The opinion of the court was delivered by: ARTHUR SCHWAB, District Judge
The Commonwealth of Pennsylvania's education system, enacted by
its General Assembly (as opposed to the Pennsylvania Department
of Education ("PDE") or local school boards or administrators),
permits parents and guardians to satisfy Pennsylvania's
compulsory education laws through "home education programs,"
subject to minimum days of attendance and hours of instruction in
certain specific courses (e.g., language, geography, literature,
history) and review by the respective school districts of logs
and educational materials compiled by the supervisors of the home
education programs for compliance with the required courses and
minimum days and hours of instruction, but not of educational
content, textbooks, curriculum or instructional materials.
Parents who home school their children based on their sincerely
held religious beliefs have sued their respective school
districts and superintendents in several state and federal courts
in the Commonwealth of Pennsylvania, seeking a declaratory
judgment and equitable relief from the enforcement of
Pennsylvania's Compulsory Attendance Law through truancy
prosecutions on the grounds that Pennsylvania's statute
permitting "home education programs" violates the Pennsylvania
Religious Freedom Protection Act, the Free Exercise,
Establishment and Free Speech Clauses of the First Amendment to
the Constitution of the United States, and several aspects of the
Due Process Clause of Fourteenth Amendment to the Constitution of
the United States, both on its face and as applied. Resolution of plaintiffs' pending motion for summary judgment
on "threshold issues" requires careful consideration and
balancing of often competing personal, societal and governmental
interests the rights of parents and guardians to direct the
education and upbringing of their children and the constitutional
and statutory obligation of the Commonwealth to provide for and
ensure the adequate education of its children citizens and
constitutional principles that are basic to our Nation's concept
of ordered liberty and democracy.
II. The Pennsylvania Constitutional and Statutory Framework
A. Education in American History in General, and in the
Commonwealth of Pennsylvania in Particular
An educated citizenry has been recognized as critical to the
success and well-being of the Nation and its people from the time
of its creation. Founding fathers, including George Washington,
John Adams, Thomas Jefferson and, in the Commonwealth of
Pennsylvania, William Penn, championed the view that the
government has an overarching responsibility to create and to
regulate a system of public education.
In his farewell address in 1796, America's first president,
George Washington, addressed the issue of public education
provided by the government. "Promote then, as an object of
primary importance, institutions for the general diffusion of
knowledge. . . . In proportion as the structure of a government
gives force to public opinion, it is essential that public
opinion should be enlightened."*fn1 John Adams agreed that
the government was obligated to educate its citizens. In 1780, Adams engrafted that principle into the Massachusetts'
Constitution, which stated: "[I]t shall be the duty of the
legislatures and magistrates, in all future periods of the
Commonwealth, to cherish the interests of . . . public school and
grammar schools in the towns."*fn2
And, serving in Virginia's state legislature, Thomas Jefferson
proposed legislation in the fall of 1778 to create a public
school system in Virginia. Jefferson titled this measure A Bill
for the More General Diffusion of Knowledge.*fn3 "For
Thomas Jefferson, public education was the key to preserving
republican government."*fn4 Jefferson believed every citizen
should have access to public education because the "most
effectual means of preventing [public corruption] would be, to
illuminate, as far as practicable, the minds of the people at
The Massachusetts Bay Colony was the first American colony to
pass a compulsory education law. In 1642, Massachusetts required
parents to see that their children received an education, and
five years later, the legislature passed a law which established
public schools in some towns, and provided for the appointment of
teachers and collection of taxes to pay for the education of
children.*fn6 Connecticut was the next colony to pass a
public school law in 1650, requiring all "masters of families" to
educate their children and servants.*fn7 2. Pennsylvania History
Before any of these notables had placed their imprimaturs on
public education as a foundation of good government and a robust
Nation, William Penn had advocated for a system of public schools
as did other prominent leaders of the
In 1681, Penn was granted the colony by
the King of England. He drafted a Frame of Government for the
new Commonwealth, which included a provision for public
education, stating: "Twelfth. That the Governors and Provincial
Council shall erect and order all Public Schools, and encourage
and reward authors of useful sciences and laudable inventions in
the said Province."*fn10
At Penn's urging, in 1682 the First General Assembly of
Pennsylvania created the "Great Law" which included a provision
for the creation of schools across Pennsylvania.*fn11
at the Second General Assembly in 1683, stronger public school
legislation was passed under Penn's leadership. In Chapter CXII,
this legislation stated:
And to the end that poor as well as rich man be
instructed in good and commendable learning, which is
to be preferred before wealth, Be it enacted, . . .
