*1 grave ored unless a would injustice result. injustice
No such is present in this ease.
STEPHENS, C.J., J., AKER, join and
this dissent. Coffman, Lexington, B. for ap-
Jennifer Jr., John J. Gen. Coun- pellants; Slattery, Louisville, sel, Ass’n, Kentucky Educ. counsel. H. Montgomery,
B. Keefe Theodore Am- Gross, shoff, Jr., Louisville, Dept, of Monte FANNIN, Vyda al., Appellants, et Finance, Frankfort, appellees; Patrick Counsel, League Gen. Catholic Monaghan, WILLIAMS, Barbara as State Librarian Milwaukee, Religious Rights, Civil Kentucky, et Commonwealth of Wis., of counsel. al., Appellees. LEIBSON, Justice.
Supreme Kentucky. Court of judgment This is a action declaratory 6, July 1983. 171.215, of KRS challenging validity to children in supplying statute textbooks Petitions for Respondents-Appellees (Kentucky the state’s Rehearing or Modification Acts, 1978, 139, 17,1978). June 15,1983. Ch. effective Sept. Denied complaint attacked as unconstitutional
school textbook statute
184,
171, 180,
under sections
Constitution;
as an
legislative
delegation
unconstitutional
officials; and as
administrative
power to
the First
Four-
unconstitutional under
the Constitution of
teenth Amendments to
summary
motion for
the United States. On
dismissed all of
judgment,
trial court
grounds.
these
appealed.
summary
judgment
from
Court
was transferred
appeal
pursuant
Appeals
76.18.
to CR
is:
The title of the statute
textbooks
mak-
relating
“AN
ACT
therefor.”
ing
appropriation
an
is as follows:
of the statute
The text
SECTION OF
1. A NEW
SECTION
TO
171 IS CREATED
KRS CHAPTER
READ AS FOLLOWS:
shall
of libraries
“(1)
department
publishers
purchase
by adopted
have been
whose books
*2
of
provisions
commission
out the
carry
state textbook
for distribu-
2. To
Section
de-
Act,
to the
pupils attending
appropriated
tion without cost
there is
(1)
(12)
$25,000
one
fiscal
grade
through grade twelve
for
of libraries
partment
nonpublic
of the state’s
schools which
1978-79,
lapse
which sum shall not
year
by
depart-
have been accredited
the state
the next
carried forward to
but shall be
ment of education.
year.”
fiscal
(2) The chief school administrator of
conclu
we have reached the
Because
eligible
each
school
file a
requisition
sion,
regardless
reluctantly,
albeit
with the state librarian for the books
violates the
the statute
salutory purpose
ensuing
needed for the next
school term.
Constitution,
it would extend
eligible
Textbooks
for distribution by
to examine all of
opinion unnecessarily
grade
subject
level or
shall conform to
constitutionality
complaints against
by
the schedule
use
the state board of
It is
thereto.
responses
the statute and
public
education for distribution to the
points
with the
only necessary to deal
schools.
compel this conclusion.
(3)
develop
The state librarian shall
171 of
regulations governing
pur-
rules and
chase,
distribution,
“Taxes shall be levied and
requisition,
assign-
specifies that
students, care,
ment to
use
return
Is the
public purposes only.”
collected for
textbooks, and
plan
permanently
for
educating
tax
for
appropriation of
labeling
property
the textbooks as the
public
“for
nonpublic
children in
the department of libraries. The rules
These textbooks are for “distri-
purposes?”
regulations
provide
shall
for the allo-
attending
pupils
cost
bution without
cation of textbooks in a manner reflect-
(1)
(12)
twelve
grade
through grade
one
ing,
expressly
not to exceed the
limit-
2 of
schools.” Section
nonpublic
the state’s
appropriation
ed
to fund the Act. The
$25,000
that pur-
appropriates
the Act
rules and regulations
developed
shall be
pose.
in consultation with the
department
school.”
158.030 defines a “common
KRS
conform,
education and shall
within stat-
school of
elementary
secondary
It is “an
or
limits,
utory
to the rules
regulations
by
in part
the state
in whole or
supported
already
by
established
the state board of
synonymous
taxation.”
