author: FORRESTER, District Judge.

text:
    Simone PENA and Denise Pena, b/n/f Jesus Pena, and Jesus Pena, Plaintiffs v. BOARD OF EDUCATION OF The CITY OF ATLANTA, Carolyn Crowder, Preston W. Williams, Joseph G. Martin, Jr., Richard E. Raymer, D.F. Glover, Robert Waymer, June Cofer, Ina Evans, Carolyn D. Yancey, Individually and in their official capacity as members of the Board of Education of the City of Atlanta, Alonzo A. Crim, Individually and in his capacity as Superintendent of the Atlanta Public Schools, J. Lawrence Thompson, Individually and in his capacity as Director of Budget Management of the Atlanta Public Schools.
    Civ. A. No. C83-1787A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Sept. 25, 1985.

      Sandra W. Thornton, Thornton & Rose, Tucker, Ga., for plaintiffs.
    Warren C. Fortson, Bruce H. Beerman, Allie S. Edwards, Atlanta, Ga., for defendants.
   ORDER

FORRESTER, District Judge.

This action is before the court on plaintiffs’ motion for summary judgment on the federal claims contained in the complaint, specifically the equal protection claim. Plaintiffs seek summary judgment as to liability only, conceding that the issue of damages is a triable issue of fact. Plaintiffs, in accordance with Local Rule 220-5(b)(1), have attached to the motion for summary judgment a statement of material facts which plaintiffs contend are not in dispute. Defendants, opposing the motion for summary judgment, have not attached a statement responding to plaintiffs’ statement of undisputed facts, as required by Local Rule 220-5(b)(2), which provides as follows:

The respondent to a motion for summary judgment shall attach to his response a separate and concise statement of material facts, numbered separately, to which he contends there exists a genuine issue to be tried. Response should be made to each of the movant’s numbered material facts. All material facts contained in the moving party’s statement which are not specifically controverted by the respondent in his statement shall be deemed to have been admitted.

LR 220-5(b)(2) NDGa. The court therefore deems those facts contained in the plaintiffs’ statement of undisputed facts as admitted by the defendants.

For purposes of resolving the pending motion, the material undisputed facts are as follows. The plaintiff Jesus Pena is a Venezuelan citizen who, from 1978 to 1982, was admitted to this country on a F-l visa, which authorizes admittance of a non-immigrant alien for the purpose of pursuing a degree at an institution of higher learning. The remaining plaintiffs, Simone and Denise Pena, are Jesus’ children, and they were admitted to this country on F-2 visas, which are given to the spouse and minor children of holders of F-l visas. The Pena family resided within the school district known as Home Park, which was part of the City of Atlanta School System. Simone attended Home Park Elementary School from 1978 to 1982, from kindergarten through third grade. Denise attended the same school from 1981 to 1982 for kindergarten. Until the end of the 1981 school year, Simone’s attendance at the Home Park School was tuition-free.

In August of 1980, the Atlanta Public Schools distributed written procedures governing the attendance of foreign nationals in this country on certain types of visas. These procedures were developed by J. Lawrence Thompson, the Director of Budget Management for the Atlanta Public Schools. The procedures contained several classifications among the different visa categories authorized by the federal government. Specifically, holders of B, F-l, F-2, H, I, J, and L visas were required to pay tuition to attend the Atlanta Public Schools. Moreover, holders of each of those classifications were directed by the policy to change their visa status with the federal government to that of F-l. Holders of visa classifications A and G, which relate to certain international organizations, were not required to pay tuition at all. Other classifications were not dealt with by the procedures, including visa classifications C, D, E, K, M, and illegal aliens. The tuition policy applied only to those visa categories enumerated above. Thus, children of temporary residents of Atlanta who were citizens of other states, or who were children of resident aliens of this country domiciled somewhere other than the city of Atlanta, were not required to pay tuition. Prior to enactment of the August 1980 procedures, it was the policy of the city of Atlanta to charge tuition to “non-residents” of the city of Atlanta, which meant that children as to whom neither parent was a legal resident of the city of Atlanta were required to pay tuition. Exhibit 3 to Thompson Depo. The effect of the August 1980 procedures was to classify holders of B, F, H, I, J, and L visas as non-residents for purposes of the city’s policies regarding tuition.

Both of the Pena girls were denied free admission to the Home Park Elementary School for the 1981 school year until their father had signed an agreement whereby he agreed to pay their tuition. Once he signed the agreement, he thereafter made approximately five tuition payments on it, in the total amount of $1,360.00, and then, on the advice of counsel, ceased payment. The city thereafter withheld the girls’ report cards pending payment of the additional tuition. In September of 1982, the tuition policy was rescinded, and the girls were issued their report cards. However, the tuition paid by Mr. Pena has never been refunded.

With regard to the residency classifications, the undisputed facts show that temporary sojourners in the city of Atlanta, for example the Governor of the State who would be here for a maximum period of eight years, could establish “residency,” and not pay tuition. However, holders of the above-enumerated visa classifications were provided no means by which they could demonstrate that they were bona fide residents of the city of Atlanta. The most on-point hypothetical discussed by Mr. Thompson regarding the procedures whereby someone who was in Atlanta temporarily could nonetheless establish “residency” for school tuition purposes, is contained at page thirty of his deposition. Mr. Thompson testified that under the policy an individual who was a resident of the state of Alabama, who came to the city of Atlanta for a period of four years to obtain a degree, with every intention throughout that time of returning to Alabama, would nonetheless be permitted to send his children to school within the city of Atlanta tuition-free. As noted above, however, Thompson testified that someone in Mr. Pena’s position, that of a person from a foreign country, holding an F-l visa, who intended to be here for a period of no more than four years, and then return to his country, could not possibly demonstrate residence under the city’s policy. Thompson Depo. at 31-32. Thus, the policy treated aliens differently from the citizens of other states.

An issue has been raised in this case with respect to the manner in which these procedures were adopted. The undisputed facts of the case demonstrate that the following occurred. The procedures were written by Mr. Thompson, and were presented to members of the finance committee of the School Board as an informational item. The majority of the Board members were present at the time, and following that meeting, Thompson understood the procedures to have been approved by the finance committee, which was, “in essence, the board.” Thompson Depo., pp. 33-37. Mr. Thompson wrote a letter to the foreign student advisers at area universities within the city of Atlanta in which he represented the procedures as having been approved by the Board of Education. Moreover, Thompson testified that the meaning of that letter was that the Board of Education had given “verbal approval” of the procedures in question. Thompson Depo., pp. 37-38. The foregoing was all prior to the time that the policy was implemented. Thereafter, when Mr. Pena consulted his counsel, she sent a letter to Alonzo Crim, the Superintendent of the Atlanta Public Schools, on November 25, 1981, in which she stated the policy, her belief that it was unconstitutional, and discussed many of the precedents the court discusses below. A copy of that letter was given to counsel for the Board. Thornton Affidavit, Exhibit A. Finally, each individual Board member was sent a similar letter from Mr. Pena’s counsel on June 16, 1982, while the policy was still in force and being applied against the Pena girls, reiterating that the policy appeared to be unconstitutional. No counter-evidence has been brought forward by the defendant which would permit this court to conclude that an inference could be drawn that the Board either did not approve of the program, or that Mr. Crim, Mr. Thompson, and the individual Board members, did not know of the nature of the policy. See Fed.R.Civ.P. 56(e). The only evidence of record establishes as undisputed that prior to the time the policy was revoked, each of the named defendants had notice that the policy existed, and appeared to be unconstitutional. Nevertheless, no Board member voiced opposition to the policy; indeed, it was Thompson’s testimony that in his opinion the Board had verbally approved the policy before it was ever implemented.

The remaining undisputed facts deal with the rationales put forward behind the policy. In response to an interrogatory from plaintiffs as to the Board’s reasons for adopting the policy, the Board responded that it could offer no reason which would be “relevant” to this litigation. The interrogatory to the Board read as follows: “What were the reasons for excluding from the public schools children who held B, F, H, I, J and L visas unless tuition was paid for their instruction?” The response of the Board of Education and the Board of Education members reads as follows: “Defendants object to plaintiffs’ interrogatory number five on the ground that same seeks information which is not relevant to the subject matter involved in the pending action nor is said information reasonably calculated to lead to the discovery of admissible evidence.” Plaintiffs seek this court to draw an inference that the Board therefore proffered no rationale for the policy. However, despite the apparent inadequacy of this objection, no motion to compel which complied with the Local Rules of this court was ever filed by the plaintiffs. That being the case, the court will not draw any inferences from this interrogatory answer, but notes that the record is therefore silent as to whether there is any evidence as to why the Board adopted this policy, since no evidence was produced in opposition to the motion for summary judgment.