[t]hat all persons in this Province and Territories
thereof, having children, and all the guardians and
trustees of orphans, shall cause such to be
instructed in reading and writing . . ., and that
then they be taught some useful trade or skill, that
the poor may work to live, and the rich if they
become poor may not want: of which every County court
shall take care. And in case such parents, guardian,
or overseers shall be found deficient in this
respect, every such parent, guardian, or overseer
shall pay for ever such child, five pounds, except
there should appear an incapacity in body or
understanding to hinder it.*fn12
In 1776, the Commonwealth of Pennsylvania passed a provisional
state constitution which included the following provision for
public education: "A school or schools shall be established in
each county by the legislature for the convenient instruction of
youth, with such salaries to the masters paid by the public as
may enable them to instruct youth at low prices; and all useful
learning shall be duly encouraged and promoted in one or more
In one form or another, provisions for
public education were set forth in the various state
constitutions, culminating in the formulation contained in the
Pennsylvania Constitution of 1874, to wit: "The General Assembly
shall provide for the maintenance and support of a thorough and
efficient system of public schools, wherein all the children of this
Commonwealth above the age of six years shall be educated, and
shall appropriate at least one million dollars each year for that
purpose." Pa. Const. of 1874, Art. X, § 1. As amended in 1967,
this proviso now reads: "The General Assembly shall provide for
the maintenance and support of a thorough and efficient system of
public education to serve the needs of the Commonwealth." Pa.
Const., Art. III, § 14.
The Pennsylvania Constitution of 1790 was the basis for the
Free Public School Act of 1834 which is the underpinning for
today's system of schools in the Commonwealth. 22 Pa. Code, Chap.
4, Appx. C, Academic Standards for Civics and Government, XIV.
"In meeting its responsibility, the General Assembly has
established a comprehensive legislative scheme governing the
operation and administration of public education." Pennsylvania
Fed'n of Teachers v. Sch. Dist. of Phila., 506 Pa. 196,
484 A.2d 751, 753 (1984).
The structure of Pennsylvania's public school system was
summarized by the United States Court of Appeals for the Third
Circuit recently in Parents United For Better Schools, Inc. v.
Sch. Dist. of Philadelphia Bd. of Educ., 148 F.3d 260
, 262 n. 1
(3d Cir. 1998):
The organization of [Pennsylvania's] public school
system is controlled by the Public School Code of
1949 (School Code)[24 Pa. Stat. Ann. §§ 1-101
27-2702 (West 1992)]." Philadelphia Fed'n of
Teachers, Local No. 3 v. Board of Educ. of the Sch.
Dist. of Phila., 51 Pa.Cmwlth. 296, 414 A.2d 424,
426 (1980) (citation omitted). "School Districts act
as agencies of the state legislature in administering
the educational program within the district."
Chambersburg Area Sch. Dist. v. Pennsylvania Labor
Relations Bd., 60 Pa.Cmwlth. 29, 430 A.2d 740, 743
(1981) (citation omitted), appeal dismissed,
498 Pa. 366, 446 A.2d 603 (1982). See also Barth v.
School Dist. of Phila., 393 Pa. 557, 143 A.2d 909,
912 (1958) ("the School District of Philadelphia is
an agent or creature of the Legislature"); Kaufman
v. Central Susquehanna Intermediate Unit No. 16,
144 Pa.Cmwlth. 163, 601 A.2d 412, 414 (1991) ("The
legislature has established that each school district
and intermediate unit shall have, inter alia, a board of directors and
has set forth the powers and duties of each")
The following laws were enacted to implement Pennsylvania's
constitutional mandate to provide a thorough and efficient system
of public education to serve the needs of the citizens of the
Commonwealth. Pa. Const., Art. III, § 14.
