Full opinion text
MEMORANDUM AND ORDER WOLF, District Judge. I. INTRODUCTION This case involves a conflict between members of a small church and school officials of a small town. Yet it raises issues concerning the separation of church and state which are as old and enduring as our nation itself. The case also presents important questions concerning the relative rights and roles of parents and the state with regard to educating children. Massachusetts law requires that until age sixteen every child attend a public school or a private school approved by a local school committee. Massachusetts General Laws c. 76, § 1 ("M.G.L. c. 76, § 1”). A school committee must approve a private school when satisfied that the instruction in certain subjects equals in thoroughness, efficiency, and progress that in the public schools in the same town. Id. Plaintiffs are the New Life Baptist Church (“New Life”), its minister, and some of its members. They are bom again Christians whose religion obligates them to provide a school as a ministry of their church. Thus, they have established the New Life Academy in East Longmeadow, Massachusetts. It is plaintiffs’ sincere religious belief that God is the ultimate sovereign of their church and to submit its educational ministry for approval by the state would be a sin. Defendants are the entities and officials of the Town of East Longmeadow responsible for approving private schools pursuant to M.G.L. c. 76, § 1. Defendants informed New Life that it would have to submit its Academy for approval by the East Longmeadow School Committee; advised New Life of certain essential standards and procedures it would employ in deciding whether to approve the Academy; and warned plaintiffs that parents would be subject to possible prosecution if the New Life Academy was not approved and they continued to send their children to school there. Initially New Life provided information to the East Longmeadow School Committee with a view to persuading the School Committee that approval of its Academy was unnecessary and inappropriate. It ultimately became evident, however, that the School Committee would continue to maintain that New Life would have to participate in the approval process, that the approval process would involve considerable surveillance of the school, and that approval was unlikely to be granted unless, at a minimum, the Academy employed more highly educated teachers. Believing that to seek approval would be a sin, and fearing that participating in the approval process would result in government control of New Life’s educational ministry, plaintiffs initiated this action seeking to enjoin the defendants’ effort to apply the approval requirements of M.G.L. c. 76, § 1 to New Life and requesting money damages. When, as here, there is a conflict between individuals’ constitutional rights to the free exercise of their religious beliefs and the state’s compelling interest in assuring that children are adequately educated, the government must show that it is using the least restrictive means possible to satisfy its interest. Defendants have failed to demonstrate that the requirements they have sought to impose on plaintiffs are essential to assuring that the children involved in this case will be adequately educated. Rather, the evidence demonstrates that relying upon either standardized testing and appropriate individual follow-up, or such testing, follow-up and a requirement that each teacher have appropriate academic credentials, is a less burdensome means of satisfying the state’s interest. Thus, the defendants’ conduct in this case violates plaintiffs’ rights under the Free Exercise Clause of the First Amendment of the United States Constitution. More specifically, with regard to the Free Exercise Clause issue, plaintiffs’ primary contention at trial was that reliance on the results of standardized tests and individual follow-up in appropriate cases is a less restrictive, effective means of assuring that New Life students are adequately educated. Defendants disputed the claim, primarily asserting that every element of East Longmeadow’s approval process is essential to serving the state’s compelling interest in the education of New Life students. However, East Longmeadow’s final expert witness, Dr. Kevin Ryan, testified that the East Longmeadow approval process was not the only acceptable means of satisfying the government’s interest in the education of New Life students. Rather, he said, reliance on standardized test results and individual follow-up, coupled with a requirement that teachers have college degrees, would suffice. Although some witnesses who preceded Dr. Ryan testified briefly on the importance of teachers having college degrees or other academic credentials indicating preparation to teach, the record was not fully developed on this issue. Since the trial of this case, the Massachusetts Supreme Judicial Court has indicated that approval of home education should be subject to the same standards as private school approval and has decided that with regard to approving home education the state may inquire into academic credentials, but not require that parents who teach have college degrees. Care and Protection of Charles & Others, 399 Mass. 324, 331, 339, 504 N.E.2d 592 (1987). It is not, however, necessary or appropriate for this court to decide now whether an academic credential requirement is a component of the least restrictive means of assuring that New Life students are adequately educated. The ultimate relevant Free Exercise Clause question is whether defendants have proved that the East Longmeadow approval process is the least restrictive means of satisfying the state’s interest in the education of New Life students. For the reasons described in this opinion, East Longmeadow has failed to make this showing. Rather, the evidence demonstrates that either standardized testing and individual follow-up or such testing, follow-up and a requirement that each teacher have appropriate academic credentials is a less burdensome means of satisfying the state’s interest than the East Longmeadow approval process. Thus, the court finds that defendants’ conduct violates the Free Exercise Clause. Similarly, government action relating to religion must not foster an excessive entanglement with religion. The means by which the defendants have sought to apply the relevant statute to New Life in this case would create an excessive entanglement with religion. Thus, defendants’ conduct also violates the Establishment Clause of the First Amendment of the United States Constitution. In contrast, the less restrictive alternative means which the state could employ to assure that New Life students are adequately educated would not violate the Establishment Clause. In view of the foregoing, the defendants are permanently enjoined from applying to New Life the approval process at issue in this case. They are also enjoined from prosecuting the plaintiff parent for failing to send his child to an approved school. The question of a possible award of money damages remains to be decided. The findings of fact and legal analysis on which these conclusions are based are described in detail in this opinion. It is important to recognize, however, that although this opinion decides, subject to possible judicial review, the legality of specific conduct, it does not eliminate the competing, compelling concerns of each of the parties or decide the precise parameters