Mr. Thompson, on the other hand, provided several reasons behind adoption of the policy. First, Thompson testified that the policy was enacted for fiscal reasons, such that persons who did not pay taxes to the city of Atlanta would not be able to take advantage of free public education. Thompson admitted, however, that holders of the visa classifications which were subject to the tuition charge were not exempt from payment of property taxes. On the other hand, holders of A and G visas, who were not subject to the tuition policy, are exempt from payment of taxes. In a related fiscal concern, Thompson testified that it was his view that it was more difficult to educate foreign students, because their lack of command of English made it more expensive. The third reason proffered by Mr. Thompson for the procedure was to make the city’s policy regarding non-immigrant aliens conform to that of other metropolitan Atlanta school systems. Fourth, Thompson testified that, in his opinion, children who held those visas other than F-l violated their federal visa status by going to school, and therefore they should be required to obtain F-l visas in order to attend school.

The fifth reason proffered by Mr. Thompson is reprinted from his deposition verbatim below:

Q: ... [W]hy did you go to the trouble of setting up this policy, examining visa categories, requiring students or trying to require people to change their visa status, etc., because that must have been administratively difficult to handle and so forth. So what kind of reasoning impelled you to go to this policy to charge tuition to non-immigrant aliens? I mean, what’s the policy reason behind this?
A: I guess about the only thing I can answer that question is that the influx of Iranian students into the Atlanta Schools had become such a problem that we established procedures that we had really in the years before that never worried about because it just wasn’t that many, but we—
Q: I’m not talking about the specific procedures. You say you always charged tuition.
A: Right.
Q: But why charge tuition is what I’m trying to get at, unless you were trying — you said there was an influx of Iranian students. Did you want to discourage those Iranian students from coming to the schools?
A: In essence, yes, that was probably one of the main reasons, because we were being used by Iranian students, who supposedly had already completed the education in Iran through the high schools, but they could not speak well enough English [sic] or good enough English [sic] to get into the colleges in Atlanta. So what they would do, they would come here, enroll in our high schools, get their year of English, so that they then could be proficient enough to pass the college entrance in language, and basically that’s the reason that we probably became much more aware of the problem with foreign students, and we checked on them a little bit probably closer than we had in the past and sent out information to the schools that, you know, this is the way it should be done.
Q: Then in effect, because you were having a problem with Iranian high school students who wanted to learn English in the Atlanta Schools, you became more concerned about enforcing the policy against elementary school students from every other country, not just Iran.
A: Well, it just really — the Iranian situation probably brought it to a head, and we just enforced the policy system-wide for all students.

Thompson Depo. at pp. 55-57 (emphasis supplied).

Based upon the foregoing statement of facts, the plaintiffs have moved for partial summary judgment that the procedure implemented in August of 1980 violated the plaintiffs’ rights to equal protection under the United States Constitution, thereby.exposing the defendants to liability under 42 USC § 1983. The defendants, responding to the motion, essentially argue that there are several factual issues. As noted above, there was no specific contravention of plaintiffs’ statement of material facts. However, to the extent that the court could construe the brief in opposition to the motion for summary judgment as arguing that differing inferences could be drawn from the undisputed facts proved by the plaintiffs, the court will undertake to examine the defendants’ position. First, the defendants argue that there is a disputed question of fact regarding whether the Board of Education ever “adopted” the practice of charging certain classes of non-immigrant aliens tuition. Second, the defendants argue that the procedure was a bona fide residency system, and therefore not violative of the equal protection clause. Third, defendants argue that there are disputed questions of fact with regard to whether the defendants intended to discriminate. Fourth, the defendants argue that there was a compelling state interest, i.e., fiscal responsibility, for charging nonresidents tuition, secondarily pointing out that it costs more to educate foreign students. Fifth, defendants argue that there are disputed inferences as to whether the individually named defendants meet the requirements for good faith immunity set out in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Finally, the defendants argue that the plaintiffs have not demonstrated compensable damages.

With regard to plaintiffs’ equal protection claims, the defendants have made three arguments which go directly to the question of liability: whether the procedure is a bona fide residence requirement; whether the defendants intended to discriminate; and whether there was a compelling state interest served by this purportedly narrowly-tailored procedure. The court will discuss these three issues in context as it discusses the law in this area, and then will deal with defendants’ remaining three arguments, all of which go to affirmative defenses.

It is beyond peradventure that the Pena’s are entitled to the protections of the due process and equal protection clauses of the fourteenth amendment to the United States Constitution. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976); Sugarman v. Dougall, 413 U.S. 634, 641, 93 S.Ct. 2842, 2847, 37 L.Ed.2d 853 (1973); Graham v. Richardson, 403 U.S. 365, 371, 91 S.Ct. 1848, 1851, 29 L.Ed.2d 534 (1971). When a state enacts classifications based upon alienage, the court is to examine the classification under the strict scrutiny standard. Graham, supra, at 372, 91 S.Ct. at 1852; Sugarman, supra, 413 U.S. at 642, 93 S.Ct. at 2847; see also Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). In the words of the court in Plyler,

The Equal Protection Clause directs that “all persons similarly circumstanced shall be treated alike.” ... [W]e have treated as presumptively invidious those classifications that disadvantage a “suspect class,” or impinge upon the exercise of a “fundamental right.” With respect to such classifications, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.

Plyler, 457 U.S. at 216-17, 102 S.Ct. at 2394 (citations omitted). Alienage classifications constitute a suspect classification. Graham v. Richardson, 403 U.S. at 372, 91 S.Ct. at 1852.

In addition to the equal protection standard explained above, requiring this court to apply strict scrutiny to the Atlanta Public School System’s program in this case, the court also notes that this case implicates the federal government’s strong interest in control over immigration policy. Any alienage classification which imposes a greater burden upon aliens than Congress intended is invalid, and cannot be asserted as a compelling state interest, or even as a rationale for the classification. Mathews v. Diaz, 426 U.S. at 84, 96 S.Ct. at 1893; Toll v. Moreno, 458 U.S. 1, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982). As the Court noted in Mathews, the constitutional scheme of this country commits relations between the United States and aliens within its borders to the political branch of the federal government. 426 U.S. at 81, 96 S.Ct. at 1892. Therefore, it is beyond the authority of the states to attempt to regulate the conditions of entry and residence of aliens. Id. at 84, 96 S.Ct. at 1893.

As the city has correctly noted, however, the Supreme Court has upheld bona fide residence classifications which operate to disadvantage aliens. In Martinez v. Bynum, 461 U.S. 321, 103 S.Ct. 1838, 75 L.Ed.2d 879 (1983), the Court upheld a Texas law which required tuition for all children who were found within the school district, but who did not live with their parents or a guardian, if the reason they were present in the school district was solely to attend school. The Court held that bona fide residence requirements, “appropriately defined and uniformly applied” further a substantial state interest in insuring that its services are enjoyed only by residents. 103 S.Ct. at 1842 (emphasis supplied). However, as the Court noted in Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), such policies must be uniformly applied in order to be bona fide. In Plyler, the Court invalidated a Texas law which denied a free education to illegal aliens. The Court held that the distinction between illegal aliens, on the one hand, and legal aliens and United States citizens, on the other, did not constitute a bona fide residency requirement. Citing Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the Court noted that although there is no constitutional right to a free public education, if the state chooses to provide one, it must do so on equal terms. Plyler, 457 U.S. at 222-23, 102 S.Ct. at 2397-98. This rationale was stated another way in Mathews v. Diaz, when the Court held as follows:

Insofar as state welfare policy is concerned, there is little, if any, basis for treating persons who are citizens of another State differently from persons who are citizens of another country. Both groups are non-citizens as far as the State’s interests in administering its welfare programs are concerned.

426 U.S. at 85, 96 S.Ct. at 1894.

Based upon the foregoing law, it is readily apparent to this court that the city of Atlanta’s procedure implemented in August of 1980 violates the equal protection clause of the United States Constitution. Dealing first with the city’s argument that the requirements are bona fide residency requirements, the court notes that they are not uniformly applied. The hypothetical presented to Mr. Thompson disposes of this argument readily. To be a bona fide residency requirement, according to Martinez, the plan must be uniformly applied. Under the city’s policy, identically situated persons would be treated differently based on alienage. Specifically, a person who came from Birmingham, Alabama, to attend Georgia Tech for four years to earn an advanced degree could demonstrate “residency” within the city and send his children to school tuition-free. Mr. Pena, a Venezuelan citizen, could come to the city to attend Georgia Tech for four years to get an advanced degree, and could not, under any circumstances, demonstrate “residency” within the city so that his children could attend school tuition-free. That is but one example of the lack of uniformity of this policy. Another is the distinction in treatment of an F visa-holder and a G visa-holder. The following hypothetical will demonstrate. Under the city’s policy, two men from Venezuela, one who held an F visa and one who held a G visa, could come to Atlanta for exactly the same period of time. The F visa-holder, for example, might be intending to study at Georgia Tech for four years, while the G class visa-holder might be on a four-year rotation in the Venezuelan Consulate in Atlanta. Their living circumstances and “residence” situations are identical. However, the G class visa-holder’s children will attend school tuition-free, while the F class visa-holder’s children will have to pay tuition. No further discussion is required. The city’s argument that this policy is a bona fide residence requirement is utterly without logic or merit.

