20 N.Y.2d 109 | NY | 1967
Lead Opinion
Section 1 of chapter 320 of the Laws of 1965 provides in part: “ It is hereby declared to be the public policy of the state that the public welfare and safety require that the state and local communities give assistance to educational programs which are important to our national defense, and the general welfare of the state.” (L. 1965, ch. 320, § 1.)
In keeping with this declaration of policy, the Legislature enacted subdivision 2 (renum. subd. 3 by L. 1966, ch. 795) of section 701 of the Education Law permitting the appropriate school authorities
Plaintiffs seek judgment that this statute violates both the State and Federal Constitutions (N. Y. Const., art. XI, § 3; U. S. Const., 1st and 14th Arndts.) The defendant Commissioner of Education and the intervenors-defendants, parents of children residing in plaintiffs’ school district who attend parochial schools, moved for dismissal of the complaint for failure to state a cause of action or for summary judgment declaring the statute constitutional. The plaintiff Boards of Education cross-moved for summary judgment declaring the statute unconstitutional.
Special Term denied all defendants’ motions and granted plaintiffs ’ cross motion, holding that the plaintiffs had standing
The Appellate Division reversed upon the ground that the plaintiffs had no standing.
Since we must reach the merits in this case
The last portion of this section, relating to the transportation of children, was added by special amendment to obviate the decision in Judd v. Board of Educ. (278 N. Y. 200 [1938]).
In Judd, this court by a vote of four to three declared that a law which provided for school busing of parochial school children could not be sustained because it constituted indirect aid to schools which was in violation of the Blaine Amendment. Judd determined that, although school busing was primarily for the benefit of the child, it still had the effect of giving an incidental benefit to sectarian schools and thus ran afoul of section 3 of article XI prohibiting indirect aid. It is now argued that the statute before the court providing for textbooks loans to all children, including those attending parochial schools, must be unconstitutional for the same reason. We cannot agree with the reasoning of the majority in the Judd case and accordingly hold that it should not be followed. The New York State Constitution prohibits the use of public funds for a particular purpose; that is, aiding religiously affiliated schools. Certainly, not every State action which might entail some ultimate benefit to parochial
The purpose underlying section 701, found in the Legislature’s own words (L. 1965, ch. 320, § 1, supra), belies any interpretation other than that the statute is meant to bestow a public benefit upon all school children, regardless of their school affiliations. There can be no serious suggestion that the declaration of purpose by the Legislature was a verbal smoke screen designed to obscure a nefarious scheme to circumvent the New York State Constitution. No one in the last third of the 20th Century can doubt that a program aimed at improving the quality of education in all schools is a matter of legitimate State concern.
Since there is no intention to assist parochial schools as such, any benefit accruing to those schools is a collateral effect of the statute, and, therefore, cannot be properly classified as the giving of aid directly or indirectly.
Only textbooks designated for use by the public schools or approved by Boards of Education, trustees or school authorities may be lent (Education Law, § 701, subd. 3). The State and local governments have long provided public libraries with books for use by all persons. It is not uncommon for schools, public and private alike, to assign various “ outside readings ” to pupils. Children often, then, fulfill assignments for courses in both public and private schools by means of using and borrowing from public libraries. We do not consider this indirect aid to private or parochial schools.
Having decided that section 701 entails no aid to the parochial schools, we thus hold that there is no Federal constitutional question under the establishment clause of the First Amendment. The State makes no affirmation of religious beliefs or activities within the public schools. Section 701 remains completely neutral with respect to religion, merely making available secular textbooks at the request of the individual student and asking no question about what school he attends. Despite the flexibility of the English language, it is impossible to conclude that loaning nonreligious textbooks to all students, including those who attend a parochial school, establishes a religion or constitutes the use of public funds to aid religious schools (cf. Everson v. Board of Educ., 330 U. S. 1,16, IS).
As a practical matter, to deny private school children the benefit of the State aid provided by section 701 could widen the gap between those children in deprived areas who attend parochial schools and those attending public schools in the same areas who receive the benefits of all the many and necessary
The order appealed from should be affirmed, without costs.
. The writer and Judges Burke and Bergan agree with the Appellate Division majority that plaintiffs have no standing. Judge Keating, who is for affirmance on the merits, agrees with the dissenters that plaintiffs do have standing.
