OFFICIAL OPINION No. 3

OFFICIAL OPINION No. 3 School di str icts-Com pu lsory school attenclancc-First Amendments r i ghts--- Freedoin of R eli gion-Amish chi ldr en . 1. Tlle Department of Education must consider it constitutional to compel Amish children who have completed the eighth grade, to fulfill the statu- tory requirement of compulsory school attendance since Pennsylvania pro- vides an alternative to formal public and private schools in the form of the Amish Operated School, which does not appear to impinge on the r ight of Amish children to freely exercise their religion. Honorable John C. Pittenger Secretary Department of Education Harrisburg, Pennsylvania Dear Secretary Pittenger: Harrisburg, Pa. January 15, 1973 You have inquired as to whether you must consider it uncon- stitutional, under the standards set forth in Wisconsin v. Yoder, 92 S. Ct. 1526 ( 1972), for the Pennsylvania Department of Ed- ucation to compel Amish childern who have completed the eighth grade, to satisfy the statutory requirement of compulsory school attendance (24 P.S. §1327) by attending either: 1) a public school or 2) a private school or 3) an Amish Operated School as provided for in the "Policy for Operation of Home and Farm Pro- jects in Church Organized Day Schools,'' Commonwealth of Pennsylvania, Department of Public Instruction, January 15, 1956, Harrisburg, P ennsylvania. I point out preliminarily that the final arbiter as to uncon- stitutionality of a statute is the judiciary. As Attorney General it is my duty to advise administrative and executive offices whether in the preformance of their duties they should treat a statute as unconstitutional. If a governing decision or the nature of the statute makes it manifest that the statute is unconstitu- tional, it is my duty to indicate that the statute is to be disre- garded. Absent clear unconstitutionality, it is your duty and my duty to give effect to a statute. Particularly appropriate to your present inquiry is the point that this office, unlike a court nor- mally cannot go into specific instances which, because of special OPINIONS OF THE ATTORNEY GENERAL 9 circumstances, might make the application of a statute in that case unconstitutional. On the basis of Wisconsin v. Yoder, Pennsylvania can compel Amish childern to satisfy the statutory requirement of compul- sory school attendance since Pennsylvania provides an alter- native to formal public and private schools in the form of the Amish Operated School, which, unlike formal private and public schools, does not impinge on the right of the Amish children to freely exercise their religion. The Court in Wisconsin v. Yoder, decided that a state cannot compel an Amish child to attend a formal public or private school after the child has completed the eighth grade, since to compel an Amish child to do so would gravely endanger the free exercise of his religious beliefs. How- ever, the Court went on to say that a state can "promulgate reasonable standards that, while not impairing the free exercise of religion, provide for continuing agricultural vocational edu- cation under parental and church guidance by the old order Amish or others similarily situated." 92 S. Ct. 1526, 1543 ( 1972). Furthermore, in footnotes 3 and 23 of the decision ( 92 S. Ct. 1526, 1530, 1543, (1972)), the Court commented favorably on the Pennsylvania Amish Operated School program which sug- gests that this plan is constitutional and is to be recommended. Under the Amish Operated School Program, pupils who have completed the eighth grade are enrolled in an Amish Operated School where they satisfy the requirement of compulsory school attendance by taking instruction in English, mathematics, health, and social studies and by doing directed projects in agricultural and homemaking on the farm or in the farm home. I reiterate the point made earlier. It may well be that there are certain other circumstances where it might be contended that the application of the statute is unconstitutional. Since these circumstances are not presented for review in this opinion we must withold comment on any action the Department of Ed- ucation may take in compelling children of persons with certain closely held religious beliefs to attend sectarian private schools in which the instruction would offend such religious beliefs. In light of the decision in Wisconsin v . Yoder, it is constitu- tional for Pennsylvania to compel Amish children, who have completed the eighth grade, to fulfill the statutory requirement of compulsory school attendance since Pennsylvania provides an alternative to formal public and private schools in the form of the Amish Operated School. a school which does not impinge on the right of the Amish children to freely exercise their religion. Sincerely yours, LILLIAN B. GASKIN Deputy Attorney General ISRAEL P ACKEL Attorney General 10 OPINIONS OF THE ATTORNEY GENERAL