done these things and just a ministerial review that that might be determined to be the least restrictive means mean pennsylvania's requirements and that would be probably something closer that's what left in place and that's what other states actions were quite frankly i guess from a  because of your characterization how is it how superior in the business of religion because there is some residual discretion left from reviewing educational sufficiency there's nothing that's says we're to be reviewing religion or we're interesting your religion or anything else are some residual discretion left to talk about educational sufficiency how do you get to the point of saying  truncated in the quarter and what is developing in my career have a different view of the discretionary nature of the decisions that are made by the school board from me from the school board here that is it seems to me that they're within that there is still a requirement that you have to put in a certain amount of time shouldn't have to be told and so therefore they're saying there are discretionary exceptions here and here i gather your discretionary argument goes to what the end of what the individual school district mais may decide to do and applying them and looking at the application or portfolio am i to read anything to them it's to be rendered to god they're not interested in your view of god or no god which is not anything they have any interest in whatsoever they're interested in one thing and one thing only are the kids get an education that they're entitled to by law are supposed to get in the commonwealth of pennsylvania that's undoubtedly what we'll hear from them because it's all over in their briefs so what you say any discretion is a trigger because it it starts invading it causing a substantial burden on religion i guess i'm having a little bit of trouble following the ivory coast from any discretion to substantial burden if i understand you in your briefing right you're saying that it doesn't make any difference what the discretion is geared to it doesn't make a difference that this is an educational statutes about education that's the discretion is are they getting an adequate education because you have religious motivations you i mean your clients in the context of education that motivation that your clients a strictly objective measure into the realm of a subjective determination of whether there's been quote education or unquote or not and that having moved from that realm of the purely objective into the realm of the subjective is in and of itself the trigger for this heightened standard of review now i'm going to misunderstood my mother misunderstood the priest but that's how i understand the argument to be running can you answer that specific argument are they wrong theoretically about that on the law i think that the oral and here's what i mean understood refers is someone who has already actually perform that function and that person that person said put is something that the superintendent is supposed to review also the fundamental would be this big darn it is to determine tell me tell me how bad it's not discretion of the tight mr fair says his the complaining about because that's what i understood when you get up got up was going to be your point that it's really not the kind of discretion that the superintendents duties are spelled out in the statute itself as to what he or she is supposed to consider in looking at these materials the independent directors not somebody is paid by the school district if somebody  other to go outside of the school district and outside of the part of the education to have an independent hearing on examiner and knowing whether the superintendent in fact correctly or incorrectly determined that progress wasn't being independent evaluation stage or at the district supervisor state to pretend stage pretty post stage somebody looking this is going to have to exercise some discretion because not all numbers and test scores and stuff like that is that i think that's say to get you to respond to this it is i take it their argument not that told them that only this state doesn't have an interest in that you can do the sorts of things that involve the state in assuring themselves of an education but that they weren't given the chance to put the state to the burden of proving that they had done it in the least restrictive way and pursuant to a compelling state interest because the court said there's just no substantial burden on religion here at all and that's the that's the point of distinction and i don't want to get lost on the mean understand your briefing and some of your so far are moving toward hey we need to do this are still has to be done somebody has got to look at this there's an interest in doing that but i take their argument not to be going to that but that's conceded that there is an interest there i take and that all by itself constitutes a legally substantial burden on the religion that does it that meets that test and puts you into the range they should have been entitled to have some to be have to do with you know i don't like the log or a thing like that necessarily it is pinned at least in this discussion today on the fact that some government official gets to look after documents and say i like that or i don't like that as a matter of education it's good enough or it's not good enough but that all by itself is enough to constitute a substantial burden on religion and put the state to the burden of strict scrutiny and here is an act of appellate right assume for the sake of discussion that i have understood his argument what's your response to the legal argument there but that all by itself is a substantial burden and then puts the state to the burden of proving it would be up to strict scrutiny well i think first of all  hostility or opposition to having any accountability to the public school system for that or for the home education programs that they paid mentioned i don't have to do to into the system and act one sixty nine i don't think we don't have a compelling state interest test apply as as it was a part of a black hawk case were actually had a systematic discriminatory  that there be a comparable karimov on on the separate non treated shots aspect of the constitutional issue that's raced so in this case it would be the substantive due process rights of parents to direct the education of the children the only specific portions of that one sixty nine to be hoped to be unconstitutional and i think fundamentally one of the biggest business cases for all of the judicial policy action network i think they make a good point that not that we will never be regulated by the state on the contrary you know whether the individual parents here feel that way or not the position being taken by their advocate in this courtroom is we can see a state interest in religion we can see the regulatory interest will put the state into the education business with their kids that's a given the only question is is this statute on its face such that it vests a level of discretion in state actors that ought to require the state to show they're doing their regulatory stuff in the least restrictive way it has to get there religion that they should not report to the state the progress of their children's education well i think the net issue we have a question the sincerity of the religious beliefs the  he makes that determination but i've i think on the friday i think it's in the passage were talks about that they don't have a religious objection they have a general philosophical objection to having to comply with conduct of that violates a specific ten the distinction he makes between a philosophical problem and a religious problem one that's just too fine a distinction for a court to make one point is of philosophy become a religious belief rather separate constitutional provision of the fruits each clause it isn't that doesn't that put us in the various zone that we ought to be running screaming away from mike is making distinctions between whether something is really religious or church could properly make a determination about compelling state interest or is there more of a record that would have to be developed if the case of worship that there is no expert reports on there is testimony does how do you move into the entirely objective when you're asking somebody to decide whether or not somebody has written an essay and has done it in a way that demonstrates english literacy how the hell is that all done with perfect which is this is an endlessly recursive exercise teacher and by the court to enter because if you attempt to find some level of objectivity which is more objective than this it will still have subjectivity in it which would lead you're quite poor some folks like them that is who have a philosophical or religious problem with the state looking at their education say you know you're still you still got discretion i still have a problem you go back you do it again you go back  helps us understand the distinction you're making between what's truly objective quote unquote and what is unconstitutional a subject i would direct you please thirteen fourteen in the  objection be raised but the choice of the questions the wavier frame the selections given the multiple choice all be are on ideas or philosophies or decisions in that it any level i mean are on the record which we see behave this would be quote constitutionally objective unquote and not constitutionally subjective and therefore bad quote in the way you're you're laid it out for us when you make that distinction question period any level of discretion constitutes a substantial burden by virtue of previous supreme court three which compels you to to recognize that any level of discretion equal substantial