B. Pennsylvania Compulsory Education Law and Four Legislative
The Commonwealth of Pennsylvania requires every child of
compulsory school age having legal residence in Pennsylvania "to
attend a day school in which the subjects and activities
prescribed by the standards of the State Board of Education are
taught in the English language." 24 Pa. Stat. Ann. § 13-1327(a).
Compulsory school age is defined by the Pennsylvania
Administrative Code as "the period of a child's life from the
time the child enters school as a beginner which may be no later
than at the age of eight (8) years, until the age of seventeen
(17) or graduation from a high school, whichever occurs first."
22 Pa. Code § 11.13 (2005).
The Pennsylvania legislature currently permits four alternative
categories or types of education that may satisfy the Compulsory
School Law: (1) public schools, with certain trade school
options, 24 Pa. Stat. Ann. § 13-1327(a); (2) non-public, licensed
private academic schools, 24 Pa. Stat. Ann. § 13-1327(a); (3)
schools operated by bona fide churches or other religious bodies,
24 Pa. Stat. Ann. § 13-1327(b); and (4) "home education
programs," 24 Pa. Stat. Ann. § 13-1327.1.
First, parents and guardians may fulfill the compulsory
attendance requirements by sending their children to public
schools. In lieu of such attendance, any child who is fifteen
years of age may enroll as a day student in a private trade school or
in a private business school licensed by the Pennsylvania
Department of Education provided he or she obtains the approval
of the district superintendent and Secretary of Education.
24 Pa. Stat. Ann. § 13-1327(a). Similarly, any child sixteen years of
age may enroll as a day student in a private trade school or in a
private business provided he or she obtains the approval of the
district superintendent. 24 Pa. Stat. Ann. § 13-1327(a). Thus,
even though a child may opt to attend a private trade or business
parent, guardian, or other person having control or
charge of any child or children of compulsory school
age is required to send such child or children to a
day school in which the subjects and activities
prescribed by the standards of the State Board of
Education are taught in the English language.
24 Pa. Stat. Ann. § 13-1327(a).
The second option enacted to ensure "appropriate education" of
the children of the Commonwealth is private schools. The
certificate of any principal or teacher of a private school, or
of any institution for the education of children, "in which the
subjects and activities prescribed" by the State Board of
Education are taught in the English language, must set forth that
the work of said school is in compliance with the provisions of
the Compulsory Attendance Law. 24 Pa. Stat. Ann. § 13-1327(a).
With respect to instruction in the English language, instruction
by a properly qualified private tutor shall be considered as
complying with the Compulsory Attendance Law.
24 Pa. Stat. Ann. § 13-1327(a). A properly qualified private tutor is defined as "any
person who is certified by the Commonwealth of Pennsylvania to
teach in the public schools of Pennsylvania."
24 Pa. Stat. Ann. § 13-1327(a). The third alternative permits education at parochial and other
religious affiliated schools run by bona fide churches and other
religious bodies. The principal of each such school must submit a
notarized affidavit to the Pennsylvania Department of Education,
stating that the mandated subject matter is offered in the
English language and that such school is otherwise in compliance
with the provisions of the Compulsory Attendance Law.
24 Pa. Stat. Ann. § 13-1327(b). Thus,
a school operated by a bona fide church or other
religion body and the parent, guardian or other
person having control or charge of any such child or
children of compulsory school age shall be deemed to
have meet the requirements of this section if that
school provides a minimum of one hundred eight (180)
days of instruction or nine hundred (900) hours of
instruction per year of instruction at the secondary
24 Pa. Stat. Ann. § 13-1327(b).
Furthermore, a school operated by a bona fide church or
religious body must provide instruction in the following subjects
at the elementary level:
English, to include spelling, reading, and writing;
arithmetic; science; geography; history of the
United States and Pennsylvania; civic; safety education,
including regular and continuous instruction in the
dangers and prevention of fires; health and
physiology; physical education; music; and
24 Pa. Stat. Ann. § 13-1327(b)(1).
And at the secondary level, such schools must provide
English, to include language, literature, speech and
composition; science, to include biology and
chemistry; geography; social studies, to include
civics, economics, world history, history of the
United States and Pennsylvania; a foreign language;
mathematics, to include general mathematics and
statistics, algebra and geometry; music; physical
education; health and physiology; and safety
education, including regular and continuous
instruction in the dangers and prevention of fires.