It is a term
education.
v. Jefferson
with
school. Sherrard
“public”
(4) All
purchased
under
County Board of
provisions of this
property
Act are the
(1943). It is a term treated
the state. Each
ob-
school administrator
school
mutually
as
exclusive with
taining
through
department
159.030, which
by
provisions
KRS
libraries is custodian of
in his
the books
at
require compulsory attendance
school. He shall issue the books to the
certain
age
school
children with
school for
students according
regu-
to the rules and
which is a child “enrolled
exceptions, one of
lations
by
formulated
state librarian.
or
attendance in a
regular
and in
(5)
appropriated by
Funds
by
parochial regular day
approved
school
assembly to the
of libraries
department
these
of education.”
state board
purpose
expended
for this
shall not be
whose serv-
parochial
or
schools”
“private
any textbooks which
present
particular
the statute
by
ices are aided and assisted
con-
religious philosophy and shall not be
question.
commingled
sidered
with common
ques-
terms of the statute in
Under the
school funds and shall be allocated each
tion,
text-
these
schools” obtain
“nonpublic
school students as
year
requi-
in their schools on
books for children
provided by
regulation
rule'and
administrator
sition filed
the chief school
department
by
of libraries to the extent al-
librari-
with the state
by
appropriation provided
eligible
lowed
of each
school
“the
is then
of this Act.
an. The school administrator
money spent
custodian of the books in his school.” He is
conclusion that
on education is
directed to issue the books to the students
spent exclusively
to be
in the
school
according to
regulations
the rules and
for-
system, except
where the
of taxa-
mulated
the state librarian in consulta-
has been
purpose
tion for an educational
tion
conformity
regu-
with and
to rules and
majority
submitted to the voters and the
lations
established
Board of
State
ques-
the votes cast at the election on the
*3
Education.
tion shall be in favor of such taxation.
Constitution,
184, supra.
Section
issue for
171
only
purposes
Section
is whether the
for
money
being used
a
seeks to evade
question
The statute
public purpose.
depends
on whether
limitations
a series of de-
by
constitutional
is public
“use
one
is calculated to
vices,
point up
do more to
the consti-
which
aid all the
in the
people
state.”
than to avoid them.
problems
tutional
Effron,
Building
Ky.,
Commission v.
310 These include:
355,
Ky.
Nonpublic
836
(1)
department
of libraries
Directing
open
people
schools are
to selected
the textbooks
purchase
and distribute
state,
public
as contrasted with
schools
department
instead of the
of education.
open
people
which are
to “all
in the state.”
But
the textbooks shall conform to
the Kentucky
Section 184 of
Constitution
the state board of educa-
schedule
use
provides:
their
regulations
tion and the rules and
“No sum shall be raised or collected for
in con-
purchase
developed
and use shall be
education other than in common schools
with,
those estab-
sultation
and conform to
until
of taxation is sub-
board of education.
by,
lished
the state
voters,
legal
major-
mitted to the
and the
the books are for
(2) The statute states
ity of the votes cast at said election shall
”
But
it is the
pupils.
distribution to the
be in favor
such
taxation....
school administrator
parochial
In Brown
of New-
v. Board
Education
their
their
charged
requisition,
who is
with
783,
(1900),
we
port,
Ky.
portant
to the several
function
states. Our
devices.
regu-
state constitution
for and
provides
title,
lates this function
under the
primarily
any
“to
public money
prohibits payment
“Education,”
183-189 inclusive.
Sections
men,
in consideration
except
man or set of
requirement
These sections start with the
services.”
for an
Assembly “provide
General
assume, con-
arbitrarily
If we were to
efficient
common
system of
facts,
the statute benefits
trary to the
throughout
They
the state.”
end with the
schools,
only the children in
fund or
requirement
portion
any
that “no
func-
benefit
to the exclusion
hereafter be
existing,
tax now
or that
able to
schools, if we were
tion of the
purposes,
raised or levied for educational
two,
would then
we
separate the
to,
completely
or in
appropriated
by,
shall be
or used
of the Consti-
with
of,
church, sectarian,
be in conflict
aid
or denomina-
is confronted
When the statute
tional school.” A
of these sev-
tution.
reading
fair
is insolvable.
en
the dilemma
compels
foursquare,
sections of the constitution
Crum,
637, 198
In Barker v.
shall be
purposes,
S.W.
levied for educational
211 (1917), the Court
of,
ruled that certain
to, or used
or in aid
appropriated
by,
students were receiving
privi
an exclusive
sectarian,
church,
or denominational
lege
service,
without rendering
so
school.”
as to violate Section 3 of
As a device to avoid First Amendment
Constitution, under a law
which
consideration,
the United States
that a certain number of students from
York
Court has reasoned that under a New
each county
tuition,
would receive free
textbook statute books are furnished to and
room and board and
expenses
travel
at the
the benefit
in private
children
state university. The
explained
schools and not
the schools themselves.
language of Section 3: “If
privilege
Board of Education v.
