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On December 12, 2008, the United States Court of Appeals for the Ninth Circuit published an opinion (local PDF download link) in the case of Sklar, et al v. Commissioner of Internal Revenue (Court of Appeals Docket #06-729601).

The Sklars lost their case on a number of grounds.   I don’t know if this was their last shot or if further appeals are still possible.

Part 1:  Scientology tax break case back in court — 2008-02-11

Opinion Text (Click here to download PDF from court website, click here to download PDF from frouman.com)

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Michael Sklar; Marla Sklar,
Petitioners-Appellants,
v.
Commissioner of Internal
Revenue,
Respondent-Appellee.

No. 06-72961
Tax Ct. No. 395-01
OPINION

Appeal from a Decision of the United States Tax Court
Argued and Submitted February 4, 2008—Pasadena, California
Filed December 12, 2008
Before: Harry Pregerson and Kim McLane Wardlaw, Circuit Judges, and Ronald B. Leighton,* District Judge.
Opinion by Judge Wardlaw

*The Honorable Ronald B. Leighton, United States District Judge for the Western District of Washington, sitting by designation.

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COUNSEL
Jeffrey I. Zuckerman (argued), Curtis, Mallet-Prevost, Colt & Mosle, LLP, Washington, D.C., for the petitioners-appellants.
Ellen Page DelSole (argued), Eileen J. O’Connor, and Ken­neth L. Greene, Department of Justice, Washington, D.C., for the respondent-appellee.

OPINION
WARDLAW, Circuit Judge:
Michael and Marla Sklar (“the Sklars”) appeal from a deci­sion of the Tax Court affirming the disallowance of deduc-

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tions they claimed for tuition and fees paid to their children’s Orthodox Jewish day schools. See Sklar v. Comm’r, 125 T.C. 281 (2005). We have jurisdiction pursuant to 28 U.S.C. § 7482(a)(1), and we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Taxpayers
The Sklars are Orthodox Jews who in 1995 had five school-aged children. Rather than send their children to public school to meet California State educational requirements, the Sklars enrolled each of their children in one of two Orthodox Jewish day schools, Emek Hebrew Academy (“Emek”) and Yeshiva Rav Isacsohn Torath Emeth Academy (“Yeshiva Rav”). They did so “because of their sincerely and deeply held religious belief that as Jews they have a religious obligation to provide their children with an Orthodox Jewish education in an Ortho­dox Jewish environment.” In 1995, the Sklars paid a total of $27,283 to Emek and Yeshiva Rav which included $24,093 for tuition, $1300 for registration fees, $1715 for other man­datory fees, and $175 for an after school Mishna program at Emek.1 During 1995, Emek and Yeshiva Rav each were exempt from federal income tax under I.R.C. § 501(c)(3), which provides tax exempt status for certain institutions “or­ganized and operated exclusively for religious, charitable, . . . or educational purposes,” among others. Both schools also qualified as organizations described in I.R.C. § 170(b)(1)(A), which allows donors to deduct charitable donations to qualify­ing institutions.
Both schools provided daily exposure to Jewish heritage and values. Their goals included educating their students in Jewish heritage and values, as well as the tenets of the Jewish faith. To this end, time was allocated in the school day for prayers and religious studies, students were required to adhere

1Mishna is the study of Jewish oral law.

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to Orthodox Jewish dress codes, and boys and girls attended classes separately.
A child’s day at each school included specified hours devoted to courses in religious studies and specified hours devoted to secular studies. The length of time that each stu­dent participated in secular classes, as opposed to religious studies, and the length of the total school day varied with the gender and grade level of the particular student.
Quality secular education that fulfilled the mandatory edu­cation requirements of the State of California also was a goal of both schools. Emek sought to provide a thorough and well-balanced curriculum in both religious and secular studies so that every student could succeed “in the most rigorous yeshiva [(Jewish)] high schools and other institutions of higher learning.” Yeshiva Rav sought to prepare its students for matriculation to yeshiva high schools and to attend a col­lege or seminary.
During the school years in issue, the Sklars paid tuition and mandatory fees to Emek and Yeshiva Rav for their children’s education. To ensure payment, the Sklars, like other parents, were required to contract with each school to pay, and to give to each school postdated checks covering, the tuition for the upcoming school year. Both schools provided tuition dis­counts to families based on financial need, if documented by detailed financial information submitted to the schools’ schol­arship committees, but the Sklars did not seek or receive such assistance. Although an Orthodox Rabbinic ruling precluded either school from expelling students from the Jewish studies program during the school year, nonpayment of tuition could result in expulsion from secular studies and the schools’ refusal to allow the children to register for classes in the sub­sequent school year.

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B. The Prior Litigation
In 1993, the Sklars learned of a confidential closing agree­ment2 the Internal Revenue Service (“IRS”) had executed with the Church of Scientology that purportedly allowed deduc­tions for certain religious educational services such as audit­ing and training. The Sklars subsequently amended their tax returns for 1991 and 1992, and filed a return for 1993, includ­ing new deductions for a portion of the tuition they had paid to their children’s schools. See Sklar, 125 T.C. at 288. The IRS allowed these deductions, apparently under the impres­sion that the Sklars were Scientologists. See id. The Sklars claimed similar deductions in 1994, but these were disal­lowed. Id. at 288-89. The IRS Notice of Deficiency explained that because the costs were for personal tuition expenses, they were not deductible. The Sklars pursued an unsuccessful peti­tion for redetermination before the Tax Court regarding their 1994 deductions, which subsequently came before us. Judge Reinhardt, writing for our Court in an opinion joined by Judge Pregerson, upheld the Tax Court’s denial of the deduction. See Sklar v. Comm’r (Sklar I), 282 F.3d 610 (9th Cir. 2002), amending and superseding Sklar v. Comm’r, 279 F.3d 697 (9th Cir. 2002).
In Sklar I, the Sklars made virtually identical arguments to those they assert here, based predominantly on their theories that a portion of their tuition payments are tax deductible because they received in exchange only intangible religious benefits and the Scientology Closing Agreement is an uncon-2Under § 7121 of the Internal Revenue Code, the IRS is authorized to execute “closing agreements.” A closing agreement is “an agreement in writing with any person relating to the liability of such person (or of the person or estate for whom he acts) in respect of any internal revenue tax for any taxable period.” I.R.C. § 7121(a); see also 26 C.F.R. § 301.7121-1. Such closing agreements are intended to be “final and conclusive, and, except upon a showing of fraud or malfeasance, or misrepresentation of a material fact,” shall not be reopened or annulled. I.R.C. § 7121(b).

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stitutional establishment of religion from which they should also benefit.
The Sklar I panel soundly rejected the Sklars’ argument that certain 1993 amendments to the Tax Code rendered their tuition payments deductible as payments to exclusively reli­gious organizations for which the Sklars received only intan­gible religious benefits. 282 F.3d at 612-14. Specifically, the panel noted that the amendments addressed “clearly proce­dural provisions” and that the deduction the Sklars alleged would be “of doubtful constitutional validity.” Id. at 613.
Next, the Sklar I panel held that the IRS was compelled to disclose the contents of its Closing Agreement with the Church of Scientology, at least to the extent it fell under I.R.C. § 6104(a)(1)(A), see 282 F.3d at 614-18, and that such disclosure was necessary as a practical matter because the agreement affects “not just one taxpayer or a discrete group of taxpayers, but a broad and indeterminate class of taxpayers with a large and constantly changing membership.” Id. at 617. Further, the panel held “where a closing agreement sets out a new policy and contains rules of general applicability to a class of taxpayers, disclosure of at least the relevant part of that agreement is required in the interest of public policy.” Id. In Sklar I, the panel therefore rejected
the argument that the closing agreement made with the Church of Scientology, or at least the portion establishing rules or policies that are applicable to Scientology members generally, is not subject to public disclosure. The IRS is simply not free to enter into closing agreements with religious or other tax-exempt organizations governing the deductions that will be available to their members and to keep such provisions secret from the courts, the Congress, and the public.
Id. at 618. The Sklar I panel nevertheless opined, without resolving the issue, that the Tax Court’s ruling that the Clos-

