Church Day Care Wins Exemption From State's Law
Acting in a case that could affect the national debate on day-care regulation, a federal appeals court has upheld a Virginia law that exempts religiously affiliated child-care centers from state licensing requirements.
In reaching its decision, the U.S. Court of Appeals for the Fourth Circuit reversed its own finding in the case four years ago that the exemption violated the First Amendment's ban on state establishment of religion.
The three-judge panel based its May 6 opinion largely on a U.S. Supreme Court ruling last year that upheld a provision in a federal job-bias law that permits churches to discriminate in employment policies on the basis of religion.
"If an exemption is permissible in the context of employment practices,'' Judges Donald S. Russell, Kenneth K. Hall, and John D. Butzner Jr. wrote, a court "can only be more solidly justified when it acts to prevent state interference with church programs that provide education and care for children.''
Experts say the case, Forest Hills Early Learning Center v. Jackson, is the first of its kind to be decided by a federal appellate court. They note that the ruling could influence the outcome of suits across the nation involving state regulation of church-affiliated day-care centers and schools.
The decision is also likely to add fuel to the debate over licensing provisions in a major child-care bill being considered by the Congress.
According to a 1982 study by the National Council of Churches, churches and synagogues are the largest providers of child care in the United States. The study, which the group said covered only a fraction of the nation's religious institutions, identified 15,000 church-housed centers serving about 1 million children a day.
'Teach Thy Children'
Virginia is one of 12 states that exempt church-sponsored centers from licensing requirements.
Although the state has required day-care operators to obtain licenses since 1948, its welfare department broadened the requirements in 1976 to include standards governing building space, equipment, programs, health, nutrition, disciplinary practices, and parental participation.
The Virginia legislature passed the religious exemption to most such regulations in 1979, following complaints from fundamentalist Christian churches, which claimed they could not apply for or accept licenses to perform a task they considered part of their religious mission.
"The concept of first going to the state to carry out what they see as a biblical command to 'go forward and teach thy children' was at the very crux of the issue,'' said Anthony F. Troy, a lawyer who represented four fundamentalist churches that intervened in the case.
The 1979 law gives religious institutions the option of applying for licensing exemptions. Exempt centers are still required to meet building and fire codes and specified child-staff ratios, but the state does not conduct routine monitoring to assure compliance.
Supreme Court Ruling Cited
Three day-care centers that are not affiliated with churches filed suit against the state in 1980, claiming that the exemption gave sectarian centers a competitive advantage. They alleged that the law violated both their 14th Amendment right to equal protection of the laws and the First Amendment's establishment clause.
U.S. District Judge Richard L. Williams initially held that the exemption was warranted to avoid infringing upon the churches' religious freedom. But the Fourth Circuit Court overturned his decision in 1984, concluding that the exemption was unconstitutionally broad.
The appellate court, however, sent the case back to Judge Williams to consider the arguments of the four sectarian centers that sought permission to intervene in the case. On remand, the district judge agreed with the Fourth Circuit panel that the exemption was unconstitutional.
In overturning that decision this month, the federal appellate panel cited the U.S. Supreme Court's ruling last summer in Church of Jesus Christ of Latter Day Saints v. Amos, in which it upheld an amendment to Title VII of the Civil Rights Act of 1964 that exempts religious organizations from a ban on religious discrimination.
The case involved a building engineer who was fired from his job in a gymnasium operated by the Mormon church because he failed to qualify as church member.
The High Court deemed the exemption an acceptable accommodation of religion and not a violation of the establishment clause. The law was justified, Associate Justice Byron White wrote, "to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious mission.''
John E. Heintz, a lawyer who represented the three Virginia day-care-center operators who filed the suit, maintained that the Fourth Circuit Court erred in applying the rationale of the Amos ruling in the Forest Hills case.
While the former case legitimately addressed the right of religious organizations to choose their associates, he said, child-care safety standards "cannot possibly implicate religious choice or the ability of the church to define its mission.''
Mr. Heintz said his clients may appeal the decision to the Supreme Court.