of a constitutionally permissible reconciliation of those interests. Thus, continued interaction between the parties is required. It remains necessary for defendants to determine in light of this decision how they will attempt to satisfy in a constitutionally acceptable manner the state’s important interest in assuring that the children who attend New Life Academy are adequately educated. The plaintiffs will have to respond to defendants’ renewed efforts to discharge their responsibilities. If the parties proceed in the spirit of tolerance and respect for the integrity of each others’ views which inspired the First Amendment, a mutually acceptable accommodation should be attainable. In the absence of such an effort, further litigation may be inevitable. II. FINDINGS OF FACT 1. The Statutory Context of the Case This case is generated, in part, by the existence of certain laws of the Commonwealth of Massachusetts. Massachusetts law requires that each child attend school until age sixteen. M.G.L. c. 76, § 1 . To satisfy this requirement a child must attend a public school or a private school approved by a local school committee. Id. A school committee must approve a private school when satisfied that “the instruction in all the studies required by law equals in thoroughness and efficiency, and the progress made therein, that in the public schools of the same town.” Id. The studies required by law are: orthography, reading, writing, the English language and grammar, geography, arithmetic, drawing, music, the history and Constitution of the United States, the duties of citizenship, health education, and good behavior. M.G.L. c. 71, § 1. Parents who fail to send their children to a public school or an approved private school for the one hundred and eighty days required by the state’s board of education are subject to possible criminal penalties. M.G.L. c. 76, § 2. The parties have stipulated that this truancy statute has been enforced against fundamentalist Christian parents who have failed to comply with the compulsory education requirements of M.G.L. c. 76, § 1. In addition, any person, including a school committee, alleging that a child under age sixteen is not receiving proper educational care may initiate a civil proceeding which could result in an order removing a child from his parents or directing a specific form of education for the child. M.G.L. c. 119, § 24. This statute too has been enforced against fundamentalist Christian parents who failed to comply with M.G.L. c. 76, § 1. See Care and Protection of Charles & Others, 339 Mass. at 324, 504 N.E.2d 592. 2. The Parties Plaintiff New Life Baptist Church is a fundamentalist Baptist church which opened in East Longmeadow, Massachusetts in 1977. Plaintiff David C. Chase is the pastor of New Life Church and the principal of New Life Academy. He has no formal training in the education of children, but was an electronics instructor in the United States Navy for many years. Although he graduated from high school, he is not a college graduate. He is now working toward a Bachelor of Arts degree in Biblical Studies. Plaintiff Richard Romero is the step-father of plaintiff Johna Opsitnik, a former New Life student, and of her sister, a present New Life student. He enrolled Johna in New Life because he was disappointed with her progress in the Chico-pee, Massachusetts public schools; he was not then a born again Christian. Mr. Romero has sued individually, as a member of New Life, and as a parent of New Life students. Johna Opsitnik was a student at New Life until 1986. Following her graduation she briefly attended a Christian college, which she left to marry another New Life graduate then serving in the United States Air Force. The parties have stipulated that Ms. Opsitnik’s claims have not been mooted by her graduation. The defendants are the Town of East Longmeadow, the East Longmeadow School Committee, the members of the East Longmeadow School Committee, Dr. Wayne S. Porter, who was superintendent of the East Longmeadow Public Schools until his retirement in 1984, and Dr. John S. Drinkwater, Dr. Porter’s successor. The parties stipulated to certain facts relating to plaintiffs. Plaintiffs are born again Christians who share certain fundamental religious beliefs, including the following. Plaintiffs believe that the Holy Scripture is the infallible word of God. In observance of the commandments of the Bible, the New Life Baptist Church operates ministries to spread the gospel message of the salvation of man through Jesus Christ. Plaintiffs believe that parents are required by their religion to educate their children to share their faith. They also believe that they are obligated by God to provide as an indispensable ministry of their church a school which teaches their religious beliefs. For plaintiffs, the secular and religious aspects of education are inseparable. Thus, in its educational ministry, New Life teaches all subjects from a biblical and Christian view of the world. Plaintiffs believe they are forbidden to send their children to schools, such as public schools, which they believe teach doctrines contrary to the Holy Scriptures. Plaintiffs also believe that God is the sovereign and the final authority in all human conduct. It is plaintiffs’ sincerely held religious belief that to submit their educational ministry for the prior or continued approval of secular authorities would violate the sovereignty of Christ over his church and would, therefore, be a sin. 3. The Background of The Case In August, 1981, The New Life Baptist Church established the New Life Academy to perform its educational ministry. Dr. Porter, the superintendent of the East Longmeadow public schools, later learned of the existence of the Academy. On September 9, 1982, Dr. Porter wrote Pastor Chase a letter stating that: The East Longmeadow School Committee is required by law, M.G.L. c. 76, § 1 to approve private schools.... Until the school is approved by the school committee children attending are violating the compulsory attendance law so it is urgent that your school be sanctioned soon by the East Longmeadow School Committee. He enclosed a “checklist for approval” that inquired about the school’s philosophy and objectives, physical plant, safety, curriculum, educational materials, staff, administration, record keeping, student services, and financial support for the educational program. Later that month, Pastor Chase met with Dr. Porter to discuss Dr. Porter’s letter. Pastor Chase said that he did not wish to seek approval, but did want to cooperate. Pastor Chase’s goal was to provide information sufficient to persuade East Long-meadow that the application of its approval process to New Life was unnecessary and inappropriate. Pastor Chase explained that he found some aspects of Dr. Porter’s request to be confusing. Dr. Porter agreed and undertook to consult with state education authorities with a view to refining the request to New Life. On October 19, 1982, Dr. Porter wrote again to Pastor Chase, asking him to respond to twelve questions. These included requests for information regarding subjects offered by grade level; school hours and the number of days school was held; the school’s qualification standards for teachers and staff and whether the teachers and staff met those standards; whether the school taught all legally required subjects; whether the school conformed to all health and safety standards; and whether the school