392 U.S.
granted is not conferred on
all alike
88 S.Ct.
In Talbott we examined the interplay explicit proscrip- much more detailed and between Sections 184 and 186 and arrived tions of the It does Kentucky Constitution. at this definition of the constitutional limi- not. tation on the expenditure of funds for edu- purposes:
cational argument The essence of the child benefit “It is immaterial that money produced by directly is that the aid flows taxation appropriated pur- for school exclusively only indirectly, to the child and poses after the tax is levied or the money all, Obviously if at to the parochial school. becomes, collected. It as soon the ap- as the statute benefits both the children and made, propriation is part of the school private schools who otherwise must fund, and its distribution is controlled by arrangements make other for children these sections of the Constitution. Call- con- get theory to books. has been ing a fund for the equalization of edu- rejected sidered and in v. Jeffer- Sherrard opportunities cational change does not County supra. son Board of character. is spent in precisely held tax could Specifically, Sherrard same manner and purposes for the same of chil- transportation be used for the funds, as other state school except attending private dren schools. This was method of distribution is changed.” permissible “legislation later held as a for of the Kentucky Constitution safety health and of our children” provides: Nichols Henry, “No portion interpreta- fund of tax now exist- But the underlying ing, or that hereafter or be raised tion the Constitution in Sherrard
expressly reaffirmed as still the law where extending transporta- Unlike statute educational, nonpublic schools, to it is purpose statute is tion children safety. impossible anything purpose classify rather than health and textbooks for but educational. As such the statute must ap- educational. Sherrard plies. meet the constitutional limitations of those covering sections of the Constitution “Edu- statute seeks avoid cation.” Section 184 of the Kentucky Constitution quite argue, reasonably, One can that this (“no sum shall be raised or collected (and statute) furthering statute educa- education schools”) other than common benefit, is of public tion whether selective by directing expenditure shall be or not. Unfortunately, approach begs fund, from the general rather than school question, because the Constitution es- taxes. But Con- system and tablishes a school limits prohibits stitution payment public money spending money spending for education “to man or set men except consid- it in schools. of public eration services.” If the exclusive purpose pay of the statute is to the ex- are Nor we concerned with reasons penses schools, private children in parents their children to send provision directly constitutional has been schools, to provide whether a better secular violated. if the Conversely, textbooks also education, to further their educa- aid in the functioning private schools tion, to busing desegregation, avoid themselves, the other constitutional provi- why children are whatever. reason *5 cited sions herein have been violated. nothing private schools would have to do free they with whether or not should have specified The of people Kentucky the by textbooks, them provide if the state could language of the Constitution in terms that the free in the first But place. are clear and unmistakable that the of type re- provisions that Kentucky Constitutional expenditure by authorized the statute in pub- strict for education to spending money question be should unconstitutional. If the schools, how public lic restrict where and people Kentucky change of wish to their education, expended for funds can be matter, position right it is their to do we just why. uphold when cannot So so. find we could some the statute because noted, previously As public purpose. its constitu- benefit in Kentucky public provides Constitution that the because of man- tibnally impermissible can expended be for education other expenditure it the ner in which directs than in when majority common schools purposes, public funds for educational the legal approve expenditure by the voters schools. through nonpublic public If legislature referendum. the v. O’Har As we stated Commonwealth the thinks want people (1953): rah, Ky., 262 S.W.2d change, they place should matter on the oper- whether provisions, “Constitutional ballot. limitation, are ating by grant way their letter according to to be enforced sum, In the Kentucky Constitution by be evaded spirit, and cannot contemplates funds shall be ex which, though not terms legislation pended education. The Common letter, yet in substance trespassing on the every obliged wealth furnish child grant or limitation. destroy and effect schools, this state an education in the validity the statute constitutionally proscribed appraising but it “In form of the through the providing aid to furnish a we must look education. what does. Lewis, 680, 108 to the substance Pollitt statute an eva- may not countenance We cannot The courts people sell Ken avoidance or even an unintentional tucky horse, mule and call it a even if we sion law.” believe the our fundamental public needs a mule.