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ing Agreement was irrelevant to the deductibility of the Sklars’ tuition payments was “in all likelihood correct.” Id. It continued:
The Tax Court concluded that the Sklars were not similarly situated to the members of the Church of Scientology who benefitted from the closing agree­ment. While we have no doubt that certain taxpayers who belong to religions other than the Church of Scientology would be similarly situated to such members, we think it unlikely that the Sklars are. Religious education for elementary or secondary school children does not appear to be similar to the “auditing” and “training” conducted by the Church of Scientology.
Id. at 618 n.13; see also Hernandez v. Comm’r, 490 U.S. 680, 684-85 (1989) (describing “auditing” and “training”).
The Sklar I panel then turned to the Sklars’ Establishment Clause and administrative consistency arguments. Although it was not required to decide those issues because the Sklars had “failed to show that their tuition payments constitute a par­tially deductible ‘dual payment’ under the Tax Code,” Sklar I, 282 F.3d at 620, the panel noted that had it been required to do so, it would have first concluded that the IRS policy constitutes an unconstitutional denominational preference under Larson v. Valente, 456 U.S. 228 (1982).3 See Sklar I,
3Larson v. Valente established an analytical framework to assess the constitutionality of statutes granting denominational preferences. 456 U.S. 228, 245-52 (1982). To survive an Establishment Clause challenge under Larson, a statute which grants a denominational preference must be justi­fied by a “compelling governmental interest” to which it is “closely fit­ted.” Id. at 247-48, 252; see also id. at 246 (“[T]his Court has adhered to the principle, clearly manifested in the history and logic of the Establish­ment Clause, that no State can pass laws which aid one religion or that prefer one religion over another.” (internal citation and quotation marks omitted)).

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282 F.3d at 618-19. The panel reasoned that the denomina­tional preference embodied in the Closing Agreement was unconstitutional because it “cannot be justified by a compel­ling governmental interest.” Id. However, the panel indicated it would not be willing to extend that preference to other reli­gious organizations for three reasons: First, an extension of the preference would amount to state sponsorship of all reli­gions, which the panel doubted “Congress or any agency of the government would intend.” Id. at 619-20. Second, an extension of the preference would be “of questionable consti­tutional validity under Lemon,”4 because administering the policy “could require excessive government entanglement with religion.”5 Id. at 620. Third, the requested policy violated appeared to violate I.R.C. § 170. Id.
The panel also indicated it would reject the Sklars’ admin­istrative consistency claim because it “seriously doubted” that the Sklars were similarly situated to the Scientologists.6 The
4In Lemon v. Kurtz, 403 U.S. 602 (1971), the Supreme Court established a three-prong test to determine whether the state has violated the Estab­lishment Clause: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive gov­ernment entanglement with religion.” Id. at 612-13 (1971) (internal cita­tions and quotation marks omitted).
5In Hernandez v. Commissioner, 490 U.S. 680 (1989), the Supreme Court rejected the claim that payments made to the Church of Scientology for purely religious education and training were deductible as gifts or con­tributions under I.R.C. § 170. Id. at 692-94. Among other reasons it gave for its decision, the Court explained that “the deduction petitioners seek might raise problems of entanglement between church and state.” Id. at 694; see also infra Part II.B (discussing § 170 and Hernandez).
6Judge Silverman, concurring, concluded that the question of whether the Sklars were “similarly situated” to the Scientologists had “no bearing on whether the tax code permits the Sklars to deduct the costs of their chil­dren’s religious education as a charitable contribution.” Sklar I, 282 F.3d at 622. Rather, he concluded that the Sklars were absolutely barred from taking the deduction by the Internal Revenue Code and Supreme Court precedent. See id. at 622-23.

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panel further stated that even if the Sklars were similarly situ­ated, “because the treatment they seek is of questionable stat­utory and constitutional validity under § 170 of the IRC, under Lemon, and under Hernandez, we would not hold that the unlawful policy set forth in the closing agreement must be extended to all religious organizations.” Id. at 620.
Finally, relying on United States v. American Bar Endow­ment, 477 U.S. 105 (1986), the Sklar I panel rejected the argu­ment that the Sklars’ tuition payments were deductible as a “dual payment” or “quid pro quo payment,” a payment made in part as consideration for goods and services and in part for charitable purposes. In American Bar Endowment, the Supreme Court held that the taxpayer must satisfy a two-part test to be entitled to the § 170 deduction for a quid pro quo payment:
First, the payment is deductible only if and to the extent it exceeds the market value of the benefit received. Second, the excess payment must be made with the intention of making a gift.
477 U.S. at 117 (internal citation and quotation marks omit­ted). The Sklar I panel held that the Sklars failed to introduce evidence demonstrating both “that any dual tuition payments they may have made exceeded the market value of the secular education their children received,” 282 F.3d at 621, or “that they intended to make a gift by contributing such ‘excess pay­ment.’ ” Id. The panel also suggested that for the purpose of demonstrating the first part of the American Bar Endowment test, the “market value” for the tuition payments would be the cost of a comparable secular education offered by private schools, evidence the Sklars had failed to introduce, perhaps, because of the “practical realities of the high cost of educa­tion.” Id.
C. The Current Litigation
On their 1995 tax return, the Sklars claimed $15,000 in deductions for purported charitable contributions that com-

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prised a portion of their five children’s tuition at Emek and Yeshiva Rav. The deduction was based on their estimate that 55% of the tuition payments were for purely religious educa­tion, an estimate supported by letters submitted two years later (in 1997) that were drafted by each of the schools at the Sklars’ request. Sklar, 125 T.C. at 288-89.
The IRS disallowed the $15,000 deduction. The IRS also determined the Sklars had “failed to meet the substantiation requirements of Internal Revenue Code Section 170(f)(8) with respect to the disallowed $15,000.00 of claimed charitable contributions.” The Sklars petitioned the Tax Court for a rede-termination of deficiency, asserting that (1) the tuition and fee payments to exclusively religious schools are deductible under a dual payment analysis to the extent the payments exceeded the value of the secular education their children received (a question left somewhat open in Sklar I); (2) Sec­tions 170(f)(8) and 6115 of the Internal Revenue Code, as enacted in 1993, authorized the deduction of tuition payments for religious education made to exclusively religious schools (an issue all but foreclosed by Sklar I); and (3) that the 1993 Closing Agreement between the Commissioner and the Church of Scientology constitutionally and administratively requires the IRS to allow other taxpayers to take the same charitable deductions for tuition payments to their religious schools (a question the panel discussed at length but declined to decide in Sklar I). Before the Tax Court, the Sklars and the IRS stipulated that in 1993 the IRS had executed a confiden­tial closing agreement with the Church of Scientology, set­tling several outstanding issues between the IRS and the Church of Scientology. See id. at 298. Under this agreement, members of the Church of Scientology were authorized to deduct as charitable contributions at least 80% of the fees for qualified religious services provided by the Church of Scien­tology. See id. at 298-99.
The Tax Court again rejected the Sklars’ arguments, hold­ing that the tuition and fee payments to the Jewish Day

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Schools were not deductible under any of the Sklars’ theories.7 First, the Tax Court rejected the Sklars’ effort to prove that the tuition and fee payments so exceeded the market value of the secular education their children received that they took on a “dual character,” i.e. that the payments had the character of both a purchase of education and a charitable contribution. Id. at 291-94; see also American Bar Endowment, 477 U.S. at 117. It found that the Sklars’ expert report regarding tuition at various Los Angeles area schools demonstrated only that
(1) Some schools charge more tuition than Emek and Yeshiva Rav Isacsohn, and some charge less; and (2) the amount of tuition petitioners paid is unremark­able and is not excessive for the substantial benefit they received in exchange; i.e., an education for their children.
125 T.C. at 293-94. The Tax Court concluded that the Sklars failed to demonstrate that any part of their tuition payments was intended as a charitable contribution and that the well-established law precluding deduction of tuition payments to schools providing both secular and religious education con­trolled. Second, the Tax Court held that the 1993 amendments to the Code “did not change what is deductible under section 170.” Id. at 296-97. In keeping with our reasoning in Sklar I, the Tax Court concluded that neither § 170(f)(8), nor § 6115, as amended in 1993, nor the accompanying legislative history suggested that Congress intended to make a substantive change to the Code or to overrule the “long line of cases” pre­cluding deductibility of tuition payments to religious schools. Id. at 296. Third, the Tax Court held that the Closing Agree­ment between the IRS and the Church of Scientology is irrele­vant to the question of whether the Sklars are entitled to the § 170 deductions. Id. at 299. Finally, the Tax Court concluded
7The Tax Court also ruled that the Sklars were not liable for an accuracy-related penalty the IRS had imposed under I.R.C. § 6662, an issue not before us on this appeal.