That being the case, then the question becomes whether this form of classification based upon alienage survives strict scrutiny. It does not. The first question to be asked is whether there is an asserted compelling state interest behind this classification. One of the asserted interests in this case, that of Mr. Thompson’s impression regarding the proper visa children of F-l non-immigrant aliens should hold, clearly cannot be a compelling state interest, since that “interest” would violate the federal government’s right to control the entrance and residence of aliens. If the federal government wanted to require an F-l visa of all persons who would enter the country and will attend school while they are here, it could do so. It has chosen not to, and has provided that F-l immigrants’ spouses and minor children may enter the country on F-2 visas. It is hardly for the School Board of the City of Atlanta to second-guess that policy. Therefore, that, does not provide a compelling state interest behind this procedure. Another of the reasons put forward behind this policy is the desire of the city of Atlanta to make its policy conform to that of other localities in the metropolitan Atlanta area. While uniformity might be a desirable goal, it can hardly be said to constitute a “compelling” state interest, particularly if the other localities are also violating the equal protection clause. A policy is no less unconstitutional merely because everyone does it.

With regard to the fiscal concerns put forward by Mr. Thompson, those concerns have the potential to be a compelling state interest. However, the equal protection clause also requires that the classification selected by the state be “precisely tailored” to serve the compelling state interest. The classifications adopted in this case are without rhyme or reason, much less precisely tailored. As noted above, the tax concerns expressed make no sense. An F class visa-holder is not exempt from payment of property taxes should he choose to buy property within the city limits, but must pay tuition, while a G class visa-holder, who is exempt from taxes if he chooses to buy property within the city limits, does not have to pay tuition. That is hardly precise tailoring. With regard to the assertion that it is more expensive to educate foreign students, again, it would be no more expensive to educate a F class visa-holder’s child than it would be to educate a G class visa-holder’s child, yet the two are treated differently. No rationale for the difference in treatment among visa classes has been brought forward by the city. The Supreme Court held in Plyler that if a free public education is offered by the state, it must be made available on equal terms to everyone. This city procedure carves out certain classifications of visas, which apparently are not related to any fiscal concern, and ignores several others, including illegal aliens. To the extent that the city’s professed fiscal concerns could be construed to be a compelling state interest, the court finds that as a matter of law this program is not narrowly tailored to serve those interests.

The final rationale proffered for this program, that of discouraging Iranian high school students from attending school in this city, also rebuts one of the arguments raised by the defendants, which is that there is a question of fact as to whether they intended to discriminate. The testimony of Mr. Thompson, which this court reproduced verbatim above, demonstrates beyond any shadow of a doubt that “a main reason” behind this policy was to discourage one class of aliens from attending Atlanta Public Schools. That is obvious class-based animus. It was not that animus, directly, which hurt the plaintiffs. What hurt the plaintiffs was when the city decided not to tailor its program narrowly to its intention to discriminate against Iranians, but to “just enforce” the policy system-wide for all students. As long as invidious discrimination is a motivating factor behind the action taken by the city, an equal protection violation has been proven. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450 (1976). The only fair reading of Mr. Thompson’s testimony is that a motivating factor behind this program was to discriminate against aliens of Iranian citizenship, and, once having chosen to do that, the city decided to enforce its policy against all aliens. There is no question of fact here, as the defendants argue. Mr. Thompson’s testimony is clear, and is unrebutted by anything else in the record. Indeed, it is an admission. Fed.R.Evid. 801(d)(2).

The court finds that the undisputed facts of this case show that plaintiffs have demonstrated that similarly situated individuals are treated in an unlike manner under the city’s procedure. The city has not met its burden of demonstrating that a compelling state interest justifies the classification, or that the program is narrowly tailored to serve the compelling state interest. For that reason, unless the defendants can prove one of the affirmative defenses to liability in this action, plaintiffs’ motion for summary judgment should be granted.

The defendants have put forward two affirmative defenses: first, that the Board did not "adopt” this policy, and therefore the Board cannot be liable; and second, that there are questions of fact with regard to whether the individually-named defendants meet the requirements for good faith immunity. The former issue is readily disposed of. The only evidence of record on this point is that discussed by the court above. The finance committee of the School Board which, in the words of Mr. Thompson, is “in essence” the School Board itself, was informed of this program prior to its implementation, and voiced no opposition. Thompson’s impression was that he had the verbal approval of the Board for the program, and he so stated in a letter sent out on School Board stationery to foreign student advisers at local universities. Section 1983 imposes liability on municipalities for injuries inflicted pursuant to government “policy or custom.” Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). The defendants argue that there was no policy or custom in the present case, and that plaintiffs are attempting to assert liability on the part of the Board of Education of the City of Atlanta on the basis of respon-deat superior. That is simply not the case. If nothing else, it was the Board’s acquiescence that led Mr. Thompson to believe he had authority from the Board to promulgate this procedure, and led Mr. Crim to enforce it. This is not a case where liability would be imposed “merely because of an employment relationship.” See City of Oklahoma City v. Tuttle, — U.S. —, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985).

In Tuttle, the Supreme Court noted that the “policy or custom” requirement was intended “to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decision-makers.” In this case, the Board’s agent, Mr. Thompson, developed a clearly unconstitutional policy, presented it to a body which “in essence” was the Board itself, and came away with the impression he had authority to implement the program. A municipality should not be permitted to insulate itself from section 1983 liability merely by authorizing its agents to develop programs, being “informed” of them, and then silently acquiescing in their implementation. That would permit a municipality to enforce any number of unconstitutional policies, and circumvent section 1983 liability, merely by taking no action to supervise its employees. That was not the purpose of the statute. As noted in Tuttle, one way to establish a “policy,” is via a “statement of the policy by the municipal corporation, and its exercise.” 105 S.Ct. at 2436. Another way, however, to determine whether the policy is that of the municipality, is to ascertain whether it is created and executed “by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy....” Monell, 436 U.S. at 694, 98 S.Ct. 2037. The “lawmakers” in this case are the School Board. Their action, or to be more precise, inaction, in the present case demonstrates that Mr. Thompson apparently has been conferred the authority to make official policy on behalf of the School Board. That being the case, under Monell, the School Board would be liable for Mr. Thompson’s actions, not because he is an employee, but because his actions may fairly be said to represent official policy. For this reason, the court concludes that the defendants are incorrect in their assertion that the Board did not “adopt” the policy at issue.

The remaining point raised by the defendants as regards affirmative defenses is defendants’ contention that there are factual questions regarding whether the individually named defendants are entitled to assert the defense of good faith immunity. Good faith immunity is an affirmative defense which must be pleaded and proved by the defendant official. Harlow, 457 U.S. at 815, 102 S.Ct. at 2736. The immunity standard set out in Harlow reads as follows:

[Government officials performing discretionary functions ... generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.... Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time inaction occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful.

Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. The question, then, is whether the defendants have presented sufficient facts from which this court could infer that the defendants’ conduct was undertaken in an objectively reasonable manner, and the conduct did not violate clearly established law of which the defendnts should have known.

In arguing the immunity issue, the defendants basically concede that the Plyler case from the Supreme Court, invalidating Texas’ statute which imposed a tuition fee on illegal aliens, establishes that this program is unconstitutional. The question, they assert, is whether the individually named defendants could have been expected to know that at the time the program was enacted. The plaintiffs argue that Mr. Thompson did know, and the other individual defendants should have known, of the controlling Fifth Circuit precedents out of which the Plyler case came to the Supreme Court. In Doe v. Plyler, 628 F.2d 448 (5th Cir.1980), the Fifth Circuit held that distinctions among some, but not all, aliens violate the equal protection clause unless a compelling state interest is asserted. The holding is quite similar to that of the Supreme Court when it handled the Doe case some two years later. Plaintiffs additionally point to Boe v. Wright, 648 F.2d 432 (5th Cir.1981), which invalidated a similar program on the basis of the Fifth Circuit Doe decision. These precedents are from right around the time when this program was enacted, and were brought to the attention of the School Board directly in the form of a letter from plaintiffs’ counsel in November of 1981. To the extent, then, that enforcement of this program continued after these judicial opinions were brought to the attention of the School Board, Mr. Crim, and Mr. Thompson, plaintiffs assert that the individual defendants should not be permitted to assert the defense of good faith immunity. Defendants’ sole response to these two controlling precedents is that the Supreme Court had granted certiorari in those cases, such that the law was not “clearly settled.” Of course, a grant of certiorari does not stay the mandate of the lower court decision unless the Supreme Court so directs, which it did not in these cases. Therefore, the Boe case and the Doe case were controlling precedents from within the circuit which should have informed the individual defendants that their program was unconstitutional.

