The State maintains that the proper constitutional analysis in this matter turns on the use to which these higher education institutions will put the monies, not the nature of the institutions themselves. While plaintiffs do not dispute that the use of funds must be addressed, they emphasize the pervasively sectarian nature of the institutions and the avowed, and practically implemented, purpose of each to train individuals in theological and religious study, which plaintiffs contend profoundly affects the analysis in this matter.
This case comes before us as an appeal from final administrative action by the Secretary approving the grants. The present record is comprised essentially of the grant applications submitted by the institutions to the Secretary. The arguments of the parties reveal competing views of (1) the sectarian nature of these institutions of higher education; (2) whether, in the setting of the curriculum and training programs of these particular institutions, the grant funds will necessarily be used in the "maintenance of any minister or ministry"; and (3) the adequacy of promised restrictions or other
A remand is necessary to allow for the development of a proper record, with fact-finding. Adversarial testing of the evidence in support of the parties' presentations is required here. Only based on such a record can the courts appropriately review the Secretary's decision to award, or not, grants to these institutions, in light of the constitutional arguments raised by plaintiffs. Because we conclude that an informed
I.
A.
The background to this appeal is the "Building Our Future Bond Act" (the Act), which was enacted into law on August 7, 2012. L. 2012, c. 41. The Act authorized the State to effectuate the means to subsidize capital improvement projects for institutions of higher education. At the ensuing Election Day in November 2012, New Jersey voters approved a referendum authorizing the issuance of $750 million in general obligation bonds, the proceeds of which were to support the purposes of the Act.
The State proceeded to issue bonds and secure funds to be available to support higher education capital-improvement projects; at about the same time, the State solicited applications from higher education institutions interested in receiving such funding. Following the receipt and review of submitted applications, on April 29, 2013, the Governor announced that Secretary of Education Rochelle Hendricks had submitted to the Legislature for
Of the forty-six higher education institutions that received funding, at least nine were religiously affiliated. Relevant for our purposes, two of those institutions were the Beth Medrash Govoha (the Yeshiva) and the Princeton Theological Seminary (the Seminary).
B.
From the administrative record submitted to the Appellate Division, we glean the following information. Largely, except where noted, the information comes from material gathered during the application process conducted by the Secretary, either in the form of representational responses to the State's application questions or in attachments submitted with the application.
The Yeshiva is located in Lakewood Township and serves more than 6,000 students. It is accredited by the Association of Advanced Rabbinical and Talmudic Schools. The Yeshiva describes Talmudic Studies as "a broad compendium of scholarship that draws on knowledge from a wide array of sources and disciplines, among which are references to religious texts such as the Bible." For purposes of elucidating the discussion, we add that a commonly accepted definition describes the Talmud as
the basic compendium of Jewish law and thought; its tractates mainly comprise the discussions collectively known as the Gemara, which elucidate the germinal statements of law (mishnayot) collectively known as the Mishnah; when unspecified refers to the Talmud Bavli, the edition developed in Babylonia, and edited at the end of the fifth century C.E.; the Talmud Yerushalmi is the edition compiled in the Land of Israel at the end of the fourth century C.E.
[Talmud, Chabad.org, https://www.chabad.org/search/keyword_cdo/kid/2700/jewish/Talmud-The.htm(last visited April 17, 2018).]
According to its mission statement, the Yeshiva is "an institution of Higher Education that specializes in advanced Talmudic scholarship. Its primary objective is to produce Talmudic scholars and to thereby provide firm, lifelong foundations for its students, graduates and their communities." The Yeshiva further represents that "[a]n integral part of [its] scholastic and professional aims is ethical and moral growth and maturity of the students, based on Jewish ethics and philosophy."
The Yeshiva offers four programs: a bachelor's degree in Talmudic Studies, a master's degree in Rabbinical and Talmudic Studies, and two certificates in graduate Talmudic Studies. The Yeshiva explained that fewer than five percent of students participate in a program that leads to ordination, and that the ordination program's religious instruction is "opt-in, not opt-out." The application record does not clarify whether the other courses constitute religious instruction, but does specify that "portions of the curriculum may utilize or reference texts with religious origin."
