Family Court Must Not Discriminate Against Religious Schooling

Nevada Supreme Court holds that trial court wrongly rejected father's preference for religious schooling just because of mother's religious objection.


From Arcella v. Arcella, decided yesterday by the Nevada Supreme Court:

Melissa and Matthew Arcella divorced in 2009. They agreed to and were awarded joint legal and physical custody of their two children, four-year-old R.A. and two-year-old W.A. Regarding their children's education, the divorce decree provided: "Subject to both parties mutually agreeing to send their children or child to private school, [t]he parties agree to equally split the cost of private school tuition and costs for the minor children."

In 2016, the parents agreed that R.A. should move to a larger middle school, but they disagreed about which one:

Matthew moved the district court for an order directing that R.A. attend a religious private school, Faith Lutheran. He argued that it was in R.A.'s best interest to attend Faith Lutheran because she was used to private schooling, she wanted to enroll there, and Faith Lutheran had a high college placement rate.

Melissa objected to her child receiving a religious education at Faith Lutheran. She argued that R.A. should attend the local public school, Bob Miller Middle School, which was highly ranked for academics and closer to R.A's primary residence.

The distrct court concluded that both schools were good, and didn't make any findings that one was better, but chose the public school "because it was 'taking into consideration [Melissa's] religious objection.'" And the mother, on the appeal, argued that her religious objection should categorically trump:

"It is not only that the court must not interfere; even more so, the state and federal government may not seek to indoctrinate the child with their religious views, particularly over the objection of either parent." See Newdow v. U.S. Congress (9th Cir. 2002) (emphasis in original). [EV adds: The Ninth Circuit decision was later reversed on procedural grounds by the U.S. Supreme Court.] In Newdow, the mother had sole legal custody of the child. Dad objected to religious indoctrination by a school, of which Mom approved. The Newdow court held that even if a parent has sole legal custody of a child, that parent has no power to insist that the child be subjected to unconstitutional state action indoctrinating religion on the child. [Footnote; The parties have joint legal custody of the children. As such, Mom, as the objecting parent, has a stronger position to object to the religious indoctrination than the father did in Newdow, as he had no legal custody rights.]

The 9th Circuit holding goes well beyond the facts of this case. The 9th Circuit ruling provides that courts may not mandate a child to say "under God" once a day during the 1954 version of the Pledge of Allegiance. A fortiori, it would be wholly impermissible for a court to order a child to attend a religious private school where "The salvation of each student is our school's first priority" and where students are required to take a Theology course each year they attend Faith Lutheran. It is worth noting that education is not the FL's first priority for its students.

The 9th Circuit case clearly provides that the courts cannot order religious indoctrination upon a child in any form if even one parent objects. Here, Mom is objecting. Mom has a well-based, clearly-stated objection to the children attending a religious school. Mom reasserts her First Amendment rights (as well as Equal Protection) under the United States Constitution (applicable via the 14th Amendment) and under the Nevada Constitution. The parties have joint legal custody of the children. As such, Mom, as the objecting parent, has a stronger position to object to the religious indoctrination than the father did in Newdow, as he had no legal custody rights.

So, even if the Court entertains Dad's arguments on rehearing (which is not permissible as the Court has no jurisdiction over the rehearing), federal law from the 9th Circuit simply does not permit religious indoctrination of a child of a parental objection. It is worth stressing that the 9th Circuit upheld the father's right to not have his child subjected to religious indoctrination even though the father had no legal custody rights as the mother had sole legal custody.

But the Nevada Supreme Court rejected the mother's argument and the district court's approach:

When a district court decides a child's best interest, "[t]he First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion," Epperson v. Arkansas (1968). Neutrality means that the district court "may not be hostile to any religion or to the advocacy of no-religion." Epperson; see also Abington Sch. Dist. v. Schempp (1963) ("[T]he State may not… affirmatively oppos[e] or show[ ] hostility to religion, thus preferring those who believe in no religion over those who do believe." (internal quotation marks omitted)).

The district court violates this principle of neutrality when it treats one parent's religious objection as dispositive when deciding between a religious school and a nonreligious school. Jordan v. Rea (Ariz. Ct. App. 2009). "Excluding religious schooling from all potential school options, in effect, eliminates the option of religious schooling rather than treating it neutrally." Id.; see also Yordy v. Osterman (Kan. Ct. App. 2007) (stating that a court should "disregard [ ] the conflicting religious preferences of the parties"); Hoedebeck v. Hoedebeck (Okla. Civ. App. 1997) ("[T]he court may not decide that one religion is better or worse than another, but it does have the duty to determine the best interests of the children.").