was open to students of all races and religions. On November 24, 1982, Pastor Chase responded to Dr. Porter’s October 19, 1982 letter. After stating that, “[w]e have never sought the approval of any of our church ministries by non-religious organizations ...,” Pastor Chase proceeded to furnish all of the information requested by Dr. Porter. This response was part of a continuing effort by Pastor Chase to accommodate the School Committee’s concern without compromising his religious convictions. Among other things, Pastor Chase informed Dr. Porter that New Life Academy was open one hundred and seventy-five days each year. He also furnished the requested identification of the students attending New Life and indicated that the school building complied with all health and safety standards. With regard to teachers, Pastor Chase wrote to Dr. Porter that they were required to be born again; to be a member in good standing of New Life Baptist Church; to have a deep love for children; and to have the educational background to teach the necessary subjects. Pastor Chase represented that all of New Life’s staff were qualified under these criteria. Pastor Chase’s response was not sufficient to satisfy Dr. Porter. On January 20, 1983, Dr. Porter wrote Pastor Chase again. In his letter, Dr. Porter pointed out that Massachusetts required that schools be operated one hundred and eighty days each year and, therefore, that New Life’s school year was five days short. He also asked for additional information regarding the educational background of the New Life teachers, including their degree status, major and minor, and teaching and related experience. Dr. Porter also requested a further explanation of the New Life curriculum and asked for an opportunity to visit New Life with members of his staff to review the school’s curriculum materials and observe the teachers. At this point, Pastor Chase apparently concluded that he would not succeed in his effort to persuade the School Committee that it was unnecessary and inappropriate to require that New Life seek approval. It was also then foreseeable that if the approval process continued New Life would not obtain approval unless, at a minimum, it upgraded the educational qualifications of its teachers, because during the 1982-1983 school year only three of the New Life Academy’s eight or nine teachers were college graduates. It was also then foreseeable that the School Committee would require other reforms before approving New Life. Following Dr. Porter’s January 20, 1983 letter, plaintiffs joined with several churches of like faith and their members to initiate this litigation. On March 7, 1983, they filed suit against the organizations and officials of East Longmeadow responsible for education and their counterparts in other towns. In this action plaintiffs seek a declaration that M.G.L. c. 76, § 1, as East Longmeadow has sought to apply it to plaintiffs, violates the United States Constitution; an injunction against such application of the statute against plaintiffs; money damages for violation of plaintiffs’ civil rights; and attorney’s fees. On March 9, 1983, Pastor Chase wrote again to Dr. Porter, stating in part: I trust you will forgive the delay in answering your letter of January 20, 1983. So much has been happening and going on these past few weeks. Due to the nature of the school situation in Massachusetts, I was instructed by Council [sic] to refrain from answering until after a suit had been filed in the courts. Such suit was filed in Federal District Court in Boston on March 7. I want to assure you again, Dr. Porter, and the School Board, we are not trying to hide anything, nor be evasive. As I mentioned in my last letter, I reaffirm now, we have not in the past nor do we in the future have any desire for an outside organization to approve any of our church ministries. You are welcome to visit at anytime. I would simply ask a day or two notice. My schedule is extremely busy and I would like to give you the time you need. On June 13, 1983, Dr. Porter replied to Pastor Chase by writing: I have not pursued the matter of School Committee approval for the New Life Baptist Church as I did not wish to make an issue of the matter hoping that we can come to some understanding. The matter of seeking approval rests with you and your associates. If you expect the School Committee to approve the New Life Baptist Church School as required under Mass. G.L. Ch. 76, Sec. 1, you must request approval and submit detailed information on the organization of the school, courses offered at each level, the number and educational qualifications of staff, show a 180 school day calendar year with basic annual hourly requirements, curriculum outlines for each grade and subject, titles and publishers of text books used in each grade and subject area, and a master schedule showing teacher assignments, daily classes scheduled with special provision for laboratory sciences. Unless you take the steps for approval soon, by early August, I will have to recommend that the School Committee refer this matter to Town Counsel for legal proceedings. Please understand that the School Committee has taken an oath to uphold the laws of the Commonwealth of Massachusetts, and they must see that private schools in East Long-meadow operate legally. You can expect the School Committee to be reasonable in their determination of the adequacy of the provision of education by the New Life Baptist Church School. I shall await an answer from you soon. All further communications between the parties have been in the context of this litigation. 4. The East Longmeadow Approval Process As indicated earlier, the court in this case is required to decide, among other things, whether the approval process which was being implemented on behalf of the East Longmeadow School Committee was the least restrictive means necessary to satisfy Massachusetts’ compelling interest in assuring that the students attending New Life Academy are adequately educated and whether that process fosters an excessive entanglement between the government and religion. The essential characteristics of the standards and procedures that East Longmeadow has sought to apply to New Life, and similarly situated schools, include the following: (1) The private school must make a request for approval. Dr. Porter’s communications with Pastor Chase made this plain. Dr. Drinkwater’s written “Private School Approval Process” reiterated that a private school would be required to submit certain information “accompanied by a request for approval.” At trial, Dr. Drinkwater did suggest that if a private school fully participated in the approval process, but had religious objections to saying that it was seeking or accepting approval, he would not recommend that it be required to state it was seeking or accepting approval. As discussed in the Conclusions of Law, this testimony does not operate to alter the approval process litigated in this case. Nor would such an alteration alone cure the constitutional infirmities of defendants’ conduct. (2) The private school must provide information concerning the curriculum; the school hours and number of school days; the identity of the pupils; the qualifications of the teachers; compliance with anti-discrimination laws; and conformity of the building with health and safety standards. (3) Teachers must have college degrees, although if there were a small number studying for college degrees