That said, the graduate course catalog included with the Yeshiva's grant application lists a series of courses that appear to correspond almost exclusively to tractates of Talmud, with a few additional course offerings that explore the work of selected rabbis, largely in the context of ethics. The undergraduate program mandates that each student complete a Bachelor of Talmudic Studies, including 150 credit hours, 140 of which are taught by the Talmud Department. The sample curriculum for this program illustrates that each student is expected to complete four courses
The Yeshiva received a grant award totaling $10,635,747. The award included a grant of $5,118,000 to fund construction of a new library and research center, and a grant of $5,517,747 to fund construction of a three-story academic center, which would contain study halls, classrooms, a reference library, a computer room, faculty offices, and academic service rooms. As a condition of its receipt of grant funds, the Yeshiva was required to submit a Sectarian/Religiously Affiliated Educational Institution Questionnaire to the State. In answering the questions posed by that form, the Yeshiva stated that it was an "independent institution rooted in Jewish tradition," that it has "no formal affiliation to any hierarchical religious organization," and that the funds would not be used to finance any chapels or places of worship. In a supplemental questionnaire provided to the State, the Yeshiva further stated that "all classes may be offered" in the facilities subsidized by grant funds, but that the project facilities would not be used for "anything associated with ordination."
The Yeshiva contends that their programs focused on Talmudic Studies "contain a critical thinking liberal-arts core ... [and] [a]lthough [the Yeshiva] does not directly offer degree programs in the STEM concentrations, it does provide its students with
C.
The Seminary is a coeducational denominational school located in Princeton offering graduate programs in theological education. It is accredited by the Association of Theological Schools and the Middle States Commission on Higher Education. The Seminary offers the following degrees: Master of Divinity; Master of Arts (Christian Education); Master of Theology; and Doctor of Philosophy (Biblical Studies, History and Ecumenics, Theology, Practical Theology, or Religion and Society). It also offers a number of continuing education programs through various initiatives, institutes, and inter-institutional agreements. According to its mission statement, it "prepares women and men to serve Jesus Christ in ministries marked by faith, integrity, scholarship, competence, compassion, and joy, equipping them for leadership worldwide in congregations and the larger church, in classrooms and the academy, and in the public arena." The Seminary also refers to itself as
[a] professional and graduate school of the Presbyterian Church (U.S.A.) [that] stands within the Reformed tradition, affirming the sovereignty of the triune God over all creation, the Gospel of Jesus Christ as God's saving word for all people, the renewing power of the word and Spirit in all of life, and the unity of Christ's servant church throughout the world.
The Seminary applied for and was awarded three grants through the program totaling $645,323. One grant, for $241,722, was to enhance the information technology system at the Seminary's library. Counsel, at oral argument, informed us that the award would provide for infrastructure improvement only and
The Seminary also submitted to the Secretary a Sectarian/Religiously Affiliated Educational Institution Questionnaire in which it stated that it is an "independent
The Seminary also maintained that the enhanced IT infrastructure will increase inter-institutional communication and education, stating that the grant funds will "result in the enhancement of Open Educational Resources (OER) for scholarly collaboration and support services for educators and researchers" and will "connect infrastructure for intra- and inter-institutional repositories." According to the Seminary, that connected infrastructure will allow the Seminary to share its repository with other institutions with which it has a reciprocal relationship, including Princeton University and the Westminster Choir College of Rider University, whose students will be able to
The Seminary made similar assertions concerning the grant for the training room, stating in its application that the grant funds will add a number of technological enhancements to the training room that will "increase its telecommunication offerings, as well as facilitate access to key video, audio, and data resources," and keep the training room "compatible with inter-institutional communication." The training room will apparently be used for software and other computer training, providing "on-site and distance training" to train faculty and students on "emerging tools necessary for their academic work."