Here, the district court disfavored religion rather than acting neutrally toward it. In ordering that R.A. attend a nonreligious school, the only explanation the court provided was that it had "tak[en] into consideration [Melissa's] religious objection." The district court made no findings regarding the child's best interest and appears to have treated Melissa's religious objection as dispositive in an attempt to avoid constitutional issues related to religion. In trying to steer clear of constitutional issues, however, the district court collided head-on with the First Amendment's Establishment Clause by disfavoring religion.

In sum, a district court does not violate the First or Fourteenth Amendments by ordering a child to attend a religious school over a parent's religious objection. Indeed, the district court must order a child to attend the religious school if attendance at that school accords with the child's best interests. The district court here abused its discretion by deferring to a parent's religious objection instead of reviewing Matthew's affidavits for adequate cause and then holding an evidentiary hearing to determine which school served the child's best interest.

That's correct, I think; the father doesn't have a right to demand that R.A. go to a religious school over the mother's objection, but neither does the mother have a right to demand that R.A. go to a secular school over the father's contrary preference. When there is such a conflict, a court must decide, and it must do so on a basis other than the school's religiosity; the Nevada Supreme Court noted several religion-neutral factors for lower courts to consider in making this decision:

(1) The wishes of the child, to the extent that the child is of sufficient age and capacity to form an intelligent preference;

(2) The child's educational needs and each school's ability to meet them;

(3) The curriculum, method of teaching, and quality of instruction at each school;

(4) The child's past scholastic achievement and predicted performance at each school;

(5) The child's medical needs and each school's ability to meet them;

(6) The child's extracurricular interests and each school's ability to satisfy them;

(7) Whether leaving the child's current school would disrupt the child's academic progress;

(8) The child's ability to adapt to an unfamiliar environment;

(9) The length of commute to each school and other logistical concerns;

(10) Whether enrolling the child at a school is likely to alienate the child from a parent.

The Establishment Clause has indeed been read as barring public schools from teaching religion. (The dispute in Newdow was whether a public school's conducting a Pledge of Allegiance that included "under God" fit within this rule; but even setting that particular dispute aside, it's well-settled that a public school can't have a religious curriculum of the sort that Faith Lutheran seems to have.) But it doesn't follow that the Establishment Clause disfavors religious schooling as an option for families where the parents don't agree on which school to choose. Rather, I think the Nevada Supreme Court correctly read the Court's First Amendment precedents as generally requiring courts to treat religious and secular schools neutrally in this situation.

Note that the court didn't discuss the cost of the religious school to the objecting parent as a possible factor weighing in favor of the public school (if all the other factors are equal); but this might be because, at least according to the father's brief, the father offered to pay 100% of the school tuition. The mother's brief didn't mention cost.

Finally, for cases involving the opposite discrimination—in favor of religiosity—see pp. 722-29 of my Parent-Child Speech and Child Custody Speech Restrictions article, which cites cases from various states that prefer more religious parents over nonreligious or less religious ones in child custody decisions. I think those decisions violate the First Amendment as well, and the Nevada Supreme Court's reasoning in this case would support such a conclusion. (I've seen no Nevada cases that show such a preference for the more religious parent.)

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  1. Wouldn’t have guessed that Arthur L. Kirkland is a Nevada family court judge. He must do that craft beer thing on the side (English bitters?).

    1. Reason needs a like button for comments. 🙂

  2. Does anyone read the Divorce agreement to require both parents consent to send the child to ANY private school. I know it can be read to only refer to payment responsibilities if both agree, but that would seem to allow a parent to not agree for the sole purpose of not paying knowing that is where the kid will go anyway. I don’t think that is what was in the parents mind when they agreed to that clause. It seems more likely to me that they meant both parents must agree to send the child to private school.

    I do recognize that if that was the case the mother would likely have raised that, so I’m probably wrong. But the other reading doesn’t seem right to me. Particularly if the parent that wanted to send the child to private school and would then have to foot the bill was the one receiving child support (haven’t read the case and maybe it is sexist of me but I doubt that’s the case here). That would almost certainly require the parent that isn’t supposed to be forced to pay to up child support instead which is no different.

  3. I recommend that you guys quit focusing on me and concentrate on perfecting a machine that mass-produces cranky, elderly, easily frightened, religious, rural, poorly educated, selfish, diffusely intolerant, stale-thinking, science-disdaining, economically inadequate, southern white males. (The lawyers among you should work on enabling the Republican Party to register such newly minted goobers to vote.)