Defendants Crim and Thompson had actual notice of these cases, and nonetheless refused to refund plaintiffs’ tuition money, and continued to hold the plaintiff children’s report cards. The clearly settled law in this circuit, of which the defendants were aware, should have put them on notice that their conduct was unconstitutional, at least as to defendants Crim and Thompson. The defendants’ argument regarding questions of fact existing as to those defendants are without merit. With respect to the individual members of the School Board, who are sued both in their individual and in their official capacities, the record demonstrates that they were informed of the existence of these judicial precedents via a letter in June of 1982. This was well after the program was enacted and applied to the plaintiffs. However, after the letter was received, the Pena children’s report cards were still withheld, and Mr. Pena was not given a refund of the tuition. Indeed, to this day he has not been refunded the tuition he paid. The court concludes that as to the Board of Education members sued in their individual capacity, they, too, had notice of controlling precedent which made their conduct unconstitutional, and nonetheless continued to stay their course. No contradictory facts appear in the record. Fed.R.Civ.P. 56(e). Therefore, the court concludes that they also would not be entitled to assert the defense of qualified good faith immunity, except as to conduct which occurred before June 16, 1982. Similarly, defendant Crim may be able to assert good faith immunity for conduct which occurred before November 25, 1981. Defendant Thompson would have no good faith immunity at all, since he testified on deposition he was aware of the Fifth Circuit precedents in 1980. Thompson Depo. at 69. This was, of course, before these procedures were applied to the plaintiffs. Since the undisputed facts demonstrate knowledge on the part of the individual defendants as of the dates mentioned above, the immunity defense would be possible only to the extent enumerated above.

The court further holds, however, that notwithstanding the existence of the Fifth Circuit precedents and the later Supreme Court decision in the Plyler cases, these defendants should have been on notice in 1980 that this program was not constitutionally permissible. As noted above, the law has been settled for many, many years that aliens are entitled to both due process and equal protection under the fourteenth amendment. It has also been settled that a compelling state interest is required to support classifications based upon alienage, and those classifications will be analyzed under a strict scrutiny standard. In particular, the court is struck by the language cited above from the Mathews case, decided in 1976, in which it was held that states have no compelling interest in a welfare policy which makes distinctions between citizens of other states and aliens. 426 U.S. at 85, 96 S.Ct. at 1894. Nevertheless, that is precisely what this policy does. The court concludes that the law was clearly settled at the time that this program was implemented, such that all the defendants should have known that it could not survive strict scrutiny under clearly settled precedent. Therefore, the individual defendants are not entitled to assert the benefit of the defense of qualified good faith immunity.

The final issue raised by the defendants is that the plaintiffs have not demonstrated compensable damages. The court disagrees. Constitutional rights are never valueless, and as noted above, the defendants’ conduct has deprived the plaintiffs of the equal protection of the laws. The plaintiffs are therefore entitled to recover nominal damages, even if nothing else may be shown at trial. Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252 (1978). Moreover, defendants’ argument regarding whether plaintiffs may recover the tuition extracted under a contract which plaintiffs claim to be illegal, merely points out that there are factual questions to be decided regarding whether Mr. Pena’s “waiver” was knowing and voluntary, or, as plaintiffs assert, whether the contract was one of adhesion. There is no evidence in the record from which this court could determine that question either way.

In summary, plaintiffs’ motion for partial summary judgment that their equal protection rights have been violated is GRANTED. Liability as to section 1983 is therefore determined in favor of plaintiffs and against defendants. With respect to plaintiffs’ section 1985 claims, for conspiracy, there is no evidence whatsoever of record respecting whether there was a conspiracy or not. That being the case, plaintiffs are not entitled to summary judgment on the section 1985 claim. Therefore, plaintiffs’ motion for summary judgment is GRANTED IN PART and DENIED IN PART. The parties are DIRECTED to file with the court within thirty (30) days from the date of receipt of this order a proposed consolidated pretrial order which addresses the damage claims on the section 1983 issue, the section 1985 issue in all respects, and the pending state law claims which were not addressed by the motion for summary judgment.


source: Caselaw Access Project

author: ROGER D. FOLEY, Senior District Judge.

license: Public Domain

text:
    TRUSTEES OF the OPERATING ENGINEERS PENSION TRUST; Trustees of the Operating Engineers Health and Welfare Fund; Trustees of the Operating Engineers Vacation-Holiday Fund; Trustees of the Operating Engineers Apprenticeship Training Trust; and Operating Engineers Industry Promotion Fund, Plaintiffs, v. Ricky Joe BURTON, an individual d/b/a Break ’em Excavation, Defendant.
    No. Civ. LV 84-211 RDF.
    United States District Court, D. Nevada.
    Sept. 25, 1985.

      Kevin B. Christensen of Dennis M. Sabbath, Chartered, Las Vegas, Nev., Christopher M. Laquer, Jett, Clifford & Laquer, Los Angeles, Cal., for plaintiffs.
    Robert J. Gower of Wiener, Waldman, Gordon & Silver, Ltd., Las Vegas, Nev., for defendant.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

ROGER D. FOLEY, Senior District Judge.

This case having been tried to the Court on the 28rd and 24th days of September, 1985, and plaintiffs having appeared by and through their attorney Kevin B. Christensen, of the law firm of Dennis M. Sabbath, Chartered, and defendants having appeared through their attorney, Robert J. Gower, of Wiener, Waldman, Gordon & Silver, Ltd., and the Court having heard oral argument, having received evidence and the testimony of witnesses sworn, hereby finds and concludes as follows.

FINDINGS OF FACT

1.That the plaintiff Trustees are fiduciaries charged with the administration of the Operating Engineers Pension Trust; Operating Engineers Health and Welfare Fund; Operating Engineers Vacation-Holiday Fund; Operating Engineers Apprenticeship Training Trust; and Operating Engineers Industry Promotion Fund (Trusts).

2. That the Trusts are express Taft-Hartley joint labor-management employee benefit trusts established and existing pursuant to written declarations and agreements of trust between the International Union of Operating Engineers, Local No. 12 (Local 12), and various multi-employer associations in the construction industry in Southern California and Southern Nevada. The Trusts were created and now exist pursuant to Section 302(a) of the Labor-Management Relations Act of 1947, as amended (29 U.S.C. § 186(c)).

3. That at all times relevant herein, Local 12 has been a labor organization representing employees in the building and construction industry in Southern California and Southern Nevada and, in particular, representing the employees doing operating engineer work for Ricky Joe Burton, a/k/a Rick Burton (Burton), an individual, d/b/a Break ’em Excavation.

4. That at all times relevant hereto, Burton is and was a resident of Clark County, Nevada, doing business as Break ’em Excavation, with his principal business office located at 3700 South Highland Drive, Las Vegas, Nevada.

5. That defendant Break ’em presently is and was at all times relevant hereto doing business in the State of Nevada and an employer engaged in interstate commerce within the meaning of Section 301(a) of the Labor-Management Relations Act.

6. That on or about April 15, 1980, defendant Burton, d/b/a Break ’em Excavation, executed and delivered to Local 12 a written collective bargaining agreement (Agreement) whereby the defendant agreed to be bound by the terms and conditions, with certain exceptions, of various written and existing agreements between various multi-employer associations and Local 12. In particular, defendant agreed to be bound by the Master Labor Agreement (Master Agreement) then in effect in the area in which Break ’em Excavation was doing business at said time; and further, that on April 15, 1980, defendant Burton signed written Acknowledgments and Acceptances of Trust (Trust Agreements) establishing the respective operating engineer fringe benefit Trusts.

7. That the Master Agreements for 1977-80, 1980-83, and 1983-86 are incorporated by reference into the Agreement signed by Burton in behalf of Break ’em Excavation and contain the contribution pay and report provisions relevant hereto.

8. That at all times material hereto, the defendant has been obligated to the terms of the Master Agreements, short form labor agreement, and respective Trust Agreements.

9. That defendant was obligated to submit monthly written reports on a timely basis to the Trust Funds’ administrative offices in Pasadena, California, and in Las Vegas, Nevada, identifying therein those employees performing covered work, the hours they worked, and remitting payment of fringe benefits at contractually specified rates for each hour worked or paid. The reports and payments are due by the 10th day of each successive month at the Trust Funds’ respective administrative offices.

10. That defendant is obligated to submit to periodic payroll audits by representatives of the plaintiff Trusts to determine compliance with the terms of the agreements.

11. That Jerry McKinlay and Steven Bagshaw were employees of Break ’em, and that each performed work covered under the Operating Engineers Collective Bargaining Agreement and for whom Trust Fund contributions were paid.

12. That Break ’em Excavation, pursuant to the terms of the Master Agreement and Trust Agreement, had made contributions in behalf of McKinlay and Bagshaw to the plaintiff Trust Funds.

13. That on the 23rd of February, 1982, Jerry McKinlay and Steven R. Bagshaw, then represented, by Burton and by themselves, to be exempted partners in Break ’em, signed, together with Burton, a Stipulation for Entry of Judgment in behalf of Break ’em Excavation for monies owed to the Trust Funds because the defendant had failed to file timely reports and in some instances had failed to file any reports with the plaintiffs.

14. That, based upon the aforesaid representations, the Trustees requested the signatures of Jerry McKinlay and Steven R. Bagshaw, as partners, on the Stipulated Judgment entered into by the parties on February 23, 1982.

