Summary
In Hartington, the Nebraska Supreme Court upheld a Title I grant proposal that involved the use of public funds to lease two unused classrooms in a Catholic High School that would be used for remedial education courses for public and private school students.
Summary of this case from National Coalition for Public Ed. v. HarrisOpinion
No. 37942.
Filed February 25, 1972.
Schools and School Districts: Constitutional Law: Property: Contracts. It is not unconstitutional for a public school district to use or lease classrooms in a church or other sectarian building for public school purposes if the property used or leased is under the control of the public school authorities and the instruction offered is secular and nonsectarian.
Appeal from the district court for Lancaster County: ELMER M. SCHEELE, Judge. Affirmed.
Clarence A. H. Meyer, Attorney General, and Chauncey C. Sheldon, for appellants.
Robert B. Crosby of Crosby, Pansing, Guenzel Binning, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
This is an action by the School District of Hartington, Nebraska, to compel the Nebraska State Board of Education, and the Nebraska Department of Education, to approve its application for a grant of federal funds to provide instructional activities and services to meet the special educational needs of educationally deprived children. The application, dated September 8, 1969, was made pursuant to the Federal Elementary and Secondary Education Act of 1965.
Because of a shortage of space in the buildings owned by the Hartington School District, the district entered into a lease with the Hartington Cedar Catholic High School for the use of one classroom full time and a second classroom half time. The lease provided that the classrooms would be used only for carrying on the project under the Federal Elementary and Secondary Education Act of 1965; that the Hartington School District would have full control over the classrooms and the educational program; and that no objects, pictures, or other articles having a religious meaning or connotation would be in the classrooms.
The defendants refused to approve the application because the project included the use of leased classrooms in the Hartington Cedar Catholic High School Building. This action followed.
The trial court found generally for the plaintiff and ordered the defendants to approve the application. The defendants appeal. The sole issue presented is whether the lease between the plaintiff and the Hartington Cedar Catholic High School is in violation of the Constitution of the United States and the Constitution of Nebraska. The particular provisions involved are the establishment clause of the First Amendment to the Constitution of the United States, and the prohibition against public aid to any sectarian or denominational school contained in Article VII, section 11, of the Constitution of Nebraska.
The First Amendment to the Constitution of the United States provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *."
The Constitution of Nebraska provides: "Neither the State Legislature nor any county, city or other public corporation, shall ever make any appropriation from any public fund, or grant any public land in aid of any sectarian or denominational school or college, or any educational institution which is not exclusively owned and controlled by the state or a governmental subdivision thereof." Art. VII, 11, Constitution of Nebraska.
The right of a public school district to use or lease all or a part of a church or other sectarian building for public school purposes has been upheld in a number of cases. As stated by the Supreme Court of Michigan in In re Proposal C, 384 Mich. 390, 185 N.W.2d 9: "Premises occupied by lease or otherwise for public school purposes under the authority, control and operation of the public school system by public school personnel as a public school open to all eligible to attend a public school are public schools. This is true even though the lessor or grantor is a nonpublic school and even though such premises are contiguous or adjacent to a nonpublic school." See, also, State ex rel. Conway v. District Board, 162 Wis. 482, 156 N.W. 477; Dorner v. School Dist., 137 Wis. 147, 118 N.W. 353; Millard v. Board of Education, 121 Ill. 297, 10 N.E. 669; Scripture v. Burns, 59 Iowa 70, 12 N.W. 760; Swadley v. Haynes (Tenn.), 41 S.W. 1066; Rawlings v. Butler (Ky.), 290 S.W.2d 801, 60 A. L. R. 2d 285; Crain v. Walker, 222 Ky. 828, 2 S.W.2d 654; City of New Haven v. Town of Torrington, 132 Conn. 194, 43 A.2d 455; State ex rel. Johnson v. Boyd, 217 Ind. 348, 28 N.E.2d 256.
If the property used or leased is under the control of the public school authorities and the instruction offered is secular and nonsectarian, there is no constitutional violation. The lease in this case meets these requirements. We find no "excessive entanglement" between government and religion in the lease involved in this case. See Walz v. Tax Commission, 397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697.
The defendants concede that it is not ipso facto unlawful for a public school district to lease property from a church-affiliated organization or institution for public school purposes. They attempt to raise a broader issue and challenge the "general constitutionality of the total educational program here involved." The defendants assert that it is unconstitutional for parochial school children to participate in an educational program under the federal act.
The federal act requires that educationally deprived children within the public school district who are enrolled in private schools be allowed to participate in the program. 20 U.S.C.A., 241e (a) (2). Section 116.19 (b) of the federal regulations provides that the private school students' participation in the program shall be on a basis comparable to that of the children enrolled in the public schools. The defendants actually seek a declaration that the federal act itself is unconstitutional. See Barrera v. Wheeler, 441 F.2d 795 (8th Cir.). Although that issue is not presented in this case, we believe it appropriate to make the following observations concerning the contention advanced by the defendants:
The Constitution of Nebraska specifically provides that no religious test or qualification shall be required of any student for admission to any public school. Art. VII, 11, Constitution of Nebraska. It would seem that an attempt to prohibit a student enrolled in a parochial school from participating in a program conducted by the public schools, solely because the student was enrolled in a parochial school, would violate this provision of the Constitution of Nebraska.