not yet earned, approval might be attainable. (4) The subjects required by Massachusetts law must be taught. Instructional materials must be reviewed by East Long-meadow officials to assure that they cover the legally required subjects in a thorough and efficient manner. (5) During the second year of a school’s operation, East Longmeadow school officials must visit the private school to discuss the curriculum, review instructional materials, and observe classes being taught. If the officials were immediately satisfied with the adequacy of instruction, a single visit might suffice. If, however, East Longmeadow could not as a legal or practical matter rely on the college degrees of the teachers, its officials would have to go into classrooms on a frequent basis to observe actual teaching. In addition, if the representatives of East Longmeadow perceived deficiencies in a school’s program, they would inform the school of their concerns and offer advice and assistance to achieve improvements in instruction. The School Committee’s final judgment on whether to grant approval would depend in part on how well the school responded to its criticisms and suggestions. (6) The initial approval process would, if successful, take about two years. An approved private school’s right to continued approval would be reviewed every two years. 5. The Burden on the Free Exercise of Plaintiffs’ Religious Beliefs The plaintiffs’ refusal to participate in the East Longmeadow approval process has been motivated primarily by their sincere religious beliefs. Plaintiffs may also be influenced by a recognition that approval of New Life Academy as currently constituted would be unlikely. Rather, it is foreseeable that New Life would have to adopt reforms required by East Longmea-dow to obtain approval. However, as explained below, the court finds that plaintiffs would for religious reasons refuse to participate in the East Longmeadow approval process even if it were evident that their Academy would be approved without any alteration. As indicated earlier, it is plaintiffs’ sincere religious belief that it would be a sin inviting God’s judgment to acknowledge that the government has the authority to approve or disapprove the educational ministry of their church. To them, participating in the current approval process would constitute the sin of subordinating God to the authority of the state. East Longmea-dow’s requirement that New Life request approval is to plaintiffs a civil compulsion to commit a sin. Compelling plaintiffs to sin burdens the free exercise of their religion. In addition, the plaintiffs would for religious reasons refuse to submit New Life Academy for approval by the East Long-meadow School Committee even if approval was likely to be easily obtained. This conclusion is based on plaintiffs’ testimony and reinforced by the testimony of Pastor Joseph A. Henry of the First Baptist Church of East Longmeadow. First Baptist and New Life are each fundamentalist separatist churches. First Baptist initially participated in the process East Longmeadow was using to evaluate First Baptist’s educational ministry for approval. First Baptist employs only college-educated teachers. As the approval process approached its conclusion, it appeared that First Baptist met all of the School Committee’s requirements. Yet, Pastor Henry withdrew First Baptist from consideration because, as he focused on the issue, he concluded that to participate in a process which would result in approval would be to recognize the state’s authority over his church’s ministry by, in effect, asking permission of the state to carry on its religiously required educational ministry. While he continued to be willing to cooperate by providing information to the School Committee, he concluded it would be a sin to participate in an approval process. The East Longmeadow approval process would also burden the free exercise of plaintiffs’ religious beliefs in a way unlikely to be experienced by Pastor Henry and the First Baptist Church. Pastor Henry and plaintiffs share a concern that the potential, practical effect of allowing the state to approve their educational ministries would be to allow the state to control aspects of it. It appears that this fear would be realized if New Life engaged in East Longmeadow’s approval process. Few of New Life’s teachers are college-educated. This is a matter of considerable, understandable concern to the East Long-meadow School Committee. It appears, at a minimum, that the School Committee would require that New Life employ virtually all college-trained teachers before approving its Academy. This would require the replacement of many of New Life’s current teachers. Pastor Chase testified that when he needs to obtain teachers for New Life, he prays for God to send them. College graduates who meet New Life’s other criteria are available. Although subject to economic constraints, plaintiffs have no religious objection to employing such college graduates. They sincerely believe, however, that it would be a sin to allow the government to dictate who New Life may or may not employ in its educational ministry because, once again, they would be compromising the sovereignty of God by submitting the church to the authority of the state. Finally, the East Longmeadow approval process burdens the free exercise of plaintiffs’ religion by placing them in a position where they feel they must choose between obeying God or the state, and run the risk of retribution by the authority they decide to disobey. This has had injurious physical and psychological effects on the individual plaintiffs. The difficult choice presented to the individual plaintiffs by the requirement that New Life seek and obtain approval also threatens the viability of the fledgling church. Present and potential members of New Life believe the church must provide a school to perform its educational ministry. The church is likely to lose some members if it does not offer a school. It is also likely to lose some members if parents are threatened with prosecution because their children attend a school which has not been approved. This is a burden on the plaintiff New Life Baptist Church. The East Longmeadow approval process does not, however, threaten plaintiffs’ way of life. In contrast to the Amish, for example, plaintiffs’ religion does not require them to live apart from society. While they believe their church must be insulated from government influence — and thus would not accept any form of government funding — plaintiffs seek to educate their children to practice their religion as productive workers and effective citizens in American society, rather than isolated from it. Plaintiffs’ religious beliefs also do not prevent them from satisfying at least some of the School Committee’s concerns. For example, New Life’s school building meets Massachusetts health and safety requirements. Members of the church are concerned for the safety of their children and are anxious to assure that their school building meets legal safety standards. They allow public officials to inspect the premises and issue required permits. They do not believe this compromises the sovereignty of God because, to them, the church is the members and their ministries, not the building they occupy. Thus, they do not believe that submitting their building for approval constitutes submitting their church for approval. In addition, after Dr. Porter informed Pastor Chase that