15. That at the time Bagshaw and McKinlay signed the Stipulated Judgment, plaintiffs had no reason to question the representations that McKinlay and Bag-shaw were exempted partners and had no knowledge that Bagshaw and McKinlay’s purported interest in Break ’em Excavation was less than ten (10) percent.

16. That all other claims made by the Trust Funds have been paid by defendant, other than the hours now claimed in behalf of Jerry McKinlay and Steven R. Bagshaw.

17. That since the date of a claimed partnership (with Burton, Bagshaw, and McKinlay as partners), defendant has refused to report or pay Trust Fund contributions in behalf of McKinlay or Bagshaw because defendant has claimed them to be exempted partners of Burton in Break ’em Excavation.

18. That Jerry McKinlay and Steven R. Bagshaw had been approached in late 1981 by Burton and offered a five (5) percent partnership interest in Break ’em Excavation as a condition of continuation of their employment with Break ’em Excavation.

19. That after the alleged partnership agreement was reached, McKinlay and Bagshaw did not change the nature of their work, but continued to perform work covered under the Master Labor Agreement, and continued to be issued by Burton W-2 forms as employees of Break ’em Excavation.

20. That Burton owned and controlled all of the assets of Break ’em Excavation.

21. That there was no understanding by the alleged partners for Break ’em Excavation as to when and how to distribute profits or allocate debts among Burton, McKin-lay and Bagshaw.

22. That to date there are no written partnership agreements, no partnership tax returns have been prepared or filed by or in behalf of Burton, Jerry McKinlay or Steven R. Bagshaw during the term of the alleged partnership.

23. That at all material times herein, McKinlay and Bagshaw did not share in Break ’em Excavation’s profits or pay its losses and had no authority to bind the partnership to contracts, sell its assets, or manage its business affairs, although Steven R. Bagshaw had some limited authority to hire and fire employees and was a signatory on payroll checks.

24. That following the attempted formation of the alleged partnership, Burton retained ownership and control of Break ’em.

25. That Burton did not sign the labor and trust agreements under duress.

26. That plaintiffs have not waived any of their causes of action in this matter.

27. That neither the plaintiffs, their agents, nor Local 12 made any misrepresentations to induce Burton to sign the agreements concerning Break ’em’s obligation to make Trust Fund contributions on behalf of its employees.

28. That plaintiffs conducted an audit of defendant’s payroll and business records on the 3rd day of May, 1983.

29. That from the plaintiffs’ May 3, 1983, payroll audit and from the reports voluntarily submitted to plaintiffs by defendant, the evidence reflects unreported hours and unpaid contributions in behalf of Jerry McKinlay and Steven R. Bagshaw totalling 4948.75 hours; and that liquidated damages are owed thereon, together with audit expenses of $175.00, attorney’s fees, and court costs pursuant to Article XIY of the Master Labor Agreement.

30. That Break ’em breached its labor and trust agreements with plaintiffs by refusing and failing to report and pay fringe benefit contributions for McKinlay and Bagshaw.

31. That Break ’em is liable to plaintiffs for unpaid contributions in behalf of Steven R. Bagshaw and Jerry McKinlay, together with liquidated damages, audit costs, prejudgment interest, reasonable attorney’s fees and court costs pursuant to 29 U.S.C. § 1132(g).

32.That the total damages owed by Break ’em to the plaintiffs is as follows:

(a) delinquent contributions $32,301.28
(b) liquidated damages 10,242.30
(c) prejudgment interest 10,242.30
(d) reasonable attorney’s fees 23,114.50
(e) audit costs 175.00
(f) court costs 856.50
TOTAL $76,931.88

33. That the custom and practice of the Trust Funds is to require contributions in behalf of any partner of any signatory employer owning less than ten (10) percent of a signatory partnership business who performs covered work. Said custom and practice was approved by both Management and Labor Trustees and was binding upon all signatory employers.

34. Any conclusion of law which is deemed a finding of fact is hereby incorporated into these findings of fact.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of this action under § 301(a) of the Labor-Management Relations Act, as amended (29 U.S.C. § 185(a)) and § 502(a)(3) of the Employee Retirement Income Security Act of 1974, as amended (29 U.S.C. § 1132(a)(3)).

2. The Trustees of the Trust Funds are proper plaintiffs in this action.

3. Burton, d/b/a Break ’em Excavation, has remained bound to the terms of the Agreement and Trust Agreements at all times relevant to this action.

4. That as a matter of law, the business association of Burton, McKinlay, and Bag-shaw did not constitute a partnership.

5. McKinlay and Bagshaw are and were employees of Break ’em Excavation who performed work covered under the Master Agreement and for whom trust fund obligations are due and owing.

6. Operating Engineer employees with an ownership interest in the signatory employer must own at least ten (10) percent of the signatory employer to be exempt from Agreement, Master Agreement and Trust Agreement report and contribution provisions.

7. Break ’em Excavation is required to pay fringe benefit contributions on behalf of McKinlay and Bagshaw because they performed covered work and were not exempted partners.

8. The Stipulated Judgment previously entered into between the parties did not limit the plaintiffs’ rights to collect additional trust fund contributions.

9. Plaintiffs’ claims. are not precluded by the statute of frauds, the Nevada six-year statute of limitations for written agreements is applicable.

10. Plaintiffs’ claims are not precluded by the equitable doctrines of estoppel, lach-es, or waiver.

11. Plaintiffs’ claims are enforceable, there being no failure of consideration in the execution of the labor and trust agreements.

12. The plaintiffs have not released the defendants from this cause of action.

13. Break ’em Excavation owes fringe benefit contributions to the trust funds in behalf of McKinlay and/or Bagshaw for all hours worked or paid.

14. Plaintiffs are entitled to collect contributions on all hours of work where McKinlay and/or Bagshaw performed some covered work, and part of their time was spent performing other than covered work.

15. That plaintiffs are entitled to damages based upon the Labor Agreements and 29 U.S.C. § 1132(g), which entitles the plaintiffs to damages based upon delinquent contributions, liquidated damages, court costs, audit costs, prejudgment interest, and attorney’s fees.

16. That $23,114.50 is a reasonable attorney’s fee for plaintiffs’ counsel’s services in this case, applying the 12-factor test approved in this circuit. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.1975); Seymour v. Hull & Moreland Engineering, 605 F.2d 1105, 1117 (9th Cir.1979).

17. That defendants take nothing.

18. Any finding of fact which is deemed a conclusion of law is hereby incorporated into these conclusions of law.

19. Judgment shall be entered in favor of plaintiffs and against defendants in the sum of $76,931.88.


author: STUART, District Judge.

text:
    FELLOWSHIP BAPTIST CHURCH, et al., Plaintiffs, v. Robert T. BENTON, et al., Defendants.
    Civ. No. 81-546-C.
    United States District Court, S.D. Iowa, C.D.
    Sept. 26, 1985.

      Charles E. Craze and Daniel Loomis, Gibbs & Craze, Parma Heights, Ohio and Craig Hasting & Terry Hamilton, Clark, Clark & Hastings, Ames, Iowa, for plaintiffs.
    Thomas J. Miller, Atty. Gen. of Iowa, Merle Fleming, Asst. Atty. Gen., and Ivan T. Webber, Keokuk, Iowa, for defendants.
   ORDER'

STUART, District Judge.

This lawsuit involves the serious tensions that result when the religious freedoms guaranteed by the First Amendment to the United States Constitution appear to be in conflict with the state’s compelling interest in seeing that its children are properly educated.

Plaintiffs are two churches which operate Christian schools in Marshalltown and Keokuk, Iowa, as part of their “educational ministry”; the churches’ pastors; the schools’ principals and several teachers; students’ parents; and students of the schools. They brought this action for declaratory and injunctive relief pursuant to 42 U.S.C. § 1988, with jurisdiction predicated on 28 U.S.C. § 1343(3) and (4). Plaintiffs challenge the constitutionality of Iowa’s statutory and regulatory scheme which governs nonpublic education in the state. The broad issue is whether the requirements of Iowa’s compulsory education laws impose unconstitutional burdens on the plaintiffs. “Courts must move with great circumspection in performing the sensitive and delicate task of weighing a State’s legitimate social concern when faced with religious claims for exemption from generally applicable educational requirements.” Wisconsin v. Yoder, 406 U.S. 205, 235, 92 S.Ct. 1526, 1543, 32 L.Ed.2d 15 (1972).