    I also recommend Lindemann’s Framboise, Guinness Stout (nitrogenated can), Troegs Mad Elf, Anderson Valley Winter Solstice, Ramstein Winter Wheat, Upslope Christmas Ale, and Rare Barrel Home Sour Home. Happy holidays!

    1. Can you spell “tedious”? I knew you could.

    2. At least you have Guinness with the wizzer.

  4. “Subject to both parties mutually agreeing to send their children or child to private school, [t]he parties agree to equally split the cost of private school tuition and costs for the minor children.”

    The parties do not mutually agree to private schooling. That should settle the matter in favor of public school, regardless of the mother’s reason for objecting to the private school.

    1. Even if the parties hadn’t mutually agreed to send their children to private school, they also didn’t mutually agree to send their children to public school. Why then should the dispute be settled in favor of public school?

      1. Why then should the dispute be settled in favor of public school?

        Because it’s free and not obviously inferior in quality.

    2. That clause simply states that, if the parents agree to send a child to a private school, then they agree to split tuition and costs.

      “Since mom didn’t agree to send the child to the school, she’s not liable for the costs”, is as far as you can take that

    3. As others have noted: It looks like the parents’ agreement specifically contemplated sending their child to private school and outlined the conditions where that could be done. (ie, that they Both agree to send the kid to private school, that they both agree to split the cost of tuition and other related costs).

      I’d agree that, in general, the First Amendment (or similar state constitutional provisions) cannot favor non-religious over religion, or vice-versa. But here, it seems clear that the parents, in forming the agreement, thought that sending the kid to public schools would be the “default” path, and that any deviation from this required an ‘okay’ from both parents. Obviously, I know nothing about the case–other than the tiny bit that you stuck in the OP–but I’m sort of surprised that this analysis was not the beginning and the end of the case.

      Judge’s ruling (as I would have seen it). Parents agreed, implicitly, that sending their kids to public schools was an acceptable alternative. One parent wants to change this, while the other parent wants to keep it. The agreement clearly states that both parents must agree, in order to send the kid to private school. And, absent evidence that the public school is wildly inappropriate for this particular child, there is no reason to throw out the parents’ agreement, which clearly stated their mutual decision re the possibility of private schools.”

      1. 2nd paragraph: “…He argued that it was in R.A.’s best interest to attend Faith Lutheran because she was used to private schooling…”

        The child was already in a private school and they wanted to move her to a larger middle school.

  5. I’m not sure I agree with this analysis; I think I prefer the District Court. An a-religious school is different than an “anti-religious” school.

    Here, you have two parents with equal rights, and a Court stepping in and being asked to endorse religious schooling over the objection of one of the parents. Due to the child being a minor, basically this impacts not merely the child’s exposure to religion, but in a legal sense, the Parent’s.

    Accordingly, the State taking action that, in a legal sense, forces a religion (and its indoctrination) upon the mother (through the child) over her objection, seems to me to be contrary to the establishment clause (as interpreted).

    Meanwhile, sending the child to a non-religious school does not have the same impact on the father, in that the school does not “preach” towards or against his or her religion (no indoctrination) – and the father remains able to indoctrinate his child in religion through another manner.

    1. “Here, you have two parents with equal rights”, and you are demanding that the Court trample the rights of the parent you don’t like.

      What you are claiming boils down to “there should be a government bias for non-religious over religious”. I’m sure your desire is sincere. I’m also sure that any reasonable reading of the 1st Amendment prevents the government from having that bias.

      1. Greg,
        I am not seeing how the religious parent’s right are being trampled. You have two possibilities:
        a. Kid goes to a religious school, where everyone agrees the kid will–not surprisingly–be indoctrinated in religious practices/beliefs that Parent One objects to.
        b. Kid goes to a public school, where not one second will be spent promoting (OR CRITICIZING) the religious practices/beliefs that Parent Two supports.

        You see “b” as trampling Two’s rights. I think most of us see this as, “It’s not harming, or helping, that parent’s rights. He or she is free to indoctrinate the child in the religion the other 17 hours of the day. But school will be a neutral zone.”

        Greg, does the parents’ earlier agreement (Where they BOTH agreed that any sending of the child to a religious school required the permission of Both parents) have any influence or meaning for you? If not, why not? (I am asking this as a legal question, not as a moral/religious/philosophical question.)