24 Pa. Stat. Ann. § 13-1327(b)(2).
Although the subject areas to be taught in schools operated by
a bona fide church or religious body are prescribed by statute,
it is "the policy of the Commonwealth to preserve the primary
right and the obligation of the parent or parents, or person or
persons in loco parentis to a child, to choose the education and
training for such child." 24 Pa. Stat. Ann. § 13-1327(b).
Accordingly, nothing contained in the Compulsory Attendance Law
"shall empower the Commonwealth, any of its officers, agencies or
subdivisions to approve the course content, faculty, staff or
disciplinary requirements of any religious school referred to in
this section without the consent of said school." Id.
C. Act 169 of 1988 Pennsylvania Home Schooling Act
The Pennsylvania legislature recognized and permitted the
fourth alternative in 1988 Pennsylvania's Home Schooling Act,
Act 169 of 1988, P.L. 1321, No. 169, December 1, 1988,
24 Pa. Stat. Ann. § 13-1327.1. Act 169 provides that instruction to
children of compulsory school age in a "home education program"
satisfies Compulsory Attendance Law.
24 Pa. Stat. Ann. § 13-1327.1(d). Act 169 requires the same number of days and hours
of instruction, and the same subject matters of instruction as
required by a school operated by a bona fide church or religious
body. 24 Pa. Stat. Ann. § 13-1327.1(c)(1)(2). To begin a home
education program, the parent or guardian of the child must file
a notarized affidavit prior to the commencement of the home
education program, and annually thereafter on August 1, with the
superintendent of the school district of residence.
24 Pa. Stat. Ann. § 13-1327.1(b)(1). This affidavit must set forth:
[T]he name of supervisor of the home education
program who shall be responsible for the provision of instruction; the name and age of
each child . . .; the address and telephone number of
the . . . site; that such subjects as required by law
are offered in the English language, including an
outline of proposed education objectives by subject
24 Pa. Stat. Ann. § 13-1327.1.
The outline of proposed education objectives cannot be utilized
by the district superintendent in determining whether the home
education program is in compliance.
24 Pa. Stat. Ann. § 13-1327.1(b)(1). However, the superintendent is charged with
ensuring that "appropriate education" is taking place;
"appropriate education" is "a program consisting of instruction
in the required subjects for the time required in this act and in
which the student demonstrates sustained progress in the overall
program." 24 Pa. Stat. Ann. § 13-1327.1(a).
In order to ensure that "appropriate education" is occurring,
the supervisor of the home education program must submit to the
district superintendent a portfolio of records and materials, as
(1) A portfolio of records and materials. The
portfolio shall consist of a log, made
contemporaneously with the instruction, which
designates by title the reading materials used,
samples of any writings, worksheets, workbooks or
creative materials used or developed by the student
and in grades three, five and eight results of
nationally normed standardized achievement tests in
reading/language arts and mathematics or the results
of Statewide tests administered in these grade
levels. The department shall establish a list . . .
of nationally normed standardized tests from which
the supervisor . . . shall select . . . if the
supervisor does not choose the Statewide tests. At
the discretion of the supervisor, the portfolio may
include the results of nationally normed standardized
achievement tests for other subject areas or grade
levels. The supervisor shall ensure that the
nationally normed standardized tests or the Statewide
tests shall not be administered by the child's parent
* * *
(2) An annual written evaluation of the student's
educational progress as determined by a licensed
clinical or school psychologist or a teacher
certified by the Commonwealth or by a [qualified]
nonpublic school teacher or administrator. . . . The evaluation shall also be based on an interview of the
child and a review of the portfolio required in
clause (1) and shall certify whether or not an
appropriate education is occurring. At the request of
the supervisor, persons with other qualifications may
conduct the evaluation with the prior consent of the
district of residence superintendent. In no event
shall the evaluator be the supervisor or their
24 Pa. Stat. Ann. § 13-1327.1(e)(1)(2).
If at any time during the school year, the district
superintendent has a reasonable belief that appropriate education
may not be occurring in a home education program, the
superintendent may require documentation pertaining to the
portfolio of records and materials to be submitted.