. Mr. Justice Jackson, who dissented in Everson, objected to the statute there under consideration because it limited payments to the parents of public school or of Catholic school children. He said: “A policeman protects a Catholic, of course — but not because he is a Catholic; it is because he is a man and a member of society. The fireman protects the Church school — but not because it is a Church school; it is because it is property, part of the assets of our society. Neither the fireman nor the policeman has to ask before he renders aid ‘Is this man or building identified with the Catholic Church?’ But before these school authorities draw a check to reimburse for a student’s fare they must ask just that question, and if the school is a Catholic one they may render aid because it is such, while if it is of any other faith or is run for profit, the help must be withheld.” (330 U. S., supra, p. 25.) Subdivision 3 of section 701 of the Education Law asks no questions about what school the child attends, thus avoiding even the objection raised by Mr. Justice Jackson in his Everson dissent.
Dissenting Opinion
(dissenting). Plaintiff Boards of Education have, as it seems to us, capacity to sue. The cases holding that a public body has no standing to challenge a State statute restricting its governmental powers are not in point (e.g., City of Buffalo v. State Bd. of Equalization, 26 A D 2d 213; County of Albany v. Hooker, 204 N. Y. 1, 9-10; Black Riv. Regulating Dist. v. Adirondack League Club, 307 N. Y. 475, 487; St. Clair v. Yonkers Raceway, 13 N Y 2d 72, 76, cert, den. 375 U. S. 970). The reasons for this conclusion are adequately stated in the opinion by Special Term and in the concurring opinion at the Appellate Division. These Boards of Education are not seeking to augment their powers by obtaining an adjudication that a statute is unconstitutional which purports to restrict their authority, but, instead, they are asking for a court determination (in the form of a declaratory judgment) concerning whether they are legally authorized to spend public money for purposes purporting to be authorized by this statute. If subdivision 3 of section 701 of the Education Law (as amd. by L. 1965, ch. 320, and L. 1966, ch. 795) is unconstitutional insofar as it authorizes the purchase of textbooks by school boards for loan to children enrolled in parochial schools, then the school boards would exceed their powers in making such expenditures. Upon the other hand, if that statute is valid, as the State Commissioner of Education has ruled, any disobedient school board member becomes liable to removal from office (Education Law, §§ 306, 1706) and the Commissioner may withhold public moneys from any district whose school board disobeys the Commissioner’s directive implementing the statute.
The right of a local Board of Education to sue the State Commissioner of Education has frequently been upheld including actions involving the question of constitutionality of State statutes. (Matter of Board of Educ. of Cent. School Dist. No. 2 v. Allen, 14 A D 2d 429; Matter of Bethlehem Union Free School Dist. v. Wilson, 303 N. Y. 107; Matter of Board of Educ. of Union Free School Dist. No. 3 v. Allen, 6 A D 2d 316, affd. 6 N Y 2d 871.)
The last portion of this section, relating to the transportation of children, was added by special amendment to obviate the immediate impact of the decision in Judd v. Board of Educ. (278 N. Y. 200 [1938]). The Judd ease held that this provision of the State Constitution was violated by the then section 206 of the Education Law insofar as it purported to authorize the use of public funds to pay for the transportation of pupils to or from schools wholly or in part under the control or direction of religious denominations or in which religious doctrines or tenets were taught. The providing of schoolbooks for such schools touches more nearly what section 3 of article XI of the Constitution was designed to prohibit than the transportation of pupils by bus. The origin and purpose of this constitutional provision are discussed so thoroughly in the opinion of the court by Judge Rippey that we shall not repeat here what was said. It is argued here that in the Judd case, the expenditures were to be for the benefit of the parochial schools, whereas under this statute, they are for the pupil under the so-called child benefit theory. The court in the Judd case, however, cites and follows Smith v. Donahue (202 App. Div. 656) which held to be unconstitutional a construction of subdivision 4 of the then section 868 of the Education Law which would authorize Boards of Education to furnish free textbooks and other supplies to the children attending parochial schools. The Appellate Division, Third Department, there said (p. 664): “It seems to us to be giving a strained and unusual meaning to words if we hold that the books and the ordinary school supplies, when furnished for the use of pupils, is a furnishing to the pupils and not a furnishing in aid or maintenance of a school of learning. It seems very plain
Unless Judd and Smith be overruled, they are decisive of the present issue. It does not seem to us that any basic change has been wrought by the passage of time in the factors considered in Judd and Smith. The subject is controversial, and has been controversial in this country for over 200 years. It is unlikely that new developments have materially altered the basic considerations.