        I am not an absolutist. I think custody agreements should always be subject to judicial review, even if I find any “best interests of the child” standards to be painfully opaque. But don’t you agree that, if one parent wants to throw out part of a mutually-agreed-upon plan, they have the burden of proof? And that this should be a reasonably-high burden?

        1. Are you aware that parents have a recognized constitutional right to send their children to private schools? Telling a parent he can’t send his child to a religious school violates that right.

          Also, you’re just accepting that private schools indoctrinate and public schools don’t.

        2. “But don’t you agree that, if one parent wants to throw out part of a mutually-agreed-upon plan, they have the burden of proof? And that this should be a reasonably-high burden?”

          Neither party was asking the court to throw out part of a mutually-agreed-upon plan, so your contemplated burden stacking is of no moment. The choice between the two schools did not violate any part of the divorce decree.

    2. “Here, you have two parents with equal rights…”

      This is the wrong framework for thinking about resolution of the dispute. The parents’ rights aren’t relevant to the state law analysis of custody. The only thing the district court can consider is the child’s best interests. By considering the religious objections of at least one of the parents, the district court erred. The only way to avoid any possible endorsement of religion is the result the Supreme Court reached, since it renders irrelevant either of the parents’ religious predilections.

      “Accordingly, the State taking action that, in a legal sense, forces a religion (and its indoctrination) upon the mother (through the child) over her objection, seems to me to be contrary to the establishment clause (as interpreted).”

      The district court is required to force a religion and its indoctrination on the mother this way, if it finds that the religious school is in the child’s best interests, so long as the reasons aren’t based on the religion.

  6. Pt. 1

    I agree with Professor Volokh that, when setting custody terms – schooling or otherwise – the best interests of the child ought to govern the analysis and that, when it comes to schooling, the twelve non-religious reasons identified by the Nevada Supreme Court for choosing the best school for a child, are a good place to start.

    Where I part company is that I don’t think relying on non-religious reasons for picking which school is in a child’s best interests, answers forthrightly the question posed by this case. Of course a court could choose non-religious reasons to send a kid to public school or religious school and, in doing that, would avoid turning itself into a sectarian tribunal administering the laws of a particular religion. That is as it should be.

    But here’s the thing about parents and religion: at least some of them believe, as the father in the Nevada case apparently does, that religious education is in the best interests of their child. Religiosity at this school isn’t incidental to how the father thinks of his kid’s welfare – it’s integral to it. So, for example, a faithful father might conclude that his preferred religious school is a little weak on science and technology, pretty good on writing and extracurriculars, and a home run on religious education. A competing public school may be much better on the first two metrics and an abject failure on the third, but it’s the third – the religious education – that matters most to the father.

  7. Pt. 2

    So what then? Can a court give weight to the father’s religious preferences? If so, can a secular court enter an order, enforceable on pain of contempt of court and a possible jail sentence, that a child shall be educated in a particular faith and that considerations of faith were, for this particular child, in the child’s best interest? That starts to sound like a secular court using its state power to dictate a religious preference. If the mother refused to send the child to the religious school because she disagreed with the religious preference explicit in the court’s ruling, could the court lock her up for contempt of court? That sounds a lot like state action in support of a religious preference.

    The alternative to putting courts in the position of deciding whether a religious preference is in a child’s best interest is, instead, to ask the child custody court to make its decision by reference to non-religious criteria. That’s what Nevada’s Supreme Court did. Fair enough. But isn’t the determination to use only non-religious criteria when assessing a child’s best interest implicitly and inevitably a determination that religious values aren’t part and parcel of the best interests of a child? Isn’t that, itself, the sort of minimizing and marginalizing of religious imperatives that the Nevada Supreme Court says the lower court erroneously indulged?

    1. “So what then? Can a court give weight to the father’s religious preferences?”

      No. The holding says no; it can’t even consider the father’s religious preference for the same reasons it can’t consider the mother’s religious objection.

      “But isn’t the determination to use only non-religious criteria when assessing a child’s best interest implicitly and inevitably a determination that religious values aren’t part and parcel of the best interests of a child?”

      No, it’s just a limitation on the universe of “best interests of a child” considerable by state courts. This result is mandated by the Constitution, specifically the first and fourteenth amendments.