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that the Sklars’ separate payments for Mishna classes, which were held apart from other classes at Emek, should not be treated any differently than the tuition and fee payments. The Sklars timely appeal.
II. DISCUSSION
A.    Standard of Review
“We review the Tax Court’s conclusions of law and its con­struction of the tax code de novo, and no deference is owed that court on its application of the law.” Sklar I, 282 F.3d at 612. We review the Tax Court’s factual determinations for clear error and its evidentiary rulings for abuse of discretion. See Sparkman v. Comm’r, 509 F.3d 1149, 1155-56 (9th Cir. 2007).
B.    The Sklars’ 1995 Tuition Payments Are Not Deductible as Charitable Contributions Under the Internal Revenue Code
[1] Section 170 of the Internal Revenue Code allows tax­payers to deduct “any charitable contribution,” defined as “a contribution or gift to or for the use of” certain eligible enti­ties enumerated in § 170(c), including those exclusively orga­nized for religious purposes and educational purposes. I.R.C. § 170(a)(1), (c). “[T]o ensure that the payor’s primary pur­pose is to assist the charity and not to secure some benefit,” we require such contributions to be “made for detached and disinterested motives.” Graham v. Comm’r, 822 F.2d 844, 848 (9th Cir. 1987). Therefore, “quid pro quo” payments, where the taxpayer receives a benefit in exchange for the pay­ment, are generally not deductible as charitable contributions. See Hernandez v. Comm’r, 490 U.S. 680, 689-91 (1989). In keeping with this framework, tuition payments to parochial schools, which are made with the expectation of a substantial benefit, or quid pro quo, “have long been held not to be chari­table contributions under § 170.” Id. at 693; see also DeJong

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v. Comm’r, 309 F.2d 373, 376 (9th Cir. 1962) (“The law is well settled that tuition paid for the education of the children of a taxpayer is a family expense, not a charitable contribution to the educating institution.”).
[2] In Hernandez, the Supreme Court considered “whether taxpayers may deduct as charitable contributions payments made to branch churches of the Church of Scientology”8 in return for services known as “auditing” and “training.” 490 U.S. at 684. Both are considered forms of religious education. “Auditing” involves a form of spiritual counseling whereby a person gains spiritual awareness in one-on-one sessions with an auditor. By participating in “training,” a person studies the tenets of Scientology, gains spiritually, and may seek to become an auditor. Members of the Church of Scientology sought to deduct payments for auditing and training as chari­table contributions for religious services. The Court held that such payments for religious educational services “do not qual­ify as ‘contribution[s] or gift[s].’ ” Id. at 691. Rather, “[t]hese payments were part of a quintessential quid pro quo exchange: in return for their money, petitioners received an identifiable benefit, namely, auditing and training sessions.” Id. The Court reasoned “ ‘[t]he sine qua non of a charitable contribution is a transfer of money or property without ade­quate consideration.’ ” Id. (quoting American Bar Endowment, 477 U.S. at 118).
[3] The Court further rejected the taxpayers’ argument that a quid pro quo analysis was not even appropriate, because the
8In Hernandez, the Commissioner had stipulated before the Tax Court that “the branch churches of Scientology are religious organizations enti­tled to receive tax-deductible charitable contributions under the relevant sections of the Code.” 490 U.S. at 686. This stipulation isolated the statu­tory issue of “whether payments for auditing or training sessions constitute ‘contribution[s] or gift[s]’ under § 170.” Id. Similarly, the parties to the current litigation stipulated before the Tax Court “that an agreement dated October 1, 1993, between the Commissioner and the Church of Scien­tology settled several longstanding issues.” 125 T.C. at 298.

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payments for auditing and training services resulted in receipt of a purely religious benefit. Id. at 692-93. The Court first found no support in the language of § 170, which makes “no special preference for payments made in the expectation of gaining religious benefits or access to a religious service.” Id. at 693. Second, the Court reasoned that accepting the taxpay­ers’ “deductibility proposal would expand the charitable con­tribution deduction far beyond what Congress has provided.” Id. at 693. For example, “some taxpayers might regard their tuition payments to parochial schools as generating a religious benefit or as securing access to a religious service,” which would be incorrect because “such payments . . . have long been held not to be charitable contributions under § 170.” Id. Finally, the Court noted that “the deduction petitioners seek might raise problems of entanglement between church and state” because it would “inexorably force the IRS and review­ing courts to differentiate ‘religious’ benefits from ‘secular’ ones.” Id. at 694. While declining to pass on the constitution­ality of such hypothetical inquiries, the Court noted that “ ‘pervasive monitoring’ for ‘the subtle or overt presence of religious matter’ is a central danger against which we have held the Establishment Clause guards.” Id. (quoting Aguilar v. Felton, 473 U.S. 402, 413 (1985)). Thus, the Hernandez decision clearly forecloses the Sklars’ argument that there is an exception in the Code for payments for which one receives purely religious benefits.
1. The 1993 Amendments to the Tax Code Did Not Overrule Hernandez
To circumvent Hernandez’s clear holding, the Sklars resur­rect their Sklar I argument that the 1993 amendments to IRS §§ 170(f)(8) and 6115 overruled the Court’s holding in Her­nandez that only gifts or contributions may be deducted under § 170. According to the Sklars, the 1993 amendments provide for the deduction of tuition payments for which they receive only intangible religious benefits. We agree with the Tax

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Court that the Sklar’s interpretation of the 1993 amendments is misguided.
[4] Amended § 170(f)(8) requires the taxpayer to “substan-tiate[ ] the contribution by a contemporaneous written acknowledgment of the contribution by the donee organiza­tion.” I.R.C. § 170(f)(8)(A). This acknowledgment must include an estimate of the value of any goods or services the donor received in exchange, “or, if such goods or services consist solely of intangible religious benefits, a statement to that effect.” I.R.C. § 170(f)(8)(B)(iii). The amendment also defines an “intangible religious benefit” as one “which is pro­vided by an organization organized exclusively for religious purposes and which generally is not sold in a commercial transaction outside the donative context.” Id. As the Tax Court correctly held, Sklar, 125 T.C. at 296-97, and as we have previously suggested, Sklar I, 282 F.3d at 613, this amendment creates an exception only to the new substantia­tion requirement created by § 170(f)(8)(A).9 Nothing in the amendment’s language suggests that Congress intended to expand the types of payments that are deductible contribu­tions. As the Sklar I panel explained:
9Although the Sklars rely on the new substantiation requirement as sup­port for their deduction of tuition payments, they did not fully comply with the requirement themselves. Section 170(f)(8)(C) requires that sub­stantiation be provided by the earlier of (1) the date on which the return is filed or (2) the due date for filing the return. However, the Sklars did not submit the required supporting documentation until November 1997. The IRS argues that this untimely substantiation should serve as an abso­lute bar to the Sklars’ claimed deductions. However, some of the Sklars’ deductions, such as payments for Mishna classes, were not subject to the substantiation requirement because they fell below the $250 threshold described in section 170(f)(8). “Separate contributions of less than $250 are not subject to the requirements of section 170(f)(8), regardless of whether [they sum up to] $250 or more.” 26 C.F.R. § 1.170A-13(f)(1) (as amended in 1996). Because we conclude that no part of the Sklars’ pay­ments were deductible, we need not reach the issue.

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Given the clear holding of Hernandez and the absence of any direct evidence of Congressional intent to overrule the Supreme Court on this issue, we would be extremely reluctant to read an addi­tional and significant substantive deduction into the statute based on what are clearly procedural provi­sions regarding the documentation of tax return information, particularly where the deduction would be of doubtful constitutional validity.

Id.