The United States Supreme Court has, in the past, recognized a distinction between aid provided to parochial school students or their parents and aid provided to the school itself. In Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711, 168 A. L. R. 1392, public transportation of nonpublic students was held constitutional. In Board of Education v. Allen, 392 U.S. 236, 88 S. Ct. 1923, 20 L. Ed. 2d 1060, the loan of schoolbooks for parochial school students was approved. In Earley v. DiCenso, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745, and Robinson v. DiCenso, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745, payment of a salary supplement to teachers of secular subjects in nonpublic schools was held invalid. In Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745, reimbursement for teachers' salaries, textbooks, and instructional materials for secular subjects in nonpublic schools was held invalid. In Tilton v. Richardson, decided June 28, 1971, 403 U.S. 672, 91 S. Ct. 2091, 29 L. Ed. 2d 790, Chief Justice Burger stated: "Our cases from Everson to Allen have permitted church-related schools to receive government aid in the form of secular, neutral, or nonideological services, facilities, or materials that are supplied to all students regardless of the affiliation of the school which they attend." See, also, P.O.A.U. v. Essex, 28 Ohio St.2d 79, 275 N.E.2d 603.
The record shows that the classes which would be conducted by the Hartington School District in the leased classrooms would include both students enrolled in the public schools and students enrolled in nonpublic schools. It would seem that to deny a student the right to participate in a program offered by a public school district solely because that student is enrolled in a parochial school would violate that student's right to a free exercise of religion and to equal protection of the law. In re Proposal C, supra.
The judgment of the district court is affirmed.
AFFIRMED.
WHITE, C. J., and SPENCER, J., responding to concurrence.
The concurring opinion makes the broad statement that the dissenting opinion misconceives the law and the facts. This position is buttressed by nothing more than a broad statement of the purpose of the act and its availability to all students. Whether or not this statement of purpose would save the act from being declared unconstitutional on its face is not the question before us. The problem is what the act actually authorizes and what the application in fact seeks to do. We reiterate, rhetoric aside, that the application seeks State approval and consent to the funding and spending of public tax money to furnish secular educational facilities and instruction to parochial school students within their own parochial school building. It is quite inconceivable to us that such an application, requiring public school teachers to teach parochial school students secular subjects in the confines of a parochial school building, does not raise constitutional questions of the most serious nature. The point is that the constitutionality of any "special educational" program will necessarily depend upon the nature of the particular application and what it seeks to accomplish. In our opinion, the authorization of "pocket schools" as this application and this act envision is contrary to the basic provisions of the Constitution of the State of Nebraska and the federal Constitution with reference to the separation of church and state. The concurring opinion utterly fails to answer the questions of entanglement involved in this scheme and its execution, questions that exist no matter how efficient it may be claimed this program is in promoting the secular education of parochial school children. It utterly fails to answer the argument that the execution of this program in this application under the broad language of the federal program results in an aid to religion, because it is obvious that the provision for funding and providing instruction and education in secular subjects reduces the education cost and necessarily frees money and benefits for use for the particular religious purposes of the parochial school. We also reiterate our previous position that the law of separation of church and state, erected by our Constitution makers as one of the most fundamental principles of our government, was directed not only at religious penetration or intrusion into public education and the expenditure of public funds, but thrusts equally strong to prevent governmental or state penetration or intrusion into the freedom of parochial schools to conduct their religious program of education free of any restraints, inhibitions, or controls by the state or the federal government.
The concurring opinion also states the Epeldi v. Engelking, 94 Idaho 390, 488 P.2d 860, "represents a definite minority viewpoint." We feel that this statement simply cannot be supported. Even with respect to the issue of bussing, following the Everson case, the majority of states have rejected Everson and have barred transportation at public expense of children attending nonpublic schools. In Reutter and Hamilton, The Law of Public Education, p. 15 (Foundation Press, 1970), the following statement is made with reference to state court interpretation of state constitutions after Everson: "In subsequent years the highest courts of several states have considered the issue in light of their respective state constitutions. As of the end of 1969, more had rejected than accepted the reasoning of the majority in Everson and had barred transportation at public expense of children attending non-public schools."
It hardly needs repetition that the issue involved in the physical transportation of students is far different than the issue we have before us here, namely, the intrusion of public funds into the actual teaching and instruction of parochial and public school students.