state law required that schools be open one hundred and eighty days per year, New Life extended its school year to one hundred and eighty days. Pastor Chase testified at his deposition that this change was made to comply with state law. At trial Pastor Chase explained that this represented a voluntary-decision to comply with state law and, in any event, did not in his mind present an issue of state control or approval of New Life’s educational ministry. Plaintiffs’ religious convictions do not prevent them from cooperating with secular authorities in other ways which are relevant to this case. Indeed, plaintiffs believe that they are commanded to obey civil law unless it conflicts with God’s requirements. Plaintiffs have expressed no religious objection to teaching all of the subjects required by Massachusetts law and have been doing so, although the quality and thoroughness of that instruction is seriously disputed. Plaintiffs also remain willing to provide all of the information requested by Dr. Porter and Dr. Drinkwater, but not for the purpose of attempting to obtain approval of New Life. Plaintiffs are, therefore, willing to disclose the identities of New Life students; describe the New Life curriculum in a manner which would indicate that the appropriate subjects are being taught; and disclose the educational qualifications of their teachers. 6. Plaintiffs’ Proposal for Satisfying the State’s Compelling Interest in the Education of New Life Students Plaintiffs recognize that the state has an important, legitimate interest in assuring that all students, including those whose families are members of New Life, are adequately educated. It is their view, however, that the East Longmeadow approval process is not necessary to provide the state with this assurance. Rather, they contend that the use of standardized tests, in conjunction with personal follow-up in appropriate cases, will assure that New Life students are progressing in learning efficiently and thoroughly the subjects in which the state is interested. Plaintiffs have no religious objection to New Life students taking standardized tests. They are also willing to have the test scores for each New Life student submitted to the School Committee, preferably by the parents rather than New Life, as long as this is not done as part of an attempt to obtain approval for New Life. The parents are willing to submit the test scores. They are also willing to participate in subsequent meetings with public officials when test scores suggest this is desirable in order to discuss the scores, educational difficulties a child may have, and ways to remedy such difficulties. The faculty and staff of New Life would also be available to participate in such discussions. Plaintiffs assert that the process they propose as an alternative to the East Long-meadow approval process would achieve results which would satisfy the state’s reasonable concerns regarding the education of their children. For example, in at least one case standardized tests and subsequent efforts indicated that a New Life student had a learning disability. As a result, his parents transferred him to a public school for learning disabled children. Plaintiffs assert that the alternative means of assuring that New Life students are adequately educated which they propose would not burden the free exercise of their religious beliefs. Nor, they say, would it excessively entangle the government and their church. 7. The Expert Testimony The parties introduced considerable evidence regarding the value of standardized testing in meeting the state’s interest in assuring that children are adequately educated generally and the sufficiency of plaintiffs’ foregoing alternative particularly- Plaintiffs presented the testimony of Dr. Cecil Reynolds, an expert in educational testing. As Dr. Reynolds and defendants’ experts agreed, there are two widely accepted types of standardized educational tests. One type is a norm-referenced test which compares a student’s performance to that of other students in a reference group who have taken the test. This type of test permits one fourth grader, for example, to be compared with other fourth graders across the country or in an another school. The second familiar form of standardized test is the criterion-referenced test. A criterion-referenced test measures whether a student has mastered a certain skill, such as long division. Criterion-referenced tests are designed to measure individual abilities, not to provide comparisons with other students. Dr. Reynolds and defendants’ experts also agreed that standardized tests are used in connection with important educational decisions throughout the United States. Massachusetts recently adopted a program of periodic administration of criterion-referenced tests to determine whether all students are adequately acquiring basic skills in reading, writing, and mathematics. M.G.L. c. 188 (1985). Standardized tests are also used in measuring teacher effectiveness and comparing school districts. The Stanford Achievement Test, which has been administered by New Life since the inception of this case, is a nationally recognized norm-referenced test. According to Dr. Reynolds, it is common for a school district to have standardized tests specially devised to complement commercially available tests to measure fully matters such as the efficiency, thoroughness and progress of an educational program. In Dr. Reynold’s view, standardized criterion and norm-referenced tests either exist or could be developed to allow East Long-meadow to determine whether students at New Life were adequately acquiring the skills and knowledge necessary to become productive workers and effective citizens. Indeed, a number of states now rely on the results of standardized tests in assessing the adequacy of the education of students attending private religious schools or being educated at home. See Alaska Stat. § 14.-45.120; Ark.Stat.Ann. § 80-1503.6(3); Fla.Stat.Ann. § 232.02; La.Rev.Stat.Ann. § 17.236.1 D.(2); N.C.Gen.Stat. § 115C-549; W.Va.Code § 18-28-3. Dr. Reynolds’ conclusion that a combination of criterion and norm-referenced tests either exist or could be devised to measure whether New Life students are acquiring appropriate skills and knowledge derives in part from his view that a state’s legitimate interest is in assessing what students know, rather than where they learned. Dr. Reynolds also testified, however, that standardized test results are the best measure of teacher effectiveness. In his view, a college degree is not an essential requirement for either elementary or secondary school teachers. Dr. Reynolds acknowledged that integrity in the testing procedures is required for the results to have the value he ascribes to them. He believes such integrity can be attained in the testing of New Life students. Dr. Reynolds did not contend that test results alone would always satisfy the state’s interest in assuring that a child was acquiring essential skills and knowledge. If test results raised a question concerning this, one or more meetings between School Committee representatives, parents and perhaps teachers would be necessary to identify the source of the child’s problem. To accomplish this, further specialized testing might be required. If this process indicated that a student or group of students were having problems because they were not being adequately taught at school, the public officials could encourage