The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.)