The Seminary acknowledged a number of other, sectarian uses to which the projects may be put. The Seminary stated in its project description for the library that it is "developing a core Internet resource for the study of theology and religion." In its application for grant funds for the training room, the Seminary noted that its expansion through the use of grant funds will allow for building partnerships with organizations such as the Administrative Personnel Association of the Presbyterian Church. In its technology plan, submitted as part of its application for renovation of the library, the Seminary stated that the services provided as part of the upgrades to their audio and video equipment will include "[a]ll lectures and special campus events, from Presidential lectures to Chapel services." The Seminary also stated in its questionnaire that "the training facility potentially may be used for software programs employed in both religious instruction and religious study."
Moreover, the Seminary also stated that "[a]ll degree students are expected to be of the Christian faith"; that the faculty are required to be of the Christian faith; and that the curriculum includes religious instruction. It also stated in that report that the
II.
The American Civil Liberties Union of New Jersey (ACLU-NJ), joined by several other parties,
On July 15, 2013, the trial court entered a Consent Order under which plaintiffs agreed to withdraw their request for an injunction and defendants agreed to give plaintiffs notice before disbursing any of the contested funds. Determining that the lawsuit was an appeal from an agency action, the trial court transferred jurisdiction of the case to the Appellate Division pursuant to Rule 2:2-3(a)(2).
The Appellate Division invalidated the grants to the Yeshiva and the Seminary, holding that the grants violated the Religious Aid Clause of the State Constitution. ACLU of N.J. v. Hendricks,
The panel reasoned that its analysis under Article I, Paragraph 3 of the State Constitution was controlled by this Court's holding in Resnick v. East Brunswick Township Board of Education,
With Article I, Paragraph 3's ambiguities providing no easy answer to the issue, the panel turned to Resnick for guidance concerning the clause.
As noted, the State defendants petitioned this Court for certification. They argue that the Appellate Division failed to apply the plain language of the Religious Aid Clause of the State Constitution and that Resnick does not control the disposition of this case. We granted the petition for certification.
III.
A.
The New Jersey State Constitution provides as follows:
No person shall be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience; nor under any pretense whatever be compelled to attend any place of worship contrary to his faith and judgment; nor shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform.
[ N.J. Const. art. I, ¶ 3.]
Until recently, when this Court thoroughly examined the history and import of the Religious Aid Clause of our State Constitution in Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders,
In explaining that holding, reached in the setting of religious organizations conducting worship services and religious instruction on rented public property subsidized by the public fisc, the Court in
Resnick's broad summary language about religious organizations should not be misconstrued. To be viewed properly, the Court's statements in Resnick must be tethered to its holding, and its holding rooted the application of Article I, Paragraph 3 of the State Constitution to the facts of the case. Specifically, Resnick's holding allowed a church-a "religious organization"-to rent
B.
The issue decided in Resnick is not the same as the question presently before us. Here, we are not concerned with the Yeshiva's and the Seminary's use of public space for worship or religious instruction purposes. Rather, here we confront the direct disbursement of grant funds for the improvement of physical and technological infrastructure of higher education facilities, a general and statewide benevolent program to which two entities seek to gain access like other higher education institutions.
Specifically at issue is whether the disbursement of funds for avowed secular purposes becomes violative of our Religious Aid Clause when granted to sectarian schools that offer curricula steeped in theological study, as plaintiffs say. According to plaintiffs, giving public grant funds to two educational institutions so pervasively sectarian and oriented to the training of persons for instructing in a particular religion constitutes religious use prohibited under the Religious Aid Clause.
Plaintiffs argue that the grants "would directly support and enhance the grantees' religious training and instruction." They assert that the grants to the Yeshiva
The educational institutions assert that the improvements to the infrastructure of their facilities would assist adherents to their faith and earnest students alike. Both claim they are not training for ordination and therefore would not be using funds for the "maintenance of any minister or ministry." Further, the Seminary emphasizes that the grant funds for improving its library's IT infrastructure will allow for public access to the Seminary's library materials, which include scholarly articles and books, although the record contains few specifics on the contents of the theological library. When questioned about the contents at argument, counsel's proffer was general in nature. The Yeshiva also claims that greater public access to its library materials will be a beneficial by product of the grants.