[5] The second pertinent 1993 amendment requires donee organizations to disclose limitations on the deductibility of certain quid pro quo payments to the donors of such pay­ments. See I.R.C. § 6115. Amended § 6115(a) requires any organization that “receives a quid pro quo contribution in excess of $75” to provide the donor with a written statement declaring that the deductible portion of the contribution can­not include “the value of the goods or services provided by the organization,” along with “a good faith estimate of the value of such goods or services.” However, § 6115(b) explains:
For purposes of this section, the term “quid pro quo contribution” means a payment made partly as a con­tribution and partly in consideration for goods or ser­vices provided to the payor by the donee organization. A quid pro quo contribution does not include any payment made to an organization, orga­nized exclusively for religious purposes, in return for which the taxpayer receives solely an intangible reli­gious benefit that generally is not sold in a commer­cial transaction outside the donative context.
I.R.C. § 6115(b) (emphasis added). The Sklars read the exemption from the disclosure requirement for organizations organized exclusively for religious purposes which provide

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solely an intangible religious benefit completely out of con­text. The Sklar I panel explained why the Sklars’ reading of the exemption is unsupportable:
[Section] 6115 requires that tax-exempt organiza­tions inform taxpayer-donors that they will receive a tax deduction only for the amount of their donation above the value of any goods or services received in return for the donation and requires donee organiza­tions to give donors an estimate of this value, exempting from this estimate requirement contribu­tions for which solely intangible religious benefits are received.
282 F.3d at 613.
Nor does the legislative history of these amendments even mention Hernandez, and the House Report specifically states that, although the new requirements apply only to quid pro quo contributions for commercial benefits, “[n]o inference is intended . . . [regarding] whether or not any contribution out­side the scope of the bill’s substantiation or reporting require­ments is deductible (in full or in part) under the present-law requirements of section 170.” H.R. Rep. No. 103-111, at 786 n.170 (1993), reprinted in 1993 U.S.C.C.A.N. 378, 1017 n.170. Thus, the House Report confirms that Congress intended to preserve the status quo ante, and hardly serves as support for the Sklars’ argument.10
10In light of certain well-established deductible payments to religious organizations in exchange for intangible religious benefits, such as pew rents and church dues, see Hernandez, 490 U.S. at 701-02, it seems plausi­ble that Congress contemplated these sorts of contributions in amending §§ 170(f)(8) and 6115 in a manner that did not impose the arduous task of valuing the intangible religious benefits, such as the ability to partici­pate in religious celebrations, that donors receive in exchange for these contributions.

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[6] To put to rest the Sklars’ statutory claim, we now hold that neither the plain language of the 1993 amendments nor the accompanying legislative history indicates any substantive change to Hernandez’s holding that payment for religious education to religious organizations is not deductible. We agree with the observation of both the Tax Court and the Sklar I panel that had Congress intended to overrule judicial precedent and to provide charitable contributions for tuition and fee payments to religious organizations that provide reli­gious education, it would have expressed its intention more clearly. See 282 F.3d at 613; 125 T.C. at 296-97.
2. The Tuition Payments Were Not “Dual Payment” Contributions
[7] The Tax Court correctly concluded that no part of the Sklar’s tuition payments is deductible under a “dual payment” analysis. See Sklar, 125 T.C. at 290-94, 299-300. In American Bar Endowment, the Supreme Court considered the question of the extent to which payments to organizations that bear the “dual character” of a purchase and a contribution are deduct­ible under § 170. 477 U.S. at 116-18. IRS Revenue Ruling 67-246 had set forth a two-part test for determining the extent to which such payments are deductible:
First, the payment is deductible only if and to the extent it exceeds the market value of the benefit received. Second, the excess payment must be “made with the intention of making a gift.”
Id. at 117 (quoting Rev. Rul. 67-246, 1967-2 Cum. Bull. 104, 105 (1967)). The Court held that Revenue Ruling 67-246 embodied the proper standard, reasoning: “The sine qua non of a charitable contribution is a transfer of money or property without adequate consideration. The taxpayer, therefore, must at a minimum demonstrate that he purposely contributed money or property in excess of the value of any benefit he received in return.” Id. at 118.

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In American Bar Endowment, taxpayer members of a chari­table organization sought to deduct under § 170 refunds from insurance policies negotiated and purchased on their behalf by the charitable organization, which they donated to the organi­zation. See id. at 106-09, 116-18. They claimed that the pre­miums paid for the insurance, part of which was subsequently refunded due to the “experience rating” of the policies, were dual payments. Id. The Supreme Court held that the taxpayer members met neither prong of the two-part test for deductibil-ity of dual payments. Stating that the “most logical test of the value of the insurance [the benefit received in return for their payment] is the cost of similar policies,” the Court held that because three of the four taxpayers “failed to demonstrate that they could have purchased similar policies for a lower cost,” they failed to demonstrate that their payment exceeded the market value of the benefit received. Id. at 118. Because the fourth taxpayer, who did prove that there was a comparable insurance program at a lower premium rate for which he was eligible, failed to demonstrate that he knew about the avail­able lower premium during the tax years at issue, the Court held that he failed the second prong of the test—“that he intentionally gave away more than he received.” Id.
[8] The Sklars again have failed to meet their burden of sat­isfying either prong of the two-part test for a dual payment, and we seriously doubt that they could ever make the showing that would support a “dual payment” deduction for tuition for combined religious and secular education.11 In Sklar I, the panel concluded that the Sklars failed to satisfy the require­ments for partial deductibility of their tuition payments. Our analysis has not changed, despite the Sklars’ effort to intro­duce evidence as to market value.
11Indeed, the Tax Court expressed skepticism as to whether a dual pay­ment analysis would ever be appropriate in this context. See 125 T.C. at 293 (“[M]ore fundamentally, the record speaks to whether a dual pay­ments analysis applies in this case at all.”).

16362

Sklar

[9] First, the Sklar I panel reasoned that the Sklars “failed to show that they intended to make a gift by contributing any such ‘excess payment.’ ” 282 F.3d at 621. In fact, the Sklars have never even argued—not in Sklar I, not before the Tax Court and not before us—that they intended to make a gift as a portion of their tuition payment. Indeed, the record is to the contrary. In their brief, the Sklars explain at length that they pay the tuition and fees to send their children to Orthodox Jewish schools because it is a religious imperative of Ortho­dox Judaism. They “sent their children to Yeshiva Rav Isac-sohn and Emek in 1995 because of their sincerely and deeply held religious belief that as Jews they have a religious obliga­tion to provide their children with an Orthodox Jewish educa­tion in an Orthodox Jewish environment.” Because they paid for religious education out of their own deeply held religious views, and because the record demonstrates that throughout the school day—during recess, lunch and secular, as well as religious, classes—the schools inculcate their children with their religion’s lifestyle, heritage, and values, the Sklars have actually demonstrated the absence of the requisite charitable intent.
Second, the Sklar I panel reasoned that “the Sklars have not shown that any dual tuition payments they may have made exceeded the market value of the secular education their chil­dren received.” Id. The panel stated that the Sklars needed to present evidence that their total payments exceeded “[t]he market value [of] the cost of a comparable secular education offered by private schools.” Id. Before the Tax Court, the Sklars introduced expert testimony asserting that “Catholic schools are the most reasonable comparison benchmarks for the schools attended by the Sklar children.” Based on his esti­mation of tuition paid for Archdiocesan Catholic schools12 in
12The flaws in the expert report itself are too numerous to mention, but we point out only one: the archdiocesan schools are subsidized in large measure by the parishes in the Archdiocese in order to force down the costs of education and to afford all Catholic children the opportunity to attend Catholic schools. Thus, by choosing archdiocesan schools as the basis for his comparative market value, the Sklars’ expert guaranteed that the tuition and fees paid to the Sklars’ schools would greatly exceed the tuition at the archdiocesan Catholic schools.