The plaintiff churches operate day schools through the 12th grade. They do not comply with the reporting requirements of Iowa Code § 299.3. They do not employ certified teachers, which subjects the parents of the students to prosecution for failure to comply with the compulsory attendance requirements of § 299.1. Plaintiffs state their claims as follows:

I.Imposition of Iowa’s School Regulatory Scheme Upon the Plaintiffs Violates Rights of Plaintiffs Protected By The Free Exercise Clause of the First Amendment to the Constitution of the United States and by Article I, Sections 3 and 4 of the Iowa Constitution.
II.Imposition of the State Regulatory Scheme Upon the Churches, Pastors, Administrators, and Instructors Violates Rights Protected By The Establishment Clause of the First Amendment to the United States Constitution and By Article I, Sections 3 and 4 of the Iowa Constitution.
III.Imposition of the State Regulatory Scheme Violates the Rights of the Parents, Instructors and Children to Express, Transmit, and Receive Ideas Contrary To the Provisions of the First, Ninth and Fourteenth Amendments to the Constitution of the United States and Article I, Sections 9 and 20 of the Constitution of the State of Iowa.
IY. The Iowa School Laws.and Regulations are Vague in Violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 9 of the Iowa Constitution.
V.The Reporting Required of Plaintiffs by the Iowa School Laws and Regulations Violates Rights of Plaintiffs to Freedom of Association Protected By the First and Fourteenth Amendments of the United States Constitution and Article I, Section 20 of the Iowa Constitution.
VI.The Requirement That The Plaintiff Instructors Apply for and Accept a State Teacher’s Certificate When Their Faith Prohibits Them From So Doing Absolutely Infringes Their Right to Pursue Their Religious Avocation in Violation of the Due Process Rights Guaranteed Them By the Fourteenth Amendment to the United States Constitution and Article I, Section 9 of the Iowa Constitution.
VII.By the Terms of the Iowa Constitution and the Statutes Promulgated Thereunder, The State of Iowa May Not Require Certification of Private School Teachers.
VIII.Plaintiffs Have Been Denied or Are Purportedly Ineligible for the Grant of Statutory Exemptions From the Strict Application of the System of School Regulations and Controls in Violation of Their Right to Equal Protection of the Law Guaranteed By the Fourteenth Amendment to the United States Constitution.

The conflict between the free exercise of religion and government action is not new. In 1878 the Supreme Court dealt with the conflict between the Mormon Church’s religious doctrine requiring the practice of polygamy and the statute prohibiting it. The Court there made the distinction between beliefs and practices that still exists:

Laws are made for the government of actions and while they cannot interfere with mere religious beliefs and opinions, they may with practices.

Reynolds v. United States, 8 Otto 145, 98 U.S. 145, 166, 25 L.Ed. 244 (1878). See also Sherbert v. Verner, 374 U.S. 398, 402-03, 83 S.Ct. 1790, 1792-93, 10 L.Ed.2d 965 (1963).

In 1922, the Court in Meyer v. Nebraska, 262 U.S. 390, 403, 43 S.Ct. 625, 628, 67 L.Ed. 1042 (1923), considered the government’s power to control education in dealing with a Nebraska statute that prohibited the teaching of German language in schools. Although the Court recognized the “power of the State to compel attendance at some school and to make reasonable regulations for all schools,” it held that the statute interfered with the individual’s liberty interest and as applied “is arbitrary and without reasonable relation to any end within the competency of the state.” Ibid., 374 U.S., at 402-03, 83 S.Ct. at 1792-93.

In Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) the Supreme Court held that a statute requiring children between eight and sixteen who had not completed the 8th grade to attend public school interfered with “the liberty of parents and guardians to direct the upbringing and education of children under their control.” Ibid. at 534, 45 S.Ct. at 573. In connection with the State’s interest, the court stated:

No question is raised concerning the power of the State reasonably to 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 and that nothing be taught that is manifestly inimical to the public welfare.

Ibid, at 534, 45 S.Ct. at 573.

This Court obtains much of its guidance from Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), in which the court dealt with the conflict between Amish religious beliefs including their inseparable mode of life and the Wisconsin laws requirementing formal education to age sixteen, even if the 8th grade had been completed. The Yoder court sets forth the principles to be applied in resolving the conflict between the Free Exercise Clause and a State’s compelling interest.

There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. See, e.g. Pierce v. Society of Sisters, 268 U.S. 510, 534 [45 S.Ct. 571, 573, 69 L.Ed. 1070] (1925). Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system. There the Court held that Oregon’s statute compelling attendance in a public school from age eight to age 16 unreasonably interfered with the interest of parents in directing the rearing of their offspring, including their education in church-operated schools. As that case suggests, the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society. See also Ginsberg v. New York, 390 U.S. 629, 639 [88 S.Ct. 1274, 1280, 20 L.Ed.2d 195] (1968); Meyer v. Nebraska, 262 U.S. 390 [43 S.Ct. 625, 67 L.Ed. 1042] (1923); cf. Rowan v. Post Office Dept., 397 U.S. 728 [90 S.Ct. 1484, 25 L.Ed.2d 736] (1970). Thus, 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.” 268 U.S. at 535 [45 S.Ct. at 573].
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.

Ibid, at 213-14, 92 S.Ct. at 1532-33. The Court then stated:

The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled therefore, that, however strong the State’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.

Ibid, at 215, 92 S.Ct. at 1533.

Under the teachings of Yoder, this Court must first determine the quality of plaintiffs’ claims concerning the alleged encroachment of Iowa’s compulsory attendance requirements on their right to the free exercise of their religious beliefs. A determination of what is a religious belief or practice entitled to constitutional protection “may present a most delicate question.” Yoder at 215, 92 S.Ct. at 1533. However, “the very concept of ordered liberty precludes allowing every person to make his own standards on the matters of conduct in which society has important interests. Thus [if plaintiffs] asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by a majority * * *, their claims would not rest on a religious basis.” Yoder at 216, 92 S.Ct. at 1533.

However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question: religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit First Amendment Protection.

Thomas v. Review Board, 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981).

If the Court determines that fundamental claims of religious freedoms are at stake, the court must searchingly examine the interests that the State seeks to promote and the impediment to those objectives that would flow from recognizing the claimed religious beliefs and practices. Yoder, 406 U.S., at 221, 92 S.Ct. at 1536.

With these authorities and principles in mind the Court will examine the plaintiffs’ claims of violations of the Free Exercise Clause of the First Amendment by the State compulsory education laws and regulations.

REPORTS FROM PRIVATE SCHOOLS Section 299.3, Code of Iowa requires the principal of any private school in Iowa, upon request from the secretary of the school district in which the school is located, to furnish the “names, ages and number of days attendance of each pupil ... over seven and under sixteen years of age, the course of study pursued by each such child, the texts used, and the names of the teachers” during the preceding year.

The plaintiff churches, pastors, teachers and administrators allege that the reporting requirement violates their religious belief in the “Headship of Christ” over the church since the church and church schools are inseparable. They also allege that the reporting requirements result in entanglements between the church and state that violate long-held, historic Baptist doctrine of separation of church and state. The parents and children have no religious objection to being required to make such report individually or by a parent representing all parents.

Clearly, the “Headship of Christ” is a sincerely held religious conviction of these plaintiffs. However, the Court has had considerable difficulty in understanding how the reporting requirement denies the free exercise of that religious belief. As the Court understands plaintiffs argument, they claim that by complying with the state’s request for that information, they are acknowledging the State’s headship over Christ or a dual headship of the Church. The Court cannot accept this argument. There is no evidence that the reporting of the requested information violates any other proclaimed sincerely held religious belief. The report is informational only and in no way attempts to influence or control the operation of the school or any other church activity. The Court finds that the reporting requirement does not deny the plaintiffs the free exercise of their religion.

Even if it is assumed the reporting requirement does impinge upon plaintiffs’ free exercise of religion, the states interest in knowing whether its children are attending school and receiving an adequate education is of sufficient magnitude to override the plaintiffs’ religious interest in an exemption from the reporting requirements. This is necessarily so because without the information to be included in the reports, the State would be greatly impeded, if not totally precluded, from insuring that its children are receiving an adequate education. Reports submitted by individual parents or an elected representative would not provide a means by which the information could be verified and there is no guarantee all present or future parents would agree to such proceedings. Thus, a substantial impediment to the State’s objective would still result. Section 299.3 places the responsibility for reporting on the principal and does not unconstitutionally impinge upon the plaintiffs’ right to free exercise of religion.

“Judicial caveats against entanglement must recognize that the line of separation, far from being a ‘wall’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971). The relationship between the State and the churches, pastors and administrators created by the reporting requirement is not excessive. State requirements under the compulsory school attendance laws are necessary and permissible contacts. Lemon at 614, 91 S.Ct. at 2112.

The information requested is readily available at the school and would not be a burden on the school’s limited staff. Evidence has been presented that in private schools, with larger enrollments than either of the plaintiff schools, the completion of the required report takes from a half hour to a half day and can be done by the secretary with the principal being ultimately responsible. This is all that is required of the plaintiff principals by section 299.3. These requirements do not unconstitutionally impinge upon the plaintiffs right to free exercise of religion or result in an unconstitutional entanglement between the church and state.

CERTIFIED TEACHERS

Although plaintiffs suggest that there may be some uncertainty as to the meaning “certified teacher” and that perhaps the legislature meant “competent teacher”, such argument is without merit. The legislature amended the statutes to change the requirement from “competent” to “certified” in 1953. Thus changing the requirement from a subjective factual evaluation to an easily identifiable objective standard. Certified teacher in § 299.1 means a teacher with a certificate issued in accordance with Chapter 260 Code of Iowa and the applicable rules and regulations. Accordingly the term “certified teacher” is not unconstitutionally vague. State v. Moorhead, 308 N.W.2d 60, 64 (Iowa, 1981).

