dissenting. I believe that the determination to be made by the school superintendent as to who is “qualified to teach” pursuant to R.C. 3321.04(A)(2) is an improper delegation of authority contrary to the basic values underlying the principles of due process. Therefore, I respectfully dissent.
R.C. 3321.04(A)(2) provides in pertinent part:
“(A) The superintendent of schools of the city, exempted village, or county school district in which the child resides may excuse him from attendance for any part of the remainder of the current school year upon satisfactory showing of either of the following facts:
“(2) That he is being instructed at home by a person qualified to teach the branches in which instruction is required * * *. In each such case the issuing superintendent shall file in his office, with a copy of the excuse, papers showing how * * * the qualifications of the person instructing the child at home were determined. * * *” (Emphasis added.)
This statute affords no guidance to superintendents limiting their discretion in determining who is “qualified to teach.” The decision of the superintendent may rest on ad hoc and subjective standards. What must be the educational background of the teachers — must they be state-certified or does “qualified” allow less than that?
Today’s decision forces the Schmidts to subject their sincerely held religious beliefs to the judgment of a school superintendent who is free to *37make the determination without guidance. I fail to see any language in the statute which provides the “intelligible principle” for decision-making espoused by the majority.
Even the majority recognizes that an arbitrary and capricious refusal can be made by a superintendent. However, it believes that such an unjust refusal can be simply corrected by an appeal to the juvenile court pursuant to R.C. 3331.08. What guidelines are provided for the juvenile court to review the qualifications of a “home school” teacher? This court has recognized that “ ‘the courtroom is simply not the best arena for the debate of issues of educational policy and the measurement of educational quality,’ * * * as well as the ‘obvious fact that courts are not school boards or legislatures * * *.’ ” State, ex rel. Nagle, v. Olin (1980), 64 Ohio St. 2d 341, 353, 18 O.O. 3d 503, 510-511, 415 N.E. 2d 279, 288.
This statute fails to provide a superintendent with any guidelines as to who is “qualified to teach” and, in effect, permits a school superintendent to determine who is violating the law. Thus, I find it to be an improper delegation of authority contrary to the basic values underlying the principles of due process. See Grayned v. City of Rockford (1972), 408 U.S. 104.12 Accordingly, I respectfully dissent.
See, also, State v. Newstrom (Minn. 1985), 371 N.W. 2d 525; State v. Popanz (1983), 112 Wis. 2d 166, 332 N.W. 2d 750; Roemhild v. State (1983), 251 Ga. 569, 308 S.E. 2d 154.