Sklar

16363

Los Angeles County in 1995, the Sklars’ expert concluded that the market value of the secular education the Sklars’ chil­dren received was between $1483 and $1724, such that in 1995 the Sklars made “excess payments” of almost $5000 per child. The Sklars’ expert also included tuition data for other Los Angeles schools in his report. The Tax Court correctly concluded that the evidence in the record indicated: “(1) Some schools charge more tuition than Emek and Yeshiva Rav Isacsohn, and some charge less; and (2) the amount of tuition petitioners paid is unremarkable and is not excessive for the substantial benefit they received in exchange; i.e., an education for their children.” 125 T.C. at 293-94. Before us, the Sklars have failed to demonstrate—or even argue on appeal—that the Tax Court’s factual findings as to the data set forth in their expert’s report are clearly erroneous.
[10] Thus, the Tax Court did not err by concluding that the Sklars failed to show that any part of their tuition fees was a charitable deduction, subject to a dual payment analysis. We conclude that under Hernandez and the Internal Revenue Code, their tuition and fee payments must be treated like any other quid pro quo transaction, even if some part of the bene­fit received was religious in nature. See 490 U.S. at 691-94. We therefore agree with the Tax Court that the Sklars’ tuition is not deductible, in whole or in part, under § 170.
C. The 1993 Closing Agreement Does Not Constitutionally and Administratively Require the IRS To Allow Chari­table Deductions for the Sklars’ Tuition Payments to Religious Schools
The Sklars reassert their Sklar I argument that in light of allegedly similar deductions allowed for members of the Church of Scientology under a closing agreement with the IRS, the disallowance of deductions for Orthodox Jewish reli­gious education violates the Establishment Clause and princi­ples of administrative consistency. They also argue that the Tax Court abused its discretion in denying discovery about

16364

Sklar

the Closing Agreement, including compelling its production.13 Before the Tax Court, the Sklars and the Commissioner “stip­ulated that an agreement dated October 1, 1993, between the Commissioner and the Church of Scientology settled several longstanding issues.” 125 T.C. at 298. A letter the Sklars had received from the IRS was also admitted. It established that the Closing Agreement “allows individuals to claim, as chari­table contributions, 80 percent of the cost of qualified reli­gious services.” Id. The Sklars argued that because of the Closing Agreement, the Commissioner is constitutionally and administratively precluded from disallowing their deductions for school tuition and fees, which they contend are “jurispru-dentially indistinguishable” from the auditing and training provided by the Church of Scientology.
The Tax Court correctly dispatched that argument by citing to Sklar I. See 125 T.C. at 299. There the panel stated that “[w]e seriously doubt that the Sklars are similarly situated to the persons who benefit from the Scientology closing agree­ment because the religious education of the Sklars’ children does not appear to be similar to the ‘auditing’, ‘training’ or other ‘qualified religious services’ conducted by the Church of Scientology.” 282 F.3d at 620; see also id. at 618 n.13. We also conclude that tuition and fee payments to schools that provide secular and religious education as part of one curricu­lum are quite different from payments to organizations that provide exclusively religious services. Because the Sklars are situated differently than members of the Church of Scien­tology, the Tax Court did not abuse its discretion in determin­ing that the Closing Agreement itself was not relevant, and therefore not discoverable in the Sklars’ redetermination pro­ceedings.
13The Sklars made several efforts to obtain the Closing Agreement. The IRS repeatedly objected and sought protective orders on grounds of rele­vance and in reliance on I.R.C. § 6103, which makes confidential certain taxpayer “return information,” including closing agreements. The Tax Court sustained the IRS’s objections, without disclosing its reasoning, and the document was not admitted into evidence.

Sklar

16365

[11] Nor did the Tax Court err in its conclusion that “the agreement reached between the [IRS] and the Church of Scientology does not affect the result in this case,” Sklar v. Comm’r, 125 T.C. at 299, because “the analysis in [American Bar Endowment] controls here.” Id. (internal citation omit­ted). The Sklar I panel previously assumed the contents of the Closing Agreement, with reference to a Wall Street Journal article that purported to reprint the agreement in full. See Sklar I, 282 F.3d at 615; Scientologists and IRS Settle for $12.5 Million, Wall St. J., Dec. 30, 1997, at A12; agreement reprinted in Wall St. J. Interactive Edition (www.wsj.com). The panel also held that the IRS must make the Closing Agreement publicly available.14 282 F.3d at 614-18. The Sklar I panel further presumed from the IRS’s failure to disclose that the terms of the Closing Agreement were as set forth in the Wall Street Journal article, and concluded that the Closing Agreement constitutes an unconstitutional denominational preference. Id. at 619. We cannot improve upon the original panel majority’s elucidation of the principles at stake:
Applying [Larson v. Valente, 456 U.S. at 246-47,] to the policy of the IRS towards the Church of Scien­tology, the initial inquiry must be whether the policy facially discriminates amongst religions. Clearly it does, as this tax deduction is available only to mem­bers of the Church of Scientology.
14In Sklar I, we held that closing agreements “constitute, at least in part, information required to be disclosed under § 6104,” 282 F.3d at 615 n.7, and that “in appropriate circumstances, disclosure may be required under § 6104 or otherwise,” id. at 616. Section 6104 of the Code compels certain 501(c) and 501(d) organizations to disclose any documents submitted in support of an application for exemption. However, § 6103 prohibits the disclosure of closing agreements and other confidential “return informa­tion.” Id. Considering the interaction of the two sections, we held that “§ 6103 does not categorically prohibit the disclosure of closing agree­ments,” but on the contrary “the disclosure prohibitions of § 6103 are sub­ject to the mandatory disclosure requirements of § 6104.” Id. Our holding in Sklar I is binding here, although we do not decide the extent to which the Closing Agreement might be discoverable in an appropriate forum.

16366

Sklar

The second Larson inquiry is whether or not the facially discriminatory policy is justified by a com­pelling governmental interest. 456 U.S. at 246-47, 102 S. Ct. 1673. Although the IRS does not concede that it is engaging in a denominational preference, it asserts in its brief that the terms of the settlement agreement cannot be used as a basis to find an Estab­lishment Clause violation because “in order to settle a case, both parties are required to make compro­mises with respect to points on which they believe they are legally correct.” This is the only interest that the IRS proffers for the alleged policy. Although it appears to be true that the IRS has engaged in this particular preference in the interest of settling a long and litigious tax dispute with the Church of Scien­tology, and as compelling as this interest might oth­erwise be, it does not rise to the level that would pass strict scrutiny. The benefits of settling a controversy with one religious organization can hardly outweigh the costs of engaging in a religious preference. Even aside from the constitutional considerations, a con­trary rule would create a procedure by which any denomination seeking a denominational preference could bypass Congressional law-making and IRS rulemaking by engaging in voluminous tax litigation. Such a procedure would likely encourage the prolif­eration of such litigation, not reduce it. Larson, 456 U.S. at 248, 102 S. Ct. 1673 (holding that even assuming arguendo that the government has a com­pelling governmental interest for a denominational preference, it must show that the rule is “closely fit­ted to further the interest that it assertedly serves”). Because the facial preference for the Church of Scientology embodied in the IRS’s policy regarding its members cannot be justified by a compelling gov­ernmental interest, we would, if required to decide the case on the ground urged by the Sklars, first determine that the IRS policy constitutes an uncon-

Sklar

16367

stitutional denominational preference under Larson, 456 U.S. at 230, 102 S. Ct. 1673.
282 F.3d at 618-19 (footnote omitted). However, the Sklar I panel declined to follow the Sklars’ suggestion that they, too, are entitled to an unconstitutional denominational preference for three reasons:
First, we would be reluctant ever to presume that Congress or any agency of the government would intend that a general religious preference be adopted, by extension or otherwise, as such preferences raise the highly sensitive issue of state sponsorship of reli­gion. In the absence of a clear expression of such intent, we would be unlikely to consider extending a policy favoring one religion where the effect of our action would be to create a policy favoring all. Sec­ond, the Supreme Court has previously stated that a policy such as the Sklars wish us to create would be of questionable constitutional validity under Lemon, because the administration of the policy could require excessive government entanglement with religion. Hernandez, 490 U.S. at 694, 109 S. Ct. 2136; see Lemon, 403 U.S. at 612-13, 91 S. Ct. 2105. Third, the policy the Sklars seek would appear to violate section § 170. See Hernandez, 490 U.S. at 692-93, 109 S. Ct. 2136.
Id. at 619-20.
The Sklar I panel also rejected the Sklars’ administrative inconsistency claim on two grounds:
First, in order to make an administrative inconsis­tency claim, a party must show that it is similarly sit­uated to the group being treated differently by the agency. United States v. Kaiser, 363 U.S. 299, 308 [(1960)]. We seriously doubt that the Sklars are sim-

16368

Sklar

ilarly situated to the persons who benefit from the Scientology closing agreement because the religious education of the Sklars’ children does not appear to be similar to the “auditing”, “training” or other “qualified religious services” conducted by the Church of Scientology. Second, even if they were so situated, because the treatment they seek is of ques­tionable statutory and constitutional validity under § 170 of the IRC, under Lemon, and under Her­nandez, we would not hold that the unlawful policy set forth in the closing agreement must be extended to all religious organizations.
Id. at 620 (citation omitted).
[12] These principles are as correct today as they were six years ago. We adopt the full force of the conclusions they dic­tate. To conclude otherwise would be tantamount to rewriting the Tax Code, disregarding Supreme Court precedent, only to reach a conclusion directly at odds with the Establishment Clause—all in the name of the Establishment Clause. The principle the Sklars advance does not stop with them and their 1995 taxes; its logic would extend to all members of religious organizations who benefit from educational services that are in whole or part religious in nature. The Tax Court correctly held that neither the Establishment Clause nor principles of administrative consistency allow the Sklars the deductions they seek, and the Tax Court’s denial of discovery regarding the Closing Agreement in proceedings involving the deduct-ibility of the Sklars’ tuition and fees was not an abuse of dis­cretion.
CONCLUSION
The Tax Court correctly affirmed the IRS’s disallowance of deductions the Sklars claimed for tuition and fees paid to their children’s Orthodox Jewish day schools. The decision of the Tax Court is AFFIRMED.