To obtain a certificate to teach in Iowa, an applicant must be a graduate of either an Iowa institution approved by the state board of public instruction or a non-Iowa institution accredited by the regional accrediting agency which meets certain other criteria. Iowa Administrative Rules, Public Instruction Department 670-13.1, 670-13.10 and 670-13.11. A procedure is provided by which a graduate from a non-recognized institution may take certain courses to validate the degree and obtain a certificate.

Teachers in these two schools are not certified and do not have degrees from recognized institutions. Some possess baccalaureate degrees, others while not possessing a degree have had some formal post high school education. Still others have no formal post high school education.

Plaintiffs raise the following constitutional objections to the certificate requirement.

1. The State’s human relations require»ments for teacher education leading to certification are contrary to sincerely held religious beliefs of the churches and their members.

2. Supervision of certified teachers by the Iowa Professional Teaching Practices Commission violates the Free Exercise Clause of the First Amendment by allowing the State to intrude upon the churches practices, policies and beliefs.

3. The teachers are religious teachers called by God to teach in these Christian schools and it would be violative of their religious beliefs to seek state certification or approval before they could do God’s will. Thus the certification requirement would violate their belief in the Headship of Christ.

The State requires recognized institutions to include a human relations component in their programs leading to teacher certification to “contribute to the development of sensitivity to and understanding of the values, beliefs, lifestyles and attitudes of individuals and the diverse groups found in a pluralistic society.” 670-13.18(257) Standards for approved components are set out in 670-13.21.

Plaintiffs do not object to children or teachers being made aware of current events, or diverse view points, values and attitudes, but object to them being taught from other than a Biblically-based philosophy. They believe these matters should be submitted to rigorous scrutiny from a Biblical philosophical base and method of reasoning. Their principal objection was the reference to “sexism” as a “dehumanizing bias” in view of their sincerely held religious beliefs that God provided different roles for the male and female; that the man is the head of the household and must love his wife as Christ loves the church and that the wife must obey her husband. The only other specific matter raised was the question of homosexuality and whether teachers seeking certification would be required to view and or teach homosexuality as an acceptable alternative lifestyle. There appeared to be no problem with racism, prejudice or discrimination.

The Court does not find anything in the State requirements that requires agreement with or acceptance of the values of other societal groups or individuals. There is nothing that suggests a person should abandon his own beliefs and set of values. The president of one of the Bible Colleges approved by plaintiffs indicated his students were made aware of and discussed other viewpoints and values. He indicated that the best way to test one’s faith and beliefs was to compare them with other viewpoints and values. Although the State could not permit the human relations component to be taught from a Biblical point of view, the prospective teacher is not prevented from evaluating them from a Biblical base as long as he or she is aware of and understands the diversity. The Court is of the opinion that the requirement for a human relations component in a teacher’s education does not deny the plaintiffs the free exercise of their religion relating to their beliefs in the different Biblical roles of the sexes.

The plaintiffs believe that the church and the education of the children are inseparable and that the parents have the responsibility for the religious upbringing and education of their children. They believe that each person is called to his life’s work by God and that a person would be sinning if he or she disobeyed God and did not do God’s will by pursuing the work to which he or she has been called. They therefore not only object to certification because of the human relation component but also because it violates the sincerely held religious belief in the headship of Christ and the long-held Baptist doctrine of separation of church and state.

In this area the Court believes there is a definite encounter between the sincerely-held religious beliefs of these plaintiffs and the State’s requirements. The State’s interest in this matter, the education of its children is “perhaps the most important function of state and local governments.” As it appears to the Court that the certification requirement does deny the free exercise of plaintiffs’ religious beliefs, the state must show that the State’s interest in the certification requirement overrides plaintiffs’ interest claiming protection under the Free Exercise Clause. Yoder, 406 U.S., at 215, 92 S.Ct. at 1533.

Evidence was introduced showing that there are no scientific studies indicating that a teaching certificate did or did not make better teachers. There was also evidence that some colleges graduate incompetent persons who, because of the degree, are eligible for a certificate and that an examination should be required for teacher certification. Anecdotal evidence was submitted showing some untrained persons had become excellent teachers.

All of this may be accepted as true, but it misses the point. The question is how important is the certification requirement to the state’s interest in seeing its children receive the kind of education demanded by today’s society. The importance lies, not in the piece of paper itself, but in the education a person must receive to become eligible for the certificate. Courses in child psychology, how children learn, various methods of conveying information and developing the learning process and knowledge of the subject matter will prepare a person to be a better teacher. Recognized institutions offer the courses of this nature that Iowa requires for certification. Graduates of other schools can satisfy certain educational requirements and qualify for a certificate. This kind of knowledge is essential if one is to become a good teacher.

The certificate is no guarantee that everyone who holds one is a competent teacher. It does guarantee that the holder has been exposed to the knowledge that a competent teacher should have. The substitution by the legislature of “certified teacher” for “competent teacher” supplies an objective, easily identifiable requirement indicating that the teacher should know how to teach.

Plaintiffs object because the certificate requirement relies upon the process (education of the teacher) rather than the product (Is the child learning?). Historically, the emphasis has been on the process. Iowa has required some sort of certificate since 1863. It has been assumed that if the process is followed the children will learn. Recently there has been more interest in attempting to determine if the children are learning. Plaintiffs suggest that standardized testing of the pupils be substituted for both the certification and “equivalent education” requirements as a least drastic means. While testing is a valuable tool, it is not sufficient in and of itself to determine whether a student is receiving an adequate education. Tests primarily determine knowledge of content of the subject matter. They do not test other aspects of education necessary to prepare a student for life in today’s society.

The Iowa Supreme Court dealt with the use of testing to satisfy the State’s interest in the proper education of its children and decided that mere testing would be wholly inadequate to protect the State’s rightful interest. Johnson v. Charles City Community School Board, 368 N.W.2d 74, 81 (Iowa 1985). This Court agrees with that decision for the reasons given therein.

While certification may not be infallible and does not assure us that every teacher is a good teacher, it appears to be the best method now available to satisfy the state’s prime interest in seeing that its children are taught by capable persons.

The following cases have approved of the certification requirement. Sheridan Road Baptist Church v. Department of Education, 132 Mich.App. 1, 348 N.W.2d 263, 270-74 (1984); State v. Rivinius, 328 N.W.2d 220, 229 (N.D.1982) cert. denied, 460 U.S. 1070, 103 S.Ct. 1525, 75 L.Ed.2d 948 (1983); and State v. Faith Baptist Church, 207 Neb. 802, 301 N.W.2d 571, 579 (1981) appeal dismissed 454 U.S. 803, 102 S.Ct. 75, 70 L.Ed.2d 72.

In this instance the Court believes that the State has shown its interest in certification to be of sufficient magnitude to override the plaintiffs interest claiming First Amendment protection.

EQUIVALENT EDUCATION

Plaintiffs claim that the term “equivalent education” is unconstitutionally vague on its face in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. No other statute defines equivalent instruction. The term was used, but not defined, by the Supreme Court in Yoder. Ibid. 406 U.S., at 213, 92 S.Ct. at 1532.

In State v. Moorhead, 308 N.W.2d 60 (Iowa 1981) the Iowa Supreme Court rejected such claim saying:

The term “equivalent” is defined to mean “equal in force or amount ...: like in signification or import ...: equal in value.” Webster’s Third New International Dictionary 769 (unabridged 1966). A fair reading of section 299.1 indicates that the term “equivalent instruction” refers back to the use of “public school” in paragraph one. Thus, “equivalent instruction” is instruction which is equal in kind and amount to that provided in the public schools.
Section 257.25, The Code, establishes detailed curriculum requirements for public and nonpublic schools. This provision establishes reasonable guidelines for determining the meaning of “equivalent instruction.”

Ibid, at 64.