24 Pa. Stat. Ann. § 13-1327.1(h). After reviewing the submitted documentation,
if the district superintendent believes that appropriate
education is not taking place, either during or at the conclusion
of the school year, he or she shall notify the supervisor of the
home education program by certified mail, stating such belief and
specifying the aspects of the documentation deemed inadequate.
24 Pa. Stat. Ann. § 13-1327.1(i). The supervisor of the home
education program shall then have twenty (20) days to submit
additional documentation demonstrating that appropriate education
is occurring. 24 Pa. Stat. Ann. § 13-1327.1(j). If this
additional documentation is not forwarded to the district
superintendent, the home education program will be declared out
of compliance, and as a consequence, the child must be "enrolled
in the public school district of residence or a nonpublic school
or a licensed private academic school," and the supervisor or
spouse of the supervisor shall not be eligible to supervise a
home education program for that child for twelve months.
24 Pa. Stat. Ann. § 13-1327.1(j).
If additional documentation is submitted and the district
superintendent still determines that appropriate home education
is not occurring, he must notify the supervisor of the home
education program and the board of school directors must then
provide for a "proper hearing by a duly qualified and impartial hearing examiner within thirty
days." 24 Pa. Stat. Ann. § 13-1327.1(k). The hearing examiner
"shall not be an officer, employee or agent of the PDE or of the
school district or intermediate unit of residence of the child in
the home education program." 24 Pa. Stat. Ann. § 13-1327.1(a). If
the hearing examiner "finds that the documentation does not
indicate that appropriate education is taking place in the home
education program, the home education program for the child shall
be out of compliance with the requirements of this section and
section 1327, and the student shall be promptly enrolled in the
public school district of residence or a nonpublic school or a
licensed private academic school."
24 Pa. Stat. Ann. § 13-1327.1(k). Either the supervisor of the program or the
superintendent for the school district may appeal the decision of
the hearing examiner to the Secretary of Education (the executive
branch) or to the Commonwealth Court of Pennsylvania (the
judicial branch). Id.
D. Pennsylvania Administrative Code and Protections of
The Pennsylvania Department of Education, headed by the
Secretary of Education, is charged by the General Assembly with
developing rules and regulations to carry out its legislative
enactments as set forth in the Pennsylvania School Code. Act of
July 23, 1969, P.L. 181, § 1, 71 Pa. Stat. Ann. §§ 1037, 1038;
Act of June 16, 1994, P.L. 319, No. 49, § 9,
64 Pa. Stat. Ann. § 468. The Administrative Code provides the following regulations
that are pertinent to compulsory education and home education
The PDE explains that public education "prepares students for
adult life by attending to their intellectual and developmental
needs and challenging them to achieve at their highest level
possible. In conjunction with families and other community
institutions, public education prepares students to become
self-directed, life-long learners and responsible, involved citizens." 22 Pa. Code § 4.11(b). Thus, public education is
intended to provide opportunities for students to:
(1) Acquire knowledge and skills. (2) Develop
integrity. (3) Process information. (4) Think
critically. (5) Work independently. (6) Collaborate
with others. [and] (7) Adapt to change.
22 Pa. Code § 4.11(c).
Academic standards "describe the knowledge and skills which
students will be expected to demonstrate before graduating from a
public school," and are set forth in section 4.12,
22 Pa. Code § 4.12, while "assessment in public education" is designed to
determine student attainment of state and local academic
standards. 22 Pa. Code § 4.11(d-e). To that end, public schools
"provide instruction throughout the curriculum so that students
may develop knowledge and skills in the following areas: (1)
Reading, writing, speaking and listening; (2) Mathematics; (3)
Science and technology; (4) Environment and ecology; (5) Social
studies (civics and government, geography, economics and
history); (6) Arts and humanities; (7) Career education and work;
(8) Health, safety and physical education; (9) Family and
consumer science; and (10) World languages.