President-elect Barack Obama’s invitation of the homophobic hatemonger Pastor Rick Warren to give the inaugural invocation has naturally generated a lot of controversy.    Other than Fred Phelps, it’s hard to imagine a worst possible choice.   On a day when the nation is supposed to be united, why choose a bigot who wants to deny millions of gay and lesbian Americans their fundamental human and civil rights?  Rick Warren may be as popular as the many others before him who preached hate but he certainly does not deserve the honor of being invited to give the inaugural invocation.   In the 1930s, Father Charles Coughlin also enjoyed popular support but, as far as I know, he was never invited to give the inaugural invocation.    Inviting someone like Rick Warren is just as bad, if not worse, as inviting someone like Fred Phelps or Charles Coughlin.

But all the criticism of the invitation extended to Rick Warren misses the most important thing:  the inaugural invocation or prayer is an unconstitutional tradition that must be abolished as it has no legitimate place whatsoever in a ceremony in which the head of a modern secular state takes office.

In an important ruling last month, a California appeals court affirmed the legal right of children to be educated by qualified and credentialed educators.

The ruling summarized the background of the case:

A Welfare and Institutions Code section 300 petition was filed on behalf of three minor children after the eldest of them reported physical and emotional mistreatment by the children’s father. The Los Angeles County
Department of Children and Family Services investigated the situation and discovered, among other things, that all eight of the children in thefamily had been home schooled by the mother rather than educated in a public or private school.The attorney representing the younger two children asked the juvenile court to order that the children be enrolled in a public or private school. The dependency court declined to make such an order despite the court’s opinion that the home schooling the children were receiving was “lousy,” “meager,” and “bad,” and despite the court’s opinion that keeping the children at home deprived them of situations where (1) they could interact with people outside the family, (2) there are people who could provide help if something is amiss in the children’s lives, and (3) they could develop emotionally in a broader world than the parents’ “cloistered” setting.

As noted above, the court ruled that the parents have a constitutional right to home school the children. From that ruling the attorney for the younger children seeks extraordinary writ relief.

While I agree that parents have the right to home school their children, I don’t believe that they have the right to deny their children the right to an education by qualified and credentialed educators. Those who want to educate their children at home should either be qualified and credentialed educators themselves or hire such people to teach their children. Similarly, parents of sick children have the right to care for their children at home. However, when a child needs medical care, they should summon a qualified and credentialed medical professional and not attempt to provide such care themselves unless they have the professional training and credentials to do so. I don’t think anyone would seriously argue that parents with no medical training or credentials have the right to perform appendectomies or other surgery on their children yet when it comes to education, many people in our society seem to have little concern for the significant and long-term harm to children that can result when they are denied the right to a quality education that meets basic standards.

Fortunately, in this case, the Second District Court of Appeal agreed that children’s rights and California law cannot be infringed by parents who claim that that the right to home school their children exempts them from compliance with the law and gives them the right to deprive their children of a legal education.

This ruling will undoubtedly be appealed to the California Supreme Court. I certainly hope it is upheld and will be following it closely.

Text of the ruling:

Filed 2/28/08
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re RACHEL L. et al., Persons Coming
Under the Juvenile Court Law.
B192878
JONATHAN L. and MARY GRACE L.,
Petitioners,
v.
SUPERIOR COURT OF THE STATE OF
CALIFORNIA FOR THE COUNTY OF
LOS ANGELES,
Respondent;
___________________________________
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Real Party in Interest.
(Los Angeles County
Super. Ct. No. JD00773)
ORIGINAL PROCEEDINGS in mandate. Stephen Marpet, Temporary Judge.
(Pursuant to Cal. Const., art. VI, § 21.) Writ granted.
Children’s Law Center of Los Angeles, Cameryn Schmidt and
Christine Caldwell, for Petitioners.
No appearance for Respondent.
2
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel
and Judith A. Luby, for Real Party in Interest.
___________________________________________
3

In this dependency case (Welf. & Inst. Code, § 300), we consider the question whether parents can legally “home school” their children. The
attorney for two of the three minor children in the case has petitioned this court for extraordinary writ relief, asking us to direct the juvenile
court to order that the children be enrolled in a public or private school, and actually attend such a school.

The trial court’s reason for declining to order public or private schooling for the children was its belief that parents have a constitutional right
to school their children in their own home. However, California courts have held that under provisions in the Education Code, parents do not have a
constitutional right to home school their children. Thus, while the petition for extraordinary writ asserts that the trial court’s refusal to order
attendance in a public or private school was an abuse of discretion, we find the refusal was actually an error of law. It is clear to us that
enrollment and attendance in a public full-time day school is required by California law for minor children unless (1) the child is enrolled in a
private full-time day school and actually attends that private school, (2) the child is tutored by a person holding a valid state teaching credential
for the grade being taught, or (3) one of the other few statutory exemptions to compulsory public school attendance (Ed. Code, § 48220 et seq.)
applies to the child. Because the parents in this case have not demonstrated that any of these exemptions apply to their children, we will grant the
petition for extraordinary writ.

BACKGROUND OF THE CASE

A Welfare and Institutions Code section 300 petition was filed on behalf of three minor children after the eldest of them reported physical and
emotional mistreatment by

4

the children’s father. The Los Angeles County Department of Children and Family Services investigated the situation and discovered, among other
things, that all eight of the children in the family had been home schooled by the mother rather than educated in a public or private school.1 The
attorney representing the younger two children asked the juvenile court to order that the children be enrolled in a public or private school. The
dependency court declined to make such an order despite the court’s opinion that the home schooling the children were receiving was “lousy,”
“meager,” and “bad,” and despite the court’s opinion that keeping the children at home deprived them of situations where (1) they could interact with
people outside the family, (2) there are people who could provide help if something is amiss in the children’s lives, and (3) they could develop
emotionally in a broader world than the parents’ “cloistered” setting. As noted above, the court ruled that the parents have a constitutional right
to home school the children. From that ruling the attorney for the younger children seeks extraordinary writ relief.

DISCUSSION

1. California’s Provisions for Compulsory Education of Minor Children Article IX, section 1 of California’s Constitution states: “A general diffusion
of knowledge and intelligence being essential to the preservation of the rights and liberties 1 Over the years, the parents of the children have
given various reasons for not sending the children to school. Although previously they stated they do not believe in the policies of the public
school system, more recently they have asserted that they home school because of their religious beliefs. The father also recently opined that
educating children outside the home exposes them to “snitches.”

5

of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.”
“In obedience to the constitutional mandate to bring about a general diffusion of knowledge and intelligence, the Legislature, over the years,
enacted a series of laws. A primary purpose of the educational system is to train school children in good citizenship, patriotism and loyalty to the
state and the nation as a means of protecting the public welfare. [Citation.] The Supreme Court of the United States, in the case of Pierce v.
Society of Sisters, 268 U.S. 510 [45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468], held that: ‘No question is raised concerning the power of the state
reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age
attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good
citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.’ [¶] Included in the laws governing the
educational program were those regulating the attendance of children at school and the power of the state to enforce compulsory education of children
within the state at some school is beyond question. (Meyer v. Nebraska, 262 U.S. 390 [43 S.Ct. 625, 628, 67 L.Ed. 1042, 29 A.L.R. 1446]; Ex parte
Liddell, 93 Cal. 633, 640 [29 P. 251].” (In re Shinn (1961) 195 Cal.App.2d 683, 686-687.)