Lawyers who have represented fundamentalist Christians in First Amendment cases say the ruling in the Forest Hills case represents an important victory for church groups seeking an end to government regulation.
The decision bolsters the argument "that there are government activities that affect religious institutions which are neither required by the free-exercise clause nor prohibited by the establishment clause,'' said Bradley P. Jacob, a lawyer with the Christian Legal Society.
"I think it will be another bullet in the arsenal of those of us who believe that church ministries, including their educational ministries, ought not to be regulated and approved by the government,'' said Michael P. Farris, a lawyer who has been involved in a number of church-state cases.
Mr. Farris added that existing laws against child abuse, rather than state licensing of day-care centers, constitute "the best system to preserve the safety of children and the freedom of our country.''
Day-care centers, he said, "can be regulated to death and still abuse children.''
Most Support Licensing
Opponents of the decision note, however, that most religious groups support and abide by licensing requirements, even in the 12 states that grant exemptions.
In a 1984 paper on child care, the National Council of Churches endorsed licensing, calling it "an official acknowledgment of public reponsibility to maintain healthy, safe, and developmentally appropriate conditions for children'' and "consumer protection'' for parents.
The Virginia Council of Churches also supports licensing and filed a friend-of-the-court brief on behalf of the plaintiffs in Forest Hills, said James F. MacDonald, the group's general minister.
Deann Lineberry, assistant communications director for the Virginia Department of Social Services, said that about 75 percent of the state's church-affiliated child-care centers continued to seek licenses for several years after the exemption was enacted. But she noted that the proportion had slipped to just over 50 percent in recent years.
Proponents of licensing fear that in the increasingly competitive day-care market, the Forest Hills decision and others like it could prompt church groups to press for exemptions similar to Virginia's and for a general relaxation of standards.
"The perception that we need more child care ... gets people's guards down about the notion of quality child care,'' said Carol Sanger, a law professor at Santa Clara University who specializes in child-care licensing issues. "When you begin to grant exemptions, it signals to the entire day-care industry that less is enough.''
Ms. Sanger noted, however, that the ruling does not require states to grant exemptions to church centers and that state courts have ruled against churches in several cases in which they attempted to demonstrate a right to exemptions.
Other observers have noted thatthe Fourth Circuit Court's ruling could extend beyond the realm of child care.
Implications for Schools
In cases involving state regulation of religious schools, "we've had the old Fourth Circuit ruling [in the Forest Hills case] thrown up in our faces from time to time,'' Mr. Farris said. "I see no reason now not to turn the tables.''
Lee Boothby, general counsel for Americans United for the Separation of Church and State, agreed that the ruling is likely to encourage conservative church groups to challenge state rules affecting their schools. "They're the same people and they see the issue the same way,'' he said.
Although there are several cases challenging or seeking to uphold various forms of religious-school regulation, only one state--North Dakota--currently requires church-affiliated schools to employ only certified teachers, according to Mr. Farris. A state-court decision upholding that requirement is pending before the U.S. Court of Appeals for the Eighth Circuit.
The Forest Hills ruling also could have some bearing on the debate in the Congress over the extent to which the federal government should support and regulate church-sponsored centers.
The "act for better child-care services,'' a measure introduced in the Congress last year, would disallow the use of federal funds to support sectarian activities, and would require centers that receive funds to meet certain federal standards.
The bill's supporters maintain that it would not interfere with existing state exemptions from licensing.
Since exempt centers would not be eligible for funds, however, the measure would force church institutions to accept the funds or "compromise their principles,'' Mr. Boothby noted.
"This ruling will indicate to regulators and the Congress that exceptions have to be made for religious organizations,'' said William Bentley Ball, a lawyer who has been involved in many church-state cases.
Gwen Morgan, a lecturer at Wheelock College who conducted a 1986 study on day-care licensing, said the church-state debate is likely to widen the rift between day-care operators and public policymakers with differing views on who should provide child care and how it should be regulated.
"This kind of issue drives a wedge into any possible consensus, and
that's too bad,'' she said.