply. Second, engaging in discussion with abusers alerts them that they are under scrutiny and may be in trouble. This gives them time to cover up their behavior and escape the legal consequence of their abusive conduct. Typically, the abuse will continue or even get worse.

From my experience, the best advice is to follow the law. School personnel should not play detective by investigating just to ensure that their suspicions are correct.⁴⁴ Leave that to the professionals. One law-enforcement official made that very clear to me in a succinct statement: “Your job is to manage the school; my job is to do the investigation!” I had been reluctant to give him the name of a student who had told her friends that her stepfather “fooled around with me at night.” She was known to have a vivid imagination and lived somewhat in a fantasy world. Under some degree of duress, I made the report he requested. After a short investigation, the detective discovered that the perpetrator was not only abusing his own stepdaughter, but in his role as assistant Pathfinder director, had also had questionable contact with several other children in the local church. I was glad I had responded positively to the detective’s lecture.

I strongly recommend that Adventist churches and schools become proactive in implementing a policy that requires all persons, such as volunteers, who have more than casual contact with children and youth to be screened and subject to a criminal-history check. See Arthur F. Blinci’s article in the April/May 2013 issue of the Journal: “Preventing and Dealing With Child Abuse.”⁴⁵

Government Funds for Adventist Schools

Many American Seventh-day Adventists believe there is no government funding available to their church schools. Traditionally, the Adventist Church in the United States has rejected any attempt by the government to provide funds to K-12 religious schools, believing such assistance to be unconstitutional. This is not the case in most parts of the world, where governments routinely provide generous subsidies to “grant aided schools.”⁴⁶ Such schools are unheard of in the United States. However, American Adventists do avail themselves of government benefits such as maintaining the streets and roads by which they arrive at the church school, the fire department services, and police protection. A number of services provided by state government have been made available to religious schools as well as the public schools. Several attempts by state governments to provide financial assistance to private and religious schools have been tested in the courts to determine their constitutionality.

One of the earliest of these court challenges involved funding for transportation to and from school for all students, including those in parochial schools. In Everson v. Board of Education,⁴⁷ the U.S. Supreme Court upheld the plan as constitutional. Other rulings followed, such as the Supreme Court’s decision regarding the loaning of textbooks to private schools.⁴⁸ Noting that the books would remain the property of the public school system and be placed in nonpublic schools only as a loan to the children, the high court declined to find such a plan to be a violation of the Constitution. At issue was the Establishment Clause of the First Amendment. The court fashioned a two-part test upon which it based its determination. Any government program must have a secular purpose, and its primary effect must neither establish nor inhibit religion. In a later case, Lemon v. Kurtzman, the court added a third part to the test: Government aid must not foster excessive entanglement between church and state.⁴⁹

Other cases have determined that a provision in the state tax code, allowing parents to deduct educational expenses from their taxable income, passes constitutional muster.⁵⁰ In regard to programs on the federal level, the U.S. Supreme Court in 1985 ruled that services to children with special needs who were enrolled in religious schools could not be provided on the school premises.⁵¹ The students had to be taken to a neutral site where they received services from public school teachers. Twelve years later, the Supreme Court dissolved the injunction holding its earlier order in place.⁵² The confusion resulting from the original ruling convinced the court that it was no longer good law. Special services can now be provided by public school personnel on the premises of the religious schools without violating the Constitution.

Additionally, there is a fear that, along with financial or other types of assistance from the government, there will be strings attached that might infringe upon our freedom to conduct our schools consistent with our unique religious perspective.⁵³ Yet a good case can be made that children in Adventist schools with special educational needs should have those needs met even if by personnel from the public schools.⁵⁴ Children with special needs deserve to have the services that are available even if it requires some degree of entanglement between the church and government. While there is no easy resolution to this issue, principals, board chairs, and superintendents must work together and advocate for solutions that will best meet the needs of children while also addressing the concerns of constituents.

Some Final Thoughts

In the limited space available, I have tried to give a comprehensive overview of legal matters that might be faced by governing bodies in K-12 Adventist schools. In most cases, they will not affect the operational decisions of the board, but, board members are more effective if they understand the basis for conference and local school administration making the decisions they do. Hopefully, this analysis will encourage Adventist school operating boards to give strong support to the actions of the administrations of their schools.

This article has been peer reviewed.

Lyndon G. Furst

Lyndon G. Furst, EdD, is Dean Emeritus of the School of Graduate Studies and Professor Emeritus of Educational Administration at Andrews University in Berrien Springs, Michigan, U.S.A. Dr. Furst served in the Adventist school system for 21 years as an elementary teacher and principal, academy principal, and conference educational superintendent. He holds an EdD in educational administration from the University of the Pacific in Stockton, California, and has presented and published widely in his field and on legal matters affecting nonpublic schools. In addition to writing for scholarly and professional journals such as Education Law Reporter, School Business Affairs, and Journal of Research in Christian Education, he has been a frequent contributor to The Journal of Adventist Education on legal topics. Elected to the board of the local public schools in 1994, voters returned him to that position several times for a total of 19 years. Since 1995, Dr. Furst has been a regular contributor to his hometown newspaper, The Journal Era, published in Berrien Springs, Michigan. His weekly column, “A Different Perspective” provides commentary on education and other topics of interest to the public.