Full-time public school education for persons between the ages of six and eighteen is compulsory under California’s compulsory education law (Ed.
Code,

6

§ 48200 et seq.),2 “and each parent, guardian, or other person having control or charge of the pupil shall send the pupil to the public full-time day
school . . . and for the full time designated as the length of the schoolday by the governing board of the school district” (§ 48200). Exemptions to
compulsory public school education are made for, among others, children who (1) attend a private full-time day school (§ 48222) or (2) are instructed
by a tutor who holds a valid state teaching credential for the grade being taught (§ 48224). These provisions of the Education Code (in their
predecessor section numbers) were held to be constitutional in People v. Turner (1953) 121 Cal.App.2d Supp. 861, 865 et seq., (“Turner”), and an
appeal to the United States Supreme Court from that decision was dismissed for want of a substantial federal question in Turner v. People of the
State of California (1954) 347 U.S. 972 [98 L.Ed. 1112, 74 S.Ct. 785]. Turner was cited with approval in In re Shinn, supra, 195 Cal.App.2d at p. 694
(“Shinn”).

In Shinn, children were found to be habitually truant and were made wards of the juvenile court because their parents violated the compulsory
education laws in effect at that time. The laws were former sections 12101, 12154, and 12155, which were predecessors to current sections 48200,
48222, and 48224, respectively. (Shinn, supra, 195 Cal.App.2d at pp. 687, 693-694.)

In Turner, the court affirmed a judgment of conviction of parents who refused to send their children to public school and instead provided them with
instruction that did

2 Unless otherwise indicated, all references herein to statutes are to the Education Code.

7

not come within the exemptions to the compulsory public school education law. The appellant parents were convicted of violating former section 16601,
a predecessor to current section 48200. Former sections 16624, and 16625 provided exemptions for children attending private full-time day school and
children being educated by a person holding a valid teaching credential, but the parents did not make use of the exemptions. (Turner, supra, 121
Cal.App.2d Supp. at pp. 863-864.)

The parents in Turner contended that former section 16601 was unconstitutional because it deprived them of a right to determine how and where their
children should be educated. Citing Pierce v. Society of Sisters (1925) 268 U.S. 510 [69 L.Ed. 1070, 45 S.Ct. 571], the Turner court stated the
statute would be unconstitutional if it required parents to place their children in public schools and had no alternative means of education, but the
court noted that former section 16601 permitted such alternative means and therefore was not unconstitutional. The court specifically rejected the
argument that it is unconstitutional to require that parents possess the qualifications prescribed by statute if the parents seek to act as their
children’s teachers, saying that nothing in the Pierce opinion declared or intimated such a finding of unconstitutionality. (Turner, supra, 121
Cal.App.2d Supp. at p. 865.)

The Turner court observed that there are “many cases dealing with statutes of this character,” and specifically referred to State v. Hoyt (1929) 84
N.H. 38 [146 A. 170], where the Supreme Court of New Hampshire held constitutional a statute requiring children to be educated in either a public
school or an approved private school, and rejected the argument that the federal guarantee of liberty permits parents to

8

resist such state statutes by having their children educated in their own home by the parents themselves or a private tutor. (State v. Hoyt, supra,
146 A. at p. 171; Turner, supra, 121 Cal.App.2d Supp. at pp. 865-867.) The Turner court observed that the court in Hoyt stated it would be an
unreasonable burden on the state to have to supervise each and every home in which a child was being educated. (Turner, at pp. 866-867.) The Turner
court further observed it could find no cases in which a court has held that a state’s failure to permit home instruction as an alternative to public
school education is unconstitutional. (Id. at p. 867.)

Turner also held that the subject former statutes were neither arbitrary nor unreasonable when they required that teachers in private full-time day
schools only be “persons capable of teaching” and did not have to hold a valid teaching credential for the grade being taught, but did require that a
home tutor hold such a credential. The court observed that whereas it is unreasonably difficult and expensive for a state to supervise parents who
instruct children in their homes, supervising teachers in organized private schools is less difficult and expensive. (Turner, supra, 121 Cal.App.2d
Supp. at p. 867.) Moreover, it would not be unreasonable for the Legislature to conclude that teachers in private schools would be directly
supervised by the persons who run the schools, and such persons would have an interest in maintaining the required standard of instruction by
competent teachers so that the schools would continue to qualify for the private full-time day school exemption. (Id. at pp. 867-868.)

9

Additionally, the Turner court rejected, and noted that courts in other states had also rejected, the notion that parents instructing their children
at home come within the private full-time day school exemption in then-section 16624 (now section 48222). The court stated that a simple reading of
the statutes governing private schools and home instruction by private tutors shows the Legislature intended to distinguish the two, for if a private
school includes a parent or private tutor instructing a child at home, there would be no purpose in writing separate legislation for private
instruction at home. (Turner, supra, 121 Cal.App.2d Supp. at p. 868; accord Shinn, supra, 195 Cal.App.2d at p. 693.) Moreover, even if being taught
at a parent’s home could be construed as attendance at a private day school, the parents in Turner had not demonstrated that their home already
qualified as a private school under the requirements of the Education Code. (Turner, at p. 869.)

Nor was the Turner court persuaded by the parents’ contention that the education being provided to their children in their home was as good or better
than the children would have obtained in a public or private school or through a credentialed tutor, and therefore the purpose of the statutes was
satisfied. The court stated California’s legislative scheme makes no such exemption to attendance in a public school. (Turner, supra, 121 Cal.App.2d
Supp. at p. 868-869; accord Shinn, supra, 195 Cal.App.2d, at p. 694, where the court stated that “[h]ome education, regardless of its worth, is not
the legal equivalent of attendance in school in the absence of instruction by qualified private tutors.”)

10

Turner was cited with approval in Board of Education v. Allen (1968) 392 U.S. 236 [20 L.Ed.2d 1060, 88 S.Ct. 1923] (“Allen”). There, the Supreme
Court stated: “Since Pierce [v. Society of Sisters was decided], a substantial body of case law has confirmed the power of the States to insist that
attendance at private schools, if it is to satisfy state compulsory-attendance laws, be at institutions which provide minimum hours of instruction,
employ teachers of specified training, and cover prescribed subjects of instruction. Indeed, the State’s interest in assuring that these standards
are being met has been considered a sufficient reason for refusing to accept instruction at home as compliance with compulsory education statutes.
These cases were a sensible corollary of Pierce v. Society of Sisters: if the State must satisfy its interest in secular education through the
instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function.” (Id., 392
U.S. at pp. 245-247, fns. omitted.) The Allen court cited Turner as a case in which home instruction was rejected as a means of complying with a
state’s compulsory education laws. (Id. at p. 247, fn. 8.) Moreover, as noted above, the appeal to the United States Supreme Court by the parents in
Turner was dismissed for want of a substantial federal question.3

3 In the instant case, the parents’ citation to Cassady v. Signorelli (1996) 49 Cal.App.4th 55 provides them with no support for their assertion of a
right to home school their children with the mother providing the educational instruction. Cassady is a family law case involving the question
whether the trial court abused its discretion when it ordered that a minor child must attend a public or private school rather than be home schooled.
Although the reviewing court stated that “a parent might normally have the right to provide home schooling, private schooling, or government
schooling to

11

The Legislature has not amended the substantive aspects of the compulsory education statutes that were analyzed in Turner and Shinn. Like those
courts, we find no reason to strike down the Legislature’s evaluation of what constitutes an adequate education scheme sufficient to promote the
“general diffusion of knowledge and intelligence,” which Article IX, section 1 of our Constitution states is “essential to the preservation of the
rights and liberties of the people.” We agree with the Shinn court’s statement that “the educational program of the State of California was designed
to promote the general welfare of all the people and was not designed to accommodate the personal ideas of any individual in the field of education.”
(Shinn, supra, 195 Cal.App.2d at p. 697.)

2. Consequences of Parental Denial of a Legal Education Because parents have a legal duty to see to their children’s schooling within the provisions
of these laws, parents who fail to do so may be subject to a criminal complaint against them, found guilty of an infraction, and subject to
imposition of fines or an order to complete a parent education and counseling program. (§§ 48291 & 48293.) Additionally, the parents are subject
to being ordered to enroll their children in an appropriate school or education program and provide proof of enrollment to the court, and willful
failure to comply with such an order may be punished by a fine for civil contempt. (§ 48293.)

a child,” the court did not address the requirements of the Education Code, nor the excellent treatment of California’s public compulsory education
law found in Shinn and Turner. The court simply ruled that based on the facts of the case, it was not an abuse its discretion to order that the child
not be home schooled.