A statute may be saved from a vagueness challenge by an interpretation by a state appellate court. Colten v. Kentucky, 407 U.S. 104, 111, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972). However, the same Iowa Supreme Court in Johnson v. Charles City Community School Board, 368 N.W.2d 74 (Iowa 1985) declined to do so as to section 257.25 and the term “equivalent instruction” as it applies to private religious schools saying:

In Moorhead, we said the term means “instruction which is equal in kind and amount to that provided in public schools.” Id. We however did not suggest that private religious schools can be made to submit to the sort of state regulation condemned in [State v.] Whisner [47 Ohio St.2d 181, 351 N.E.2d 750 (1976)].
For reasons of their own the plaintiffs did not appeal on grounds of vagueness. This issue was litigated and decided by the trial court but it was not made an issue on appeal. We mention this because of the unusual and unsatisfactory posture of certain crucial aspects of this controversy. Before the school can be required to submit to reasonable minimum regulations it is obvious the state is bound to place private schools on notice of the nature and extent of the necessary minimum standards. Our holding in Moorhead is not authority to the contrary. Moorhead sought to educate his children by himself, without the aid of any school. No first amendment rights were claimed. Our Moorhead decision is not in point for persons who seek to operate a religious school for their own and other people’s children.
When the state fails to adequately set necessary minimum standards for private religious schools, the patrons are presented with a ready defense to truancy charges. State ex rel. Nagle v. Olin, 18 O.O.3d 503, 511, 64 Ohio St.2d 341, 354-55, 415 N.E.2d 279, 288 (Ohio 1980) (“[UJntil such time as the State Board of Education adopts minimum standards which go no further than necessary to assure the state’s legitimate interests in the education of children in private elementary schools, the balance is weighted, ab initio, in favor of a First Amendment claim to religious freedom.”); State v. La Barge, 134 Vt. 276, 357 A.2d 121, 125 (1976) (There is a special duty given the state department of education to define equivalent education under its regulatory authority, failing which, a prosecution should be dismissed.)
The trial court attempted with considerable effort and skill to supply standards by sorting through various school related statutes and ferreting out minimum statutory requirements. The state, which did not cross-appeal, is not altogether satisfied with the standards thus set and now invites us to refine and expand the trial court’s efforts. We decline.

Ibid, at 79-80.

Evidence on the meaning of equivalent instruction was conflicting. The State Superintendent interpreted it to be limited to a minimum number of days and the required courses listed in § 257.25(3) and career education § 280.9 without any inquiry into the content of those courses. The superintendents of schools of two school districts indicated they would inquire much more intrusively into the curriculum before making a recommendation to the local school board, which has the responsibility of determining whether the student is obtaining an equivalent education.

The problem, of course, is, how far can a state intrude into the curriculum of a private religious school to satisfy its interest without being outweighed by the impingement of such intrusion upon the free exercise of religion and the right of parents to direct the upbringing and education of their children. Johnson v. Charles City, supra at 78-80; State v. Whisner, 47 Ohio St.2d 181, 211-12, 351 N.E.2d 750, 768 (1976).

The Court could accept the least intrusive version of equivalent instruction and hold those requirements constitutional, but there is no indication that is what the legislature intended. Such limitation would do little to help the state in determining whether the student is receiving an equivalent instruction. It would open the door to a flood of law suits as to whether it was being constitutionally applied to the particular plaintiffs as every local school board could come up with a different interpretation and intrusion.

This Court agrees with the Iowa Supreme Court when it said:

A court is without either the resources or expertise necessary to draft such a regulation. See Wisconsin v. Yoder, 406 U.S. at 235, 92 S.Ct. at 1543, 32 L.Ed.2d at 36. (“Courts are not school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of discrete aspects of a State’s program of compulsory education.”); State ex rel. Nagle v. Olin, 18 O.O.3d at 510, 64 Ohio St.2d at 353, 415 N.E.2d at 288, (“the courtroom is simply not the best arena for the debate of issues of educational policy and measurement of educational quality.”) (quoting State v. Shaver, 294 N.W.2d 883, 900 (N.D.1980)).

This is especially true when the State’s interest in educating its children collides with First Amendment Right of Free Exercise.

Moreover, the Court finds, in light of the varying interpretations offered by State and County officials charged with assessing compliance with the law, that the term “equivalent instruction” fails to give adequate notice to the ordinary man of what is prohibited by the statute. See Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972).

Therefore, the Court therefore holds that the term “equivalent instruction” is unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and may not be used as a compulsory education requirement without further definition.

The Court cannot leave this issue without pointing out other troubling matters. There may be problems when the responsibility of determining equivalent education is placed on local school boards even when it is more closely defined for two reasons. First each local school board may still have a different interpretation. Second, local school boards have an inherent conflict of interest since each student in a private school is potentially a source of additional state aid. Some other procedure might eliminate future litigation.

AMISH EXEMPTION

Plaintiffs claim that they have been denied equal protection under the Fourteenth Amendment to the United States Constitution because they were denied the exemption from school standards contained in § 299.24 Code of Iowa, which provides:

299.24. Religious groups excepted from school standards
When members or representatives of a local congregation of a recognized church or religious denomination established for ten years or more within the state of Iowa prior to July 1, 1967, which professes principles or tenets that differ substantially from the objectives, goals, and philosophy of education embodied in standards set forth in section 257.25, and rules adopted in implementation thereof, file with the state superintendent of public instruction proof of the existence of such conflicting tenets or principles, together with a list of the names, ages, and post-office addresses of all persons of compulsory school age desiring to be exempted from the compulsory education law and the educational standards law, whose parents or guardians are members of the congregation or religious denomination, the state superintendent, subject to the approval of the state board of public instruction, may exempt the members of the congregation or religious denomination from compliance with any or all requirements of the compulsory education law and the educational standards law ....

This exemption has been granted only to Amish schools and one conservative Mennonite school, all of which follow the style of life discussed fully by the Supreme Court in Yoder which is an integral part of their religion.

The Independent Baptist Churches grew out of the same Anabaptist religious philosophy as the Amish and Mennonites. They consider themselves “in the world but not of the world.” They do not accept many of the worldly ways. Their social life, as well as their religious life, is centered in the church. However, the members live and work in the modern communities. They engage in the ordinary occupations to which they have been called. They own radios, televisions, motor vehicles and accept and use other modern conveniences and advancements. They dress conservatively, but not distinctly.

In Yoder, the Supreme Court made it very clear that it was the Amish separateness from contemporary society for over 300 years that led the Court to the holding that the “First and Fourteenth Amendments prevent the State from compelling respondents to cause their children to attend formal high school to age 16.” Yoder, 406 U.S., at 234, 92 S.Ct. at 1542. The Yoder court recognized:

It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when the goal is preparation of the child for life as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.

Yoder at 222, 92 S.Ct. at 1536.

The Iowa Supreme Court dealt with the same issues under almost identical facts in Johnson v. Charles City Community School Board, 368 N.W.2d 74, 83-85 (Iowa 1985). The Court agrees with the reasoning of the Iowa Supreme Court in Johnson and adopts its holding.

The Court is also conscious of the impact that granting these plaintiffs an exception to the compulsory education requirements could have on public education and the courts. Under Yoder and Johnson a clear line of demarcation is established that offers guidance to parents, school officials and the courts. A blurring of that line by granting an exception here would create an impossible burden upon all persons and agencies involved to decide whether minor variations of fact one way or the other entitled each individual church school to an exception. The Court is convinced that the Supreme Court intended the exception to be a narrow one.

The Court must not ignore the danger that an exception from a general obligation of citizenship on religious grounds may run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise.

Yoder, 406 U.S., at 220-21, 92 S.Ct. at 1535 -36.

In Yoder the court found that “compulsory school attendance to age 16 for Amish children carries with it a very real threat of undermining the Amish community and religious practices as they exist today.” Yoder 406 U.S. at 218, 92 S.Ct. at 1534. No such threat faces the plaintiffs from Iowa’s compulsory education requirements. The Court holds that failure to include these plaintiffs within the Amish exception does not violate the Free Exercise Clause of the First Amendment or the Equal Protection Clause of the Fourteenth Amendment.

IOWA CONSTITUTIONAL PROVISIONS

Plaintiffs argue that the Iowa Constitutional provisions are more specific and provide more protection for the free exercise of religion than the United States Constitution. The Court has examined sections 3, 4 and 9 of Article I and sections 8, 12 and 2nd sections 1-6 of the Education Article. The Court finds that the more specific language is not related to the issues before this Court. The Court is also convinced by the position the Iowa Supreme Court took in Johnson v. Charles City Community School Board, 368 N.W.2d 74, that it would hold that the protection afforded the free exercise of religion by the Iowa Constitution is the same as that given by the United States Constitution. The Court holds that the compulsory education requirements of the Iowa statutes and the Amish exception do not violate any provisions of the Iowa Constitution.

The Court holds that other constitutional issues raised by plaintiffs, but not treated hereinabove are without merit.

IT IS THEREFORE ORDERED that the Clerk of Court shall enter judgment in favor of the defendants and against the plaintiffs for the costs of this case.

      . 670-13.21(257) Standards for approved components. Human relations components will be approved by the state board of public instruction upon submission of evidence that they are designed to develop the ability of participants to:

        13.21(1) Be aware of and understand the various values, life styles, history, and contributions of various identifiable subgroups in our society.
      13.21(2) Recognize and deal with dehumanizing biases such as sexism, racism, prejudice, and discrimination, and become aware of the impact that such biases have on interpersonal relations.
      13.21(3) Translate knowledge of human relations into attitudes, skills, and techniques which will result in favorable learning experiences for students.
      13.21(4) Recognize the ways in which dehumanizing biases may be reflected in instructional materials.
      13.21(5) Respect human diversity and the rights of each individual.
      13.21(6) Relate effectively to other individuals and various subgroups other than one’s own.

      . “Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.” Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954).