  8. Pt. 3

    All of which is to say that the most interesting question is the hardest and it’s been evaded here: can a secular court take into account religious sensibilities and incorporate those religious views into a civil order, enforceable by law, against people who don’t share those religious sensibilities? Nevada seems to have nodded in the direction of respect for religious considerations, but don’t watch its feint, watch what it does with the ball: it fashioned a test that sets religious considerations to one side. The religious father in this case, if he wants to win, has to start talking about reading, writing, and arithmetic, and quit talking about God, no matter how important his faith is to him or how central he believes it should be to his child’s upbringing.

    I’m ok with limiting secular courts to secular questions. The pernicious risks of state actors meddling in religious affairs, and making pronouncements and orders about peoples’ religious obligations, are too great. But there’s a hard cost to be paid when parents come to a civil court seeking redress of deeply personal disputes – the civil courts won’t rule on matters of faith. We should be forthright about that.

    1. Well, which religious views is the court supposed to take into account and put into its order? We could have a country where courts “break the tie”, or otherwise bias things, in favor of {{insert specific sect here}}, even while individuals are totally free to worship differently. But, since the Fourteenth Amendment applied the First against the states, that isn’t the country we have.

      I’m reminded of a previous Volokh post about some case where a child was raised in Religion X, the parents divorced, one of them converted to another faith, and she no longer wanted the child to go to a Religion X school. (I think it was Orthodox Judaism?) The court – correctly, IMO – broke the tie in favor of Religion X on the basis that’s what the child was used to. I think courts should look to standards like that, because they can’t and shouldn’t be favoring one religion above another or above secularism.

    2. “…can a secular court take into account religious sensibilities and incorporate those religious views into a civil order…”


      “Nevada seems to have nodded in the direction of respect for religious considerations…”

      That’s the opposite of the holding.

      “I’m ok with limiting secular courts to secular questions.”

      Are you sure? Because you seem to be saying the opposite.

  9. An excellent ruling, IMO. However, I note parenthetically, what are we coming to when we’re evaluating middle schools based on a “high college placement rate”?

    1. It speaks to the peer group of the students.

      The kid should be sent to the better school, end stop. If Mom doesn’t mutually agree to religious school, she doesn’t have to pay 1/2.

      If Dad isn’t willing to pay the full tuition of the private school, he can agree to the public school.

    2. Evan Thorn: Faith Lutheran, like many schools, includes both the junior high school grades and high school grades; my guess is that most students who start in junior high school go on to the high school, and that many parents (and kids) would prefer not having to change schools in the middle. Because of this, (1) a parent who wants to go to the high-college-placement-rate high school might reasonably want to start in the junior high school. And, more broadly, (2) a parent who wants a good junior high school might infer (though not with perfect accuracy) that, if the high school is well-run, the junior high school probably is, too.

      1. Ah, I missed the detail there was a high school attached too. That does make sense.

  10. Yet another reason why couples contemplating divorce, especially where differences of religion are involved, are better off working out some agreement pre-specifying how these matters will be handled, then leaving it for a judge to do it for them.

  11. I tend to agree the woman’s lawyer may have messed up here. Their agreement was subject to being interpreted in her favor. It at least arguably required “mutual” agreement to (any) private school. Since she wanted to send the child to public school, there was no mutual agreement to send the child to private school, so public school was called for by the agreement’s own terms. This line of reasoning would have given her a win on straightforward grounds without a need to raise dubious constitutional issues with expensive arguments, appeals, or reversals. This should have been her first and main line of argument.

    Since there was no mention of this line of argument, it appears her counsel didn’t raise it. This was dumb. Really, really dumb.

  12. This ruling seems to promote the prospect of more children attending schools that teach that evolution is a Satanic plot unleashed from the pits of hell, that our planet is a few thousand years old, that (certain) fairy tales are true, that silly dogma trumps history and science, and that women should be subservient to men.

    The current Republican-conservative electoral coalition applauds.

    1. Well, you’re free to found your own Religion of Exalted Reason School teaching the opposite, and this same ruling would “promote the prospect of more children attending” it by the exact same reasoning.

      1. Do you oppose teaching children that the moon is made of green cheese; that storks deliver babies; and that science is a fraud, or is it just tough luck for the eight-year-olds who get stuck in such classrooms?

        Thank you.

  13. I’m going to point out the obvious.

    The money spent on both sides litigating this to the state supreme court is money that goes to the attorneys, and not to the either spouse or the kids.

    I certainly hope it was worth it. Education is important, but it’s also important to try and reach some type of compromise with your ex so that you don’t have to litigate over middle schools. Because, well, this will likely not be the end of it.

    1. You should have that message printed on a t-shirt.

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