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Jurisdiction over such parental infractions may be assigned to juvenile court judges. (§ 48295; Welf. & Inst. Code, § 601.4.) Further, under
section 361, subdivision (a) of the Welfare and Institutions Code, the juvenile court has authority to limit a parent’s control over a dependent
child, including a parent’s right to make educational decisions for a child, so long as the limitations do not exceed what is necessary to protect
the child; and under section 362, subdivision (d) of that code, the juvenile court may make reasonable orders directed at the parents to ensure that
the child regularly attends school. An order directing a child’s regular attendance at school in compliance with the Education Code’s provisions for
compulsory education is a protection against the child being adjudged a habitual truant, while it also recognizes the child’s rights under
California’s compulsory public education law.

3. Analysis of the Education Issues in the Instant Case

The parents in this case assert that when the mother gives the children educational instruction at home, the parents are acting within the law
because mother operates through Sunland Christian School where the children are “enrolled.”4 However, the parents have not demonstrated that mother
has a teaching credential such that the children can be said to be receiving an education from a credentialed tutor. It is clear that the education
of the children at their home, whatever the quality of that 4 In support of the parents’ home schooling, Terry Neven, Sunland Christian School’s
administrator, submitted a letter in which he stated the school is a private school and the two younger children are enrolled there. The letter fails
to mention that the children do not actually receive education instruction at the school.

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education, does not qualify for the private full-time day school or credentialed tutor exemptions from compulsory education in a public full-time day
school. The parents are not aided by a letter from the Lynwood Unified School District stating that Sunland Christian School “appeared to be a valid
charter school.” Aside from the fact that Sunland Christian School cannot be a charter school unless it is, among other things, part of California’s
public school system and nonsectarian,5 the parents present no authority to the effect that a charter school can excuse the statutory requirement
that tutors be credentialed if their students are to come within the tutor exemption to compulsory public school education.

Likewise, an affidavit of Sunland Christian School administrator Terry Neven provides no authority for the parents’ home schooling. In the affidavit,
Neven talks at length about “independent study” programs, including his school’s independent study program. He does not mention any Education Code
section that provides for parents teaching their children by “independent study” through private schools. Section 51745 et seq. provides for
independent study for students, through a school district or a county office of education; however, its purpose is to provide students with certain
educational opportunities, such as education during travel, or individualized 5 Charter schools are part of, and are under the jurisdiction of,
California’s public school system. (§ 47615; Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125, 1137 et seq.) They must be nonsectarian in
their programs and all other operations, they cannot charge tuition, and they cannot be conversions from private schools. (§§ 47605, subd. (d)(1)
& 47602, subd. (b); Wilson, at p. 1131.) Their teachers must be credentialed as teachers in other public schools would be required to be
credentialed. (§ 47605, subd. (l); Wilson, at p. 1137.)

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study in an area of interest or subject not currently available in the regular school curriculum. Clearly, section 51745 does not apply to mother’s
home schooling of the children.

Nor is there importance to Mr. Neven’s statement, in a letter to the Lynwood Unified School District, that Sunland Christian School “has been
evaluated by both Los Angeles Unified School District and the Los Angeles County Office of Education to be in compliance with state laws.”6 Such
representation does not constitute a statement that the Los Angeles Unified School District and the Los Angeles County Office of Education knowingly
gave their stamp of approval to children being deprived of an education in a public or private full-time day school setting, or by a credentialed
tutor, through the ruse of enrolling them in a private school and then letting them stay home and be taught by a non-credentialed parent.

Although Mr. Neven reported to the Lynwood Unified School District that he makes visits to the parents’ home about four times a year, and although
some of the children in the family reported to the Department of Children and Family Services social worker that they were given tests at the end of
some school years and they took the tests at the Sunland Christian School, the fact remains that the children are taught at home by a
non-credentialed person. Moreover, the very language of section 48222 is an implicit rejection of the parents’ position that having someone from
Sunland Christian 6 Both the Lynwood and the Los Angeles school districts are mentioned in Mr. Neven’s letter because the children live in one school
district, and the Sunland Christian School is in the other school district. 15

School monitor mother’s instruction of the children is sufficient. Section 48222 provides an exemption from compulsory public school education for
“[c]hildren who are being instructed in a private full-time day school.” (Italics added.) It is the language of the statutes that constitutes
California’s plan for education of its children. Thus, under California’s compulsory public school education law, Mr. Neven’s occasional observation
of mother’s instruction of the children and their occasional taking of tests at the private school is without legal significance. Lastly, we address
the parents’ claim that they home school their children because of religious beliefs. We recognize that “a State’s interest in universal education .
. . is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the
Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so
long as they . . . ‘prepare [them] for additional obligations.’ ” (Wisconsin v. Yoder (1972) 406 U.S. 205, 214 [32 L.Ed.2d 15, 92 S.Ct. 1526]
(Yoder).) The parents cite Yoder as a basis for their contention that their religious beliefs entitle them to refuse to send their children to
school. Yoder involved children whose parents’ religion (Amish) accepted education given outside of the home for grades one through eight but
mandated that children not continue their education in a public or private school past the eighth grade. The Yoder court rejected the notion that
parents have a universal right to refuse to obey a state’s compulsory education law. The court recognized that “allowing every person to make his own
standards on matters of conduct in which society as a whole has important

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interests” is precluded by “the very concept of ordered liberty,” and thus, “if the Amish asserted their claims because of their subjective
evaluation and rejection of the contemporary secular values accepted by the majority, . . . their claims would not rest on a religious basis” but
rather would be philosophical and personal. (Yoder, supra, 406 U.S. at pp. 215-216.) However, from the testimonial evidence of scholars on the
subjects of religion and education, the court found that the Amish traditional way of life does not rest on personal preferences but rather on “deep
religious conviction, shared by an organized group, and intimately related to daily living” (id. at p. 216), and the Amish religious beliefs and
style of living are centuries old (id. at p. 217). “Old Order Amish communities today are characterized by a fundamental belief that salvation
requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values
is central to their faith.” (Id. at p. 210.) Testimony showed that not only were the values taught in high schools contrary to those of the Amish
religion, but attendance at high school takes Amish children away from their community during the period of their lives when they are to acquire
Amish attitudes and integrate into the Amish religious community. The Yoder court observed that Amish children receive an informal vocational
education in their own communities after graduation from eighth grade that prepares them to be productive members of the Amish community. (Id. at pp.
211-212, 222.) Moreover, one of the witnesses testified that compulsory high school education for Amish children would “ultimately result in the
destruction of the Old Order Amish church community as it exists in the United States today.” (Id. at p. 212.)

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The parents in the instant case have asserted in a declaration that it is because of their “sincerely held religious beliefs” that they home school
their children and those religious beliefs “are based on Biblical teachings and principles.” Even if the parents’ declaration had been signed under
penalty of perjury, which it was not, those assertions are not the quality of evidence that permits us to say that application of California’s
compulsory public school education law to them violates their First Amendment rights. Their statements are conclusional, not factually specific.
Moreover, such sparse representations are too easily asserted by any parent who wishes to home school his or her child.

4. Remand for Further Proceedings

Because the trial court in this case simply ruled that the parents have a constitutional right to home school their children, the court made no
explicit factual findings concerning the parents’ compliance with California’s compulsory public education law. So that findings and legal
conclusions can be made on the record by the trial court, we will remand the case for a hearing on the issue whether the parents have been in
compliance with that law.

The dependency court should exercise the authority, granted to it by Welfare and Institutions Code sections 361, subdivision (a), and 362,
subdivision (d), to order the parents to comply with the Education Code. Upon remand, absent any legal ground for not doing so, the court must order
the parents to (1) enroll their children in a public full-time day school, or a legally qualified private full-time day school and (2) see to it that
the children receive their education in such school. Given the history of this family, 18

which we need not discuss here,7 permitting the parents to educate the children at home by means of a credentialed tutor would likely pose too many
difficulties for the tutor. Further, the court should not permit the children to be enrolled in the Sunland Christian School because that school was
willing to participate in the deprivation of the children’s right to a legal education.

DISPOSITION

The petition for extraordinary writ is granted. Let a writ of mandate issue directing the respondent juvenile court to comply with the views
expressed herein.

CERTIFIED FOR PUBLICATION
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
KITCHING, J.

7 On November 20, 2007, we filed a separate, unpublished opinion for this case that decides consolidated appeals (Nos. B192601 and B195484) filed by
the parents and two of the minor children. Those appeals address matters other than the home schooling issue and our opinion sets out a history of
the family vis-à-vis the dependency court.