If this provision in the State Constitution were to be equated in these respects with the First Amendment to the Federal Constitution, it is by no means clear that the result would be different. It is true, to be sure, as stated by Justice Jackson in McCollum v. Board of Educ. (333 U. S. 203, 238) that there are times when ‘ ‘ the legal ‘ wall of separation between church and state ’ [becomes] as winding as the famous serpentine wall designed by Mr. Jefferson for the University he founded.” Nevertheless, the tendency of the Supreme Court has been rather strict in maintaining this wall of separation for reasons eloquently stated many years ago by Madison and Jefferson (Engel v. Vitale, 370 U. S. 421; Abington School Dist. v. Schempp, 374 U. S. 203; McCollum v. Board of Educ., 333 U. S. 203, supra). Everson v. Board of Educ. (330 U. S. 1, permitting payments for bus transportation) might have been decided differently today, inasmuch as it was decided five to four with Justice Douglas in the majority. He later wrote in Engel v. Vitale (370 U. S. 421), at page 443, that “ The Everson case seems in retrospect to be out of line with the First Amendment * * * Mr. Justice Rutledge stated in dissent what I think is durable First Amendment philosophy ”.
These and other decisions by the Supreme Court seem to have outdistanced Cochran v. Board of Educ. (281 U. S. 370). The Supreme Court therein was not bound by the First Amendment, which had not then been mandated on the States by the Fourteenth Amendment to the Federal Constitution, and the Louisi
This 1894 amendment (N. Y. Const., art. XI, § 3) has its roots in the early history of the State and belongs to “ the long and intensive struggle for religious freedom in America”, which Justice Rutledge mentioned in his dissenting opinion in Everson v. Board of Educ. (330 U. S. 1, 33-34, supra) of which he said the First Amendment “ was the direct culmination.” Despite differences in phraseology, the object of both the First Amendment and this State amendment is to keep religion from being dominated by government and to prevent government from being dominated by pressure groups seeking to control it for the promotion of religion.
If the books to be purchased by Boards of Education and supplied to pupils of parochial schools Avere religious tracts, it is conceded that the statute would be unconstitutional. The mere circumstance that they would be loaned to the pupil rather than supplied directly to the school Avould not preserve its validity. The constitutionality of this enactment is sought to be sustained on the basis that the textbooks to be supplied are “ secular ” rather than “ religious ”. Counsel for respondents assume that the clause in the section Avhich states that they
This has the most direct bearing upon the point presently at issue. If it were not true, church members who are compelled by law to pay taxes for public schools would not feel constrained by conscience and discipline to support religious schools for their own children. If the state is to provide schoolbooks for instruction in “ secular ” fields, which have inseparable religious connotations, and parochial schools become increasingly dependent upon state money to provide textbooks, which are the life blood of education, this statute will create and foster a pressure to dominate the choosing of books that shall be used in the public schools (so that they may be used also in parochial schools) which will always be latent, and at certain times and places, irresistible, and, as action begets reaction, there will be an opposite tendency, equally dangerous, on the part of the state to dominate the church.
As in the case of a trustee (e.g., Matter of Hubbell, 302 N. Y. 246, 259), the motivation of a religious group may be of the best, and its sense of mission the most disinterested, and yet — unless we are to change our governmental philosophy — the fundamental law will not permit it to be placed in a position where its own interest depends upon eroding the principle of separation between church and state.
The tendency on the part of the state to dominate the church has been observed in every totalitarian country, and it is actually what the First Amendment and article XI (§ 3) of the State Constitution were designed to prevent. The writings of James Madison, in particular, indicate that his concern for the separation between church and state was that he believed it to be as much in the interest of religion as of government.
If there were some applicable standard by which secular and religious textbooks could be distinguished from each other, there would remain the question whether taxpayers’ money could be spent to buy necessaries for parochial schools, thus liberating funds to be spent upon more strictly religious objectives. We are not required now to determine the constitutionality of expenditures for school lunch programs, health and welfare
The order appealed from should be reversed and the order and judgment of the Supreme Court, Albany County, be reinstated.
Judges Burke, Bregan and Keating concur with Judge Scileppi; Judge Van Voorhis dissents and votes to reverse in a separate opinion in which Chief Judge Fule and Judge Breitel concur.
Order affirmed.