the parents to seek improved education for their children, either by causing improvement of the child’s current school or by transferring the child to another school. Dr. Reynolds felt most parents, including most fundamentalist Christian parents, would be responsive to legitimate expressions about the adequacy of their child’s education. If they were not, the state could initiate legal proceedings to compel appropriate education of the child. Defendants presented several witnesses who testified concerning standardized testing and the sufficiency of plaintiffs’ proposal for assuring that New Life students were learning adequately. Dr. Porter acknowledged that standardized test scores are a very important measurement of whether or not children are in fact being educated. Such tests are used in the East Longmeadow public schools to evaluate teaching, to improve the curriculum, and to see if the students are being taught certain subjects and developing certain skills. Dr. Porter views the purpose of education to be to impart knowledge to students. To him, standardized testing is a way to determine if this is being done. Dr. Porter also testifed that a school must have competent teachers. With regard to teacher qualifications, Dr. Porter felt that a college degree was generally required, but that for a religious school some comparable training, not resulting in a college degree, might be acceptable for elementary school instructors. Dr. Porter himself had been taught in Catholic parochial schools by some instructors who did not have college degrees. In Dr. Porter’s view, however, college educated teachers are more important now than when he was young, and indispensable for teachers in post-elementary education. He would not have recommended approval of New Life as long as it employed its staff as of March 1985, which included few teachers with college degrees. Dr. Drinkwater testified that in his opinion every aspect of the East Longmeadow approval process described earlier would be essential to his deciding whether to recommend that the School Committee approve New Life. In view of M.G.L. c. 76, § 1, Dr. Drinkwater believes it is his job to participate in deciding whether a school should be approved. He does not believe he is required to assess the progress of individual students. Dr. Drinkwater did acknowledge that if certain criterion-referenced tests were properly administered, they would inform him of whether the subjects tested were being taught at New Life. Moreover, he testified that if those tests were properly administered, the results would also disclose whether those subjects were being taught as efficiently and thoroughly at New Life as in the East Longmeadow public schools. Periodic testing employing proper procedures would also, in Dr. Drink-water’s opinion, disclose whether students at New Life were making progress in the subjects tested which is equivalent to the progress made in those subjects by East Longmeadow public school students. Dr. Drinkwater does not, however, believe that he could rely on standardized test results to decide whether to recommend approval of New Life. He expressed concern about the integrity of the testing procedures employed by New Life. He also had a more fundamental concern. To Dr. Drinkwater, an essential purpose of education is to instill in children a “thirst for knowledge” and the reasoning skills to satisfy that thirst. Dr. Drinkwater believes that to impart those qualities an instructional program must have quality, college-educated teachers and a good curriculum. In his view, the results of standardized tests do not provide the information necessary to evalute an educational program. Thus, he believes every aspect of the previously described East Longmeadow approval process is indispensable to fulfilling East Longmeadow’s statutory duty. Dr. George Madous testified on behalf of defendants. He is an expert in school effectiveness and educational testing. Dr. Madous recognized that standardized tests are used for many important educational decisions, such as determining whether to graduate a student, whether to hire or fire a teacher, and to assess the effectiveness of public schools. Dr. Madous, however, expressed a general concern about the reliance on tests alone in making important educational decisions. This concern is based, in part, on his view that high stakes create incentives for a school or school system to cheat on the tests. Although he did not have any evidence of impropriety in the administration of standardized tests at New Life, he would be concerned about the integrity of its testing procedures if test results were to be used to determine whether its Academy should be approved. His concern would be satisfied, however, if an independent contractor was engaged to administer tests acceptable to the School Committee. This concern could also be addressed by having the tests administered to New Life students by representatives of the School Committee in the public schools. Dr. Madous also expressed other concerns regarding the value of testing in the context of this case. Testing, in his view, is an ex post facto measure which would expose children to losing a period of effective learning time if the results revealed a problem with their education. Dr. Madous also noted that no standardized tests exist to measure ability in drawing, music, health education (including sex education), physical education, and citizenship, which are all subjects he considers important to the state’s interest in the adequacy of a child’s education. He acknowledged, however, that appropriate standardized tests in some of these areas, including citizenship, could be devised. Dr. Madous also testified that standardized tests could adequately measure the efficiency and thoroughness of instruction in the subjects tested. The Stanford Achievement test does this in the areas of English, reading, and arithmetic. Indeed, Dr. Madous indicated that children who performed satisfactorily on the periodic Massachusetts Basic Skills Tests, which measure reading, mathematics and writing, would be adequately progressing toward becoming productive workers and effective citizens. In addition, Dr. Madous testified that it would be feasible, although expensive, for school officials to do individual follow-up concerning New Life children whose test results suggest problems. Dr. Madous felt that most parents, including parents whose children attend New Life, want a good education for their children. He expects that if school authorities informed New Life Academy parents that their children were doing poorly in school, they would at least seriously consider sending their children to another fundamentalist Christian school, such as First Baptist’s. As their final witness, defendants presented the expert testimony of Dr. Kevin Ryan, a professor of education at Boston University who specializes in teacher training. Dr. Ryan expressed the view that New Life’s teachers did not appear to have either the subject matter knowledge or educational training necessary to be qualified to teach. In his view, a college degree, even if not in education, is essential for a person to be minimally qualified to begin teaching. He felt that a college degree of any type would adequately evidence the exposure to subject matter and teaching technique necessary for one to teach. Dr. Ryan testified that the East Long-meadow approval process is a reasonable means of