Opinion
NO. 02-6769
September 10, 2002
MEMORANDUM AND ORDER
At the close of a hearing on September 9, 2002, I entered an Order from the bench, dismissing this action without prejudice to further proceedings in the state courts. This Memorandum will set forth the reasons for that decision.
Plaintiff is a non-profit corporation which proposes to operate a cyber-school which, through the Internet, would provide education from kindergarten through grade 12. All courses would be taught by Christian teachers, from a Christian perspective, with pervasive religious emphasis.
Plaintiff brought this action to compel the defendants (the Pennsylvania Department of Education and various officials of that department) to grant plaintiff an exemption from licensing requirements and permit plaintiff to conduct its operations without let or hindrance from state regulators.
Plaintiff first contacted the defendants in April of this year, by which time plaintiff had allegedly hired a headmaster and assembled course materials, and was in the process of completing arranging for the services of some 20 proposed teachers. Allegedly, plaintiff had already enrolled more than 1,000 proposed students, and had announced to them that classes would begin on September 9, 2002.
The defendants sought further information about the proposed institution, and plaintiff provided copies of the plaintiff's charter and bylaws, plaintiff's religious orientation, and the background of the headmaster (a retired clergyman, the father of plaintiff's counsel)
On July 12, 2002, the defendants' "Division of NonPublic and Private School Services" wrote plaintiff, stating, inter alia, "The Department of Education is presently reviewing the documents that you submitted for the purpose of obtaining an exemption from licensure," and advising plaintiff that it would be unlawful for plaintiff to operate its school without a license, unless the exemption was granted.
On August 15, 2002, plaintiff filed its complaint in the present case, together with an application for a preliminary injunction. These documents were served upon the defendants on August 18, 2002. Although the time for response to those documents had not yet expired, in view of the proposed opening date of September 9th I scheduled a hearing on the preliminary injunction application for September 4, 2002.
At that hearing, it became apparent that neither side fully understood the position of the other side, as to such matters as (1) which of various statutory provisions was applicable to plaintiff's situation; (2) whether defendants' understanding of the regulations purportedly involved was consistent with the applicable statutory provisions; and (3) in particular, what the defendants would finally decide about plaintiff's situation. Accordingly, I continued the hearing until September 9, 2002, suggested that counsel should try to work things out in the interim, and directed the defendants to clarify their final decision by that date.
At the final hearing on September 9, 2002, the legal issues relevant to this Court's decision were somewhat clarified. Pennsylvania provides for the licensing of private schools, but further provides, 24 P.S. § 6705:
"Licensing shall not apply to . . . schools or classes owned or operated by or under the authority of bona fide religious institutions . . . but such schools may choose to apply for license and, upon approval and issuance thereof, shall be subject to the provisions of this act."See Christian School Association v. Department of Public Instruction, 93 Dauph. 324, 52 D. C. 2d 430, 1971 WL 14172 (Ct. Com. Pl. 1971)
Since plaintiff did submit an application of some kind to the defendants, it is quite understandable that the defendants would feel obliged to make a decision, and to investigate before doing so.
Pennsylvania law contains provisions applicable not only to private academic schools, but also to charter schools, correspondence schools, and cyber schools. Plaintiff does not seem to fit any of these latter definitions. It is a not a charter school, since it receives no public support and is not under the jurisdiction of any school district. Provisions respecting requirements for at-home education apply to individual students located within a school district; plaintiff's proposed students reside at scattered locations both within and without the Commonwealth of Pennsylvania. And plaintiff is not a correspondence school.
The Pennsylvania Legislature has recently enacted a statute governing "cyber charter schools," 24 P.S. § 1703-A (as amended, 2002). The statute defines "cyber charter school" to mean "An independent public charter school established and operated under a charter from the Department of Education and in which the school uses technology in order to provide a significant portion of its curriculum and to deliver a significant portion of instruction to its students through the Internet or other electronic means." Plaintiff has not applied for such a charter, and probably could not obtain one since it is not a public corporation.
The only basis for asserting federal jurisdiction over this case is plaintiff's claim that its First Amendment rights under the Free Exercise Clause are being violated, or threatened, by the defendants. But, while plaintiff has an absolute constitutional right to propagate its religious teachings the Commonwealth of Pennsylvania also has the right to determine what kinds and quantities of schooling suffice to constitute compliance with compulsory-education laws. Moreover, plaintiff does not have a constitutional right to avoid reasonable procedural requirements, or to seek judicial relief without first exhausting available administrative remedies.
By the conclusion of the September 9th hearing, it was entirely clear that the defendants are not violating plaintiff's constitutional rights, and do not threaten to do so. This case really involves issues of state law which should first be addressed by state tribunals; significantly, no state appellate court has yet addressed the issues which will determine plaintiff's right to operate its school. The state authorities clearly have the right to decide whether small children can receive all their schooling via the Internet.
It is appropriate, in my view, for this Court to abstain from entering the legal thicket presented by plaintiff's unique situation, until the issues involved have been properly presented to and resolved by the state administrative and, if necessary, judicial tribunals. In short, principles of abstention, exhaustion of administrative remedies, and prematurity compel the conclusion that this Court should stay its hand.
This action is therefore being dismissed, without prejudice to plaintiff's right to exhaust administrative remedies, including resort to state judicial tribunals if necessary, and to return to this Court if its federal rights are later violated. There is no reason to suppose that plaintiff's constitutional rights will not be fully protected in the state fora.
An Order follows.
ORDER
AND NOW, this 10th day of September, 2002, for the reasons set forth in the accompanying opinion, and in conformity with the oral ruling made from the bench at the conclusion of the September 9th hearing, IT IS ORDERED:
That this action is DISMISSED, without prejudice no plaintiff's right to exhaust its administrative remedies and to proceed in the state courts and, if necessary, to again seek relief in this Court after exhausting its remedies elsewhere.
The Clerk is directed to close the file.