In light of the contrary assertions by the parties and the state of this record, we can only conclude that the facts are murky on critical details that will affect the constitutional conclusions to be reached. Different religions use varying approaches to what constitutes religious instruction and forms of worship. There are many questions left unanswered by this record, which does not explore or define the relationship of religious instruction and study to worship, devotion to the religion, and ministry at these two institutions. Also, greater detail is needed concerning the exact purpose and ultimate use to which the grant funds will be put. The record simply does not equip us to answer whether the award of the challenged grant funds to these two institutions violates the Religious Aid Clause of the State Constitution.
A.
In assessing the Religious Aid Clause issue that was reached by the Appellate Division, there is a corollary question concerning whether the denial of the requested funds would run afoul of the federal Free Exercise Clause. U.S. Const. amend. I. Although not raised in plaintiffs' complaint, the issue about the Free Exercise Clause has been raised by the State, the educational institutions, and amicus. The Free Exercise argument advanced before our Court was not addressed below. Upon close examination of two Supreme Court cases highly relevant to the argument involving the federal Free Exercise Clause, we again find that the inadequacies and unresolved questions about the present record hobble any ability to address the question at this time.
In Locke v. Davey, the United States Supreme Court addressed the constitutionality under the Free Exercise Clause of a scholarship program established by the State of Washington that excluded otherwise eligible students who were pursuing degrees in theology.
The Court examined Washington's scholarship program, noting that "[t]he program permits students to attend pervasively religious
[W]e find neither in the history or text of Article I, § 11 of the Washington Constitution, nor in the operation of the [State of Washington's] Scholarship Program, anything that suggests animus towards religion. Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect.
Without a presumption of unconstitutionality, Davey's claim must fail. The State's interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on [scholarship recipients]. If any room exists between the two Religion Clauses, it must be here. We need not venture further into this difficult area in order to uphold the ... Scholarship Program as currently operated by the State of Washington.
[Id. at 725 ,.] 90 S.Ct. 1409
Locke was distinguished by the Supreme Court's recent decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ----,
Our task in this matter will eventually require an assessment of whether the grant distributions to the Yeshiva and to the Seminary
At present, we are ill-equipped to answer those questions based on the uncertainties in the factual record. Because resolution of those factual matters is a necessary basis for the additional claims, this matter similarly requires factual development
With respect to the Religious Aid Clause issue-the only claim of plaintiffs' to be decided by the Appellate Division, whose judgment is under review-we see only one appropriate course of action. Rather than address a matter of constitutional importance on an insufficiently developed record, the better course is to remand the matter for an evidentiary hearing to bring the relevant factual material into better focus. Among the questions to be explored are those previously identified based on the contrary views of the parties concerning (1) the sectarian nature of these institutions of higher education; (2) whether, in the setting of the curriculum and training programs of these particular institutions, the grant funds will necessarily be used in the "maintenance of any minister or ministry"; and (3) the adequacy of promised restrictions, or other curbs, against sectarian use of the grant proceeds at present and into the future.
B.
This case comes before us under Rule 2:2-3(a)(2) as an appeal from final agency action. An action that comes to us as a result of final agency action must have a fully developed record so that a reviewing court may engage in meaningful appellate review. See, e.g., In re Issuance of Permit by DEP,
The record does not reveal enough about the nature of the educational training and curriculum offered by the Yeshiva and Seminary and how it is delivered, nor does the record present sufficient detail about how the grant fund projects will be put to use in the institutions' respective settings. It is imperative that those issues be more fully developed below, through the crucible of an adversarial process, before the constitutional questions raised in this matter are addressed. Accordingly, we will remand to the Secretary for the development of a record in accordance with this opinion.
V.
The judgment of the Appellate Division is necessarily vacated, and the matter is remanded to the Secretary for proceedings consistent with this opinion. We leave in place the Consent Order entered by the trial court.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON and TIMPONE join in this opinion. CHIEF JUSTICE RABNER did not participate.
Notes
The third grant, for $289,889, would have subsidized the renovation of a conference room and upgrades to the room's telecommunications equipment, but the Seminary subsequently withdrew that application.
The ACLU-NJ has taken the lead in pursuing this matter. Therefore, we hereinafter refer to plaintiffs collectively as ACLU-NJ.
The requirement was not to be "carried to an extreme," the Court noted. Id. at 103,