We further call attention to our previous decision in State ex rel. Public School District v. Taylor, 122 Neb. 454, 240 N.W. 573 (1932), where this court was asked to command that public funds be paid over to a parochial high school in Cedar County, Nebraska, which is precisely what is being asked in the case at bar. After finding that the school was obviously parochial and therefore without the definition of a public or common school, this court concluded that our state Constitution, citing Article VII, sections 3 to 9, Article VII, section 11, and Article I, section 4, would not allow the court to "require the state superintendent of public instruction to apportion part of the interest and income from the state common school trust funds to a school in part sectarian — a school which is not a common or public school within the meaning of the Constitution." (Italics supplied.) In other words, the court rejected the notion that the use of public funds to teach secular subjects in a sectarian school was constitutional. To sum it up, it seems to us that the opinion of the majority in this case is authorizing the creation of an unconstitutional dual school system. There is no reason to believe that public support of the parochial school in Cedar County will end with one and one-half rooms and the teaching, by public school teachers, of a limited group of "secular" subjects.
It is stated that we have made an incorrect analysis of Johnson v. Sanders, the latest pronouncement on the subject. We note that the dissent mentioned the Johnson case only as it aided in the dissent's analysis of the entanglement issue presented in this case. The criticism from the concurrence does not deal in any nature whatsoever with the entanglement issue and the issue of political divisiveness, issues which we think are fundamental to the disposition of this case. However, in going further, the concurrence does state that the Johnson case "clearly approved special education services of the kind involved here." This statement is simply wrong. The reading of the Johnson opinion shows that the State of Connecticut did finance "secular education provided independently by parochial schools." Unlike our situation here, there were only a minimum of state regulations as to the operation of the secular courses, and it was not the situation as it is here where there is to be a "pocket" public school within the physical confines of a private school. The defect in the new program which Johnson declared unconstitutional was exactly that which we have here, namely, governmental promotion and complete control of secular educational activities within private institutions; "The State itself assumes responsibility for providing instruction in certain courses at parochial as well as at public schools." The Johnson opinion, as we have pointed out, exhaustively exposes the entanglement and the political divisiveness of this intermingled situation.
In the Johnson case, the court compared the prior form of state aid to the newly enacted statutory plan thus presenting the same issue we have here. The distinction between the Johnson case and the case we have here is a hairline at the most. It is this very type of hairline distinction which the thrust of Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 29 L. Ed. 2d 745 (1971), and the other cases seek to forbid. In the Johnson case, it is stated: "The primary effect of the type of `promotion' prescribed would be much more extensive, transforming a unitary public school system into a dual one which partially incorporates participating private schools as its administrative appendages." The divisiveness and the entanglement may be stated as follows: Will a Cedar County Catholic High School become a common school or will we have a dual system, public and "pocket" public?
There is another aspect of the Johnson case which was not previously mentioned in the dissent. The Connecticut statute in question in Johnson provided for the support of "any or all secular instruction at contracting schools." Because of the potential of having the state administering the entire secular portion of the private school's instructional program, the court recognized the problem of government's influence being so great that "state action" is created; i.e., the private school becomes an arm of the state and the state can be charged with the private school's traditional discriminatory practices in admissions. Apart from that the court in Johnson noted that "it would infringe all taxpayer's First Amendment rights to be assured that their money is not used to sponsor an institution which simultaneously teaches religion or applies selective religious standards." In the case at hand, only a portion of secular instruction is controlled by the state, but coupled with the fact that the state is to have a leasehold interest in the property, the parochial school may become an arm of the state. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45.
In closing this response, we call attention to the recent case of State ex rel. Chambers v. School Dist. No. 10 of Deer Lodge County, 472 P.2d 1013, a Montana case. This case is almost directly in point with the case at bar. In that case the court held that their state Constitution prohibited public school boards from making levy for, or expending funds for the employment of teachers to teach in a parochial school, following the authority contained in a specific state statute. The state constitutional provision in Montana is almost in haec verba with the one in Nebraska. It states as follows: "Neither the legislative assembly, nor any county, city, town, or school district, or other public corporations, shall ever make directly or indirectly, any appropriation, or pay from any public fund or moneys whatever, or make any grant of lands or other property in aid of any church, or for any sectarian purpose, or to aid in the support of any school, academy, seminary, college, university, or other literary, scientific institution, controlled in whole or in part by any church, sect or denomination whatever."
In striking down the school board levy for the employment of teachers to teach secular subjects in a parochial school, the court said: "The Chief Justice proceeded to point out (Walz v. Tax Commission, 397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697) the dangers of such a course in these words: `The hazards of churches supporting government are hardly less in their potential than the hazards of governments supporting churches; each relationship carries some involvement rather than the desired insulation and separation. We cannot ignore the instances in history when church support of government led to the kind of involvement we seek to avoid.'" The Montana court, in rejecting the argument that is made in the concurrence here, that our State Constitution is open to interpretation, said as follows: "Returning to Section 8 of Art. XI, it cannot be asserted that this section is ambiguous or indefinite and thereby open to interpretation since it clearly states in no uncertain terms that no school district can directly or indirectly appropriate or pay from public funds to aid the support of any school controlled in whole or in part by any church, sect or denomination. While it was argued to the contrary by the appellants, that such section could be interpreted to support their theory of this case, we cannot accept such argument."