22 Pa. Code § 4.11(g)(1-10). Notably, religious instruction and training is
omitted from the statutory and administrative objectives and
The Code also defines "Planned instruction" as consisting of
"at least the following elements: (1) Objectives of a planned
course, instructional unit or interdisciplinary studies to be
achieved by all students; (2) Content, including materials and
activities, and estimated instructional time to be devoted to
achieving the academic standards. Courses, instructional units or
interdisciplinary studies of varying lengths of time may be
taught; (3) The relationship between the objectives of a planned
course, instructional unit or interdisciplinary studies and academic standards specified under § 4.12 and to those determined
in the school district's (including charter schools) or AVTS's
strategic plan under § 4.13; and (4) Procedures for measurement
of the objectives of a planned course, instructional unit or
interdisciplinary studies." 22 Pa. Code § 4.11(h).
"Students of compulsory school age participating in a home
education program are subject to sections 1327(d) and 1327.1 of
the Public School Code of 1949 [24 Pa. Stat. Ann. §§ 13-1327(d)
and 1327.1]." The Code provides that school district approval is
not required to commence home education programs.
22 Pa. Code § 11.31(a). For purposes of the Pennsylvania State Higher Education
Grant Program, "an approved secondary school shall also include
any home education program that is accredited by any home
schooling accreditation agency approved by the Department of
Education. If the home education program lacks the requisite
accreditation, certification by the appropriate local school
official attesting that the home education program is in
compliance with Section 1327.1 of the Public School Code of 1949
[24 Pa. Stat. Ann. § 13-1327.1] shall be submitted to the Agency
by the appropriate local school official."
22 Pa. Code § 121.21(c).
The Pennsylvania Administrative Code mandates that school
districts adopt policies that preserve certain religious rights
for parents and guardians of children of compulsory school age.
First, children shall be "excused from specific instruction which
conflicts with the religious beliefs of their parents upon
receipt of a written request to the school district." 22 Pa.
Code. § 4.4(d)(3). Second, if "upon inspection of State
assessments parents or guardians find the assessments in conflict
with their religious belief and wish their student be excused
from the assessment, the right of the parents or guardians will
not be denied upon written request to the applicable school district superintendent."
22 Pa. Code § 4.4(d)(4).
The PDE also maintains a website
[http://www.pde.state.pa.us/home_education] devoted to home
education, which contains the text of Act 169, a list of
frequently asked questions about home schooling and compliance
with Act 169, sample forms and affidavits, acceptable tests,
academic standards, and links to various resources available to
assist home schooling parents, guardians and supervisors.
E. Pennsylvania Religious Freedom Protection Act
In 2002, the Pennsylvania General Assembly enacted the
Religious Freedom Protection Act ("RFPA"), P.L. 1701, No. 214,
Dec. 9, 2002, 71 Pa. Stat. Ann. §§ 2401-2407, described as "An
Act protecting the free exercise of religion; and prescribing the
conditions under which government may substantially burden a
person's free exercise of religion." 71 Pa. Stat. Ann. § 2401.
The RFPA was predicated on the following legislative findings:
(1) Laws and governmental actions which are facially
neutral toward religion, as well as laws and
governmental actions intended to interfere with
religious exercise, may have the effect of
substantially burdening the free exercise of
religion. However, neither State nor local government
should substantially burden the free exercise of
religion without compelling justification.
(2) The General Assembly intends that all laws which
it has heretofore enacted or will hereafter enact and
all ordinances and regulations which have been or
will be adopted by political subdivisions or
executive agencies shall be construed so as to avoid
the imposition of substantial burdens upon the free
exercise of religion without compelling
71 Pa. Stat. Ann. § 2402.
The RFPA provides that an "agency shall not substantially
burden a person's free exercise of religion, including any burden
which results from a rule of general applicability," unless the "agency proves, by a preponderance of the evidence, that the
burden is (1) In furtherance of a compelling interest of the
agency, and is (2) The least restrictive means of furthering the
compelling interest." 71 Pa. Stat. Ann. § 2404.
The RFPA permits a person whose free exercise of religion has
been burdened to assert the violation against the agency as a
claim or defense in any judicial proceeding.
71 Pa. Stat. Ann. § 2405(a). Barring certain exigent circumstances not asserted
herein, 71 Pa. Stat. Ann. § 2405(c), prior to raising such a
claim or defense, the person must provide written notification,
by certified mail, return receipt requested, informing the agency
(1) The person's free exercise of religion has been
or is about to be substantially burdened by an
exercise of the agency's governmental authority.
(2) A description of the act or refusal to act which
has burdened or will burden the person's free