determining whether New Life Academy should be approved. He did not, however, view each element of it as essential to determining whether instruction in the legally required subjects at New Life equals in efficiency, thoroughness, and progress to that in the East Longmeadow schools. Dr. Ryan also testified that East Long-meadow’s process was not, in his opinion, the only acceptable means of assuring that instruction at New Life in the legally required subjects is comparable in efficiency, thoroughness and progress to instruction in East Longmeadow. In his view, it would be minimally adequate to satisfy the state’s interest in the education of New Life students if the School Committee received (1) the curriculum used by New Life showing that the legally required subjects were being taught; (2) resumes of New Life teachers indicating that all had college degrees; and (3) standardized test scores showing that the students were doing at least average work in reading, writing, and arithmetic. Dr. Ryan also expressed the belief that if public school officials told New Life parents that standardized test scores indicated their children were performing below their potential, the parents would seek to identify the difficulty and exert their influence to improve their children’s educational environment. 8. The East Longmeadow Approval Process, As Applied to Plaintiffs, is Not the Least Restrictive Means of Satisfying the State’s Legitimate Interest in Education. Having considered the substance and credibility of all of the testimony presented regarding the value of standarized testing generally and plaintiffs’ proposal as most fully elaborated by Dr. Reynolds particularly, the court concludes as follows. The defendants in this case have been attempting to perform their statutory duty under M.G.L, c. 76, § 1. They are genuinely concerned about the educational welfare of New Life students. They also have a reasonable basis to be concerned about the qualifications of at least some New Life teachers to instruct children. Defendants have not, however, been sufficiently sensitive to plaintiffs’ sincere religious objections to submitting their educational ministry for government approval. Nor, as discussed in the Conclusions of Law, have defendants recognized the limits of the legitimate state interest in the education of children and the parents’ preeminent role in selecting among educational alternatives which are adequate to satisfy the state’s interest. As described in the Conclusions of Law, the state's interest is in assuring that a child’s education occurs in a safe and healthy environment and prepares the child to be a productive worker and effective citizen in our democracy. To achieve this goal, Massachusetts law requires that a child attend school in a safe building until age sixteen, or about tenth grade. Plaintiffs provide a safe school for New Life students, teach the subjects the state feels are essential, and require that New Life students attend school until at least age sixteen. However, the testimony presented and the inferences which the court has drawn from it indicate that this case involves, in part, a clash of educational philosophies. Plaintiffs want New Life students to be educated in their own religious faith. This involves, among other things, an enduring commitment to submit to the word of God as plaintiffs understand it. As expressed most vividly by Dr. Drinkwater, defendants seem animated in part by a desire to assure that New Life students develop a “thirst for knowledge.” Although not plainly stated by any witness, the court infers that this “thirst for knowledge” includes the capacity to question the submissive faith these students now share with their parents. As described in .the Conclusions of Law, any effort to encourage New Life students to question the faith they share with their families exceeds the state’s legitimate interest in education. In any event, the court concludes that standardized tests exist or could feasibly be devised to measure the efficiency, thoroughness, and progress of the learning of New Life students in the subjects they must master to become productive workers and effective citizens. The School Committee can require that New Life students take standardized tests, selected by the School Committee, at periodic intervals. It is feasible to assure the integrity of the standardized testing process and, therefore, the reliability of the test results. If East Longmeadow does not trust New Life to administer the tests, an independent contractor may be engaged or the tests may be administered to New Life students by East Longmeadow officials in the public schools. It is also feasible for the School Committee to acquire from New Life adequate information concerning the courses taught, the curriculum used, and the academic credentials of New Life teachers, among other things. The School Committee can also obtain the results of the standardized tests from the parents of students at New Life, if not from the school, or directly from any testing service utilized. It is also feasible for the School Committee to follow up individually any case in which the test results suggest that a student is not learning adequately. This follow-up could include discussions with New Life parents and, where desirable, with New Life teachers. It could also involve further testing when appropriate. This is an approach now regularly utilized with regard to children in Massachusetts who may have learning disabilities. The court expects that New Life parents would be responsive to any problems identified by this process concerning the edu-cátion offered at New Life or their child’s ability to learn. They would likely respond by causing New Life to improve the education offered, transferring their child to another fundamentalist Christian school— which is a viable alternative in East Long-meadow — or by placing their child in another school equipped to address their child’s educational needs. If parents do not respond in a manner satisfactory to the East Longmeadow School Committee, it may initiate civil litigation with a view to obtaining an order removing the child from his parents’ custody or requiring a specific form of education for the child. The foregoing process may be sufficient to satisfy the state’s interest in the education of New Life students. The court does, however, recognize that testing is an ex post facto measure of the adequacy of instruction. The defendants contend that the ex post facto nature of the testing process necessitates teacher qualification requirements, particularly a requirement that each teacher have a college degree. As indicated earlier, the record at trial was not fully developed concerning the issue of whether requiring that teachers have a college degree, or other particular academic credentials indicating exposure to teaching techniques and the subject matter to be taught, is essential to assuring that students are adequately educated. It is not, however, necessary or appropriate for the court to decide now whether particular teacher credentials, in addition to the previously described program of standardized testing and individual follow-up, are necessary to satisfy the state’s interest in the education of New Life. This issue should be addressed by East Longmeadow. It is possible that East Longmeadow will receive guidance from the state government, the Massachusetts legislature, or the Supreme Judicial Court concerning this question. In any event, plaintiffs will have to respond to the School Committee’s revised effort to assure that New Life students are adequately educated. This process may obviate the need for further litigation concerning a teacher credential requirement, among other things. If not, the relevant questions will be clarified and the eviden-tiary record may be amplified. It is sufficient for present purposes that the court now finds that East Longmeadow has not shown that its approval process is the least restrictive means of assuring New Life students are adequately educated. Rather, the evidence demonstrates that standardized testing and individual followup, or such testing, follow-up and a requirement that teachers have appropriate academic credentials, would be adequate to satisfy the state's interest in the education of New Life students. Either approach imposes a lesser burden on the free exercise of plaintiffs’ religious beliefs than the East Longmeadow approval process. Neither would violate the Establishment Clause of the First Amendment of the United States Constitution. 9. The East Longmeadow Approval Process Would Result in the Excessive Entanglement of the State and Religion. In contrast, as described in the Conclusions of Law, the East Longmeadow approval process at issue in this case would foster a constitutionally unacceptable degree of entanglement between the government and religion. Because many New Life teachers do not have college degrees, the initial approval process would require East Longmeadow representatives to make frequent visits to many classrooms to observe teaching. As all subjects are taught at New Life from a religious perspective, these visits would necessarily involve surveillance of religious as well as secular instruction. This surveillance would not be an end in itself. In this case it is foreseeable that it would lead to suggestions for improvement of instruction, coupled with offers of public advice and assistance. It is likely that East Longmeadow would strongly suggest, if not formally require, that New Life replace many present teachers with college graduates. New Life’s response to East Long-meadow’s suggestions or requirements would substantially affect whether approval of the school would be granted. If the Academy were approved, its right to retain that status would be reviewed every two years. Cumulatively, this interaction would constitute an excessive entanglement of government and religion. 10. Summary In summary, the court concludes that the East Longmeadow approval process at issue in this case would burden the free exercise of plaintiffs’ religious beliefs in an effort to satisfy the state’s compelling interest in assuring that New Life students are adequately educated. It is not, however, the least restrictive means of satisfying that compelling state interest. In addition, the East Longmeadow approval process would foster an excessive entanglement of the government and religion. The alternative means which East Longmeadow could use to assure that New Life students were being adequately educated would not foster an excessive entanglement of government with religion. Thus, for the reasons explained in the Conclusions of Law, the East Longmeadow approval process, as applied to plaintiffs, violates the First Amendment. III. CONCLUSIONS OF LAW A. The Meaning of M.G.L. c. 76, § 1 There is a threshold issue regarding the meaning of M.G.L. c. 76, § 1 which must be resolved prior to addressing whether that provision is unconstitutional as defendants have sought to apply it to plaintiffs. Plaintiffs contend that the statute does not authorize the East Longmeadow School Committee to consider the qualifications of New Life’s teachers. Defendants disagree. The court concludes that M.G.L. c. 76, § 1 permits a school committee to examine the qualifications of private school teachers to instruct children, but does not require such an examination. Plaintiffs’ argument that M.G.L. c. 76, § 1 does not authorize examination of private school teacher competency relies on the language of that provision, particularly as it compares to M.G.L. c. 71, § 1, which pertains to public school teachers. M.G.L. c. 71, § 1 provides that public school teachers shall be “of competent ability and good morals.” M.G.L. c. 76, § 1 does not contain a comparable requirement. Rather, M.G.L. c. 76, § 1 provides that a private school shall be approved when the school committee is “satisfied that the instruction in all the studies required by law equals in thoroughness and efficiency, and in the progress made therein, that in the public schools in the same town.” (emphasis added). Plaintiffs, therefore, contend that a comparison of the relevant public and private school provisions show that the drafters knew how to provide plainly for authorizing inquiry into teacher competence and did not do so in the law relating to private schools. Plaintiffs argue that M.G.L. c. 76, § 1 authorizes inquiry solely concerning “instruction” — that is, what is being taught — rather than examination of the “instructors.” Plaintiffs believe this interpretation is not only compelled by the language of M.G.L. c. 76, § 1, but is consistent with the Massachusetts Supreme Judicial Court’s construction of the predecessor statute to M.G.L. c. 76, § 1. With regard to that statute, the Supreme Judicial Court said, “the great object of these provisions of the statutes has been that all children shall be educated, not that they shall be educated in any particular way.” Commonwealth v. Roberts, 159 Mass. 372, 374, 34 N.E. 402 (1893). While plaintiffs’ construction of M.G.L. c. 76, § 1 is arguably reasonable, it is not right. The Massachusetts Supreme Judicial Court recently addressed M.G.L. c. 76, § 1 as applied to home education and, in pertinent part, construed it as follows: The superintendent or school committee may also examine the competency of the parents to teach the children. General Laws c. 71, § 1, provides that teachers shall be “of competent ability and good morals.” While we recognize that teachers in public schools must be certified, certification would not appropriately be required for parents under a home school proposal, [citations omitted]. Nor must the parents have college or advanced academic degrees. However, the superintendent or school committee may properly inquire as to the academic credentials or other qualifications of the parent or parents who will be instructing the children. Care and Protection of Charles & Others, 399 Mass. at 339, 504 N.E.2d 592 (emphasis added). This decision indicates that the highest court of Massachusetts has interpreted M.G.L. c. 76, § 1 to permit, but not to require, a school committee to consider teachers’ qualifications as an indirect means of evaluating “instruction.” This construction of the state statute requires deference from this court. Erie Railroads Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). B. M.G.L. c. 1/6, § 1 is Being Tested Only As Applied By East Longmea-dow to Plaintiffs. It is important to recognize that the court is not now addressing whether M.G.L. c. 76, § 1 is generally invalid for any reason. Rather, the sole issue being decided is whether M.G.L. c. 76, § 1 as construed and applied by East Longmea-dow abridges plaintiffs' freedom under the First Amendment. At the outset of this case plaintiffs contended that M.G.L. c. 76, § 1 should be generally invalidated as unconstitutionally