The decision of the trial receiving court is reversed. school students from the benefit The case is remanded of book loans. to the trial court to judgment enter in conformity with this question The law in does not violate Sec- opinion and granting appellants injunctive be- tion 189 of relief. is funded from program cause the any partic-
revenues and it does not benefit STEPHENS, C.J., GANT, LEIBSON, ular school. VANCE, JJ.,
STEPHENSON concur. the program developed pursuant Under statute, the textbooks in WINTERSHEIMER, J., files a dissent in by Department are loaned AKER, J., which joins. attending Libraries individual children WINTERSHEIMER, Justice, dissenting. The are distribut- nonpublic schools. ed school attended particular by I must respectfully dissent from the ma- only agent student. The school serves as an jority opinion because it is step both out of program. legislative for the loan The true with the times and out of date with the law. system intent for the is the distribution The program established pupils attending without cost to the Grade 1 statute is identical to the textbook loan through Grade system upheld by the United States Su- of this state. textbooks remain the preme Court years ago fifteen in Board of property of the state and must be allocated Education v. 392 U.S. 88 S.Ct. year each to the students of the 1923, 20 L.Ed.2d 1060 schools as permit. funds The majority decision is out of be- step Department of Libraries receives an- cause it substitutes judgment for that of nual reports inventory on of books dis- the General Assembly. legislature tributed for use and student controls within its rights when it recognized the disposition of the books after the use is right of individual students to public text- complete. books. The law specifically provides only The result of the majority opinion is to adopted by those books Textbook *6 State deny the individual school in students the may Commission for Public be Schools nonpublic schools of Kentucky the benefit loaned to a student in a institu- nonpublic of receiving secular, loans of state-approved Therefore, tion. a child can receive a only books. I do not believe that the Constitu- state-approved part secular book as of this State, tion of this States, nor the United program. requires such a penalty for individual stu- procedural point From a of view the trial dents and their parents. judge did not commit reversible error in
The majority’s reliance on v. of granting summary judgment Sherrard a favor Jefferson the on the County Board of state librarian issues of the First 294 469, 171 the Ky. 963 Fourteenth Amendments to Feder- (1943), misplaced. is al The trial was con- judge Private Constitution. pupils school may pub benefit from genuine fronted with no issue of material lic funds expended for a purpose as fact so the of a prevent granting as to long as the source of the tax is summary judgment delegation on the outside of those taxes specifically levied for power and federal questions. constitutional public schools. Nichols v. 301 Henry, 434, 191 S.W.2d 930 ap The funds does not violate the Estab- KRS 171.215 propriated by legislature the pro lishment Clause and the was enti- librarian gram never accrued to the public school judgment tled a as a matter of summary to funds and specifically sepa must kept be law on the First Amendment issue. In rate pursuant 171.215(5). therefrom to KRS the supra, Supreme United States 186 of Consequently, Kentucky the rejected an Establishment Clause ar- Court prevent Constitution does not York textbook loan gument pro- to a New gram under which secular books were fur- not violation the Establishment Clause nished free of charge to all students in the First Amendment to the United nonpublic schools. The court said that Constitution, summary judg the States merely making available to all children the proper. ment of general program benefits to lend school is fundamental that when textbooks charge books free of ais financial benefit to children, are used by they individual school parents the and children and not the to be at may they even if are times school. plan The to Kentucky is identical Tribe, on private property. stored school the New system York in that it distributes American Constitutional Law 14-9 § the books directly to the to student not the school retaining with state owner- The violate the Kentucky law does not The ship. school cus- only is Fourteenth Amendment. There is abso- todian the books. Ownership never no lutely evidence of racial discrimina- transferred to the 171.215(4). school. KRS proposal. tion The Kentucky program every is in mate- The statute does involve respect rial approved the same as the plan delegation power unconstitutional in Allen. up by The tests set Allen are: legislature State Librarian. (1) Is legislative pur- there a secular
pose to the challenged enactment? 171.215 does not violate KRS
(2) Is the
There is no
primary
Kentucky
effect of
enact-
Constitution.
school,
ment
privilege granted
pub-
one
neither advances nor inhib-
special
religion?
private.
legislative
lic or
simply
all
Ken-
decision to share with
individual
The
law to
purpose
Kentucky
tucky school children
secular tools
provide
books,
state-approved
secular
there-
satisfy
public pur-
education in order to
by encouraging the use of
same
pose of
an
and educated
creating
informed
in all
Kentucky schools.
furthers
State
place
of the
citizenry regardless
preparing
its interests in
to intelli-
children
made
books. The
teacher who
use
gently participate as citizens in a democra-
provides for the use of books
law
cy.
primary
effect of the
conformity
all
and is in absolute
people
law neither
nor
religion.
advances
inhibits
purpose
with
true
Con-
recognized
has long
stitution. As noted
State
pursue
goals,
two
reli-
Secondary Edu-
Elementary
Board for
gious instruction and secular education.
Rudasill,
Ky.,
589 S.W.2d
cation
Allen, supra,
at
at
U.S.
S.Ct.
(1979),
judicially-recognized public
is a
there
1927.
so
purpose
youth
in the education
Only
secular books
be loaned under
*7
society.
in a
democratic
participate
truly
law
making
program
effect of the
law
not violate Section
The
does
totally secular
nature. No evidence has
not
Kentucky
because
does
Constitution
presented
been
these
will be
religious
de-
preference
a
constitute
used for
than
anything
purely
other
secular
nomination,
to the
nor is it a contribution
purposes.
Pittenger,
Meek v.
421 U.S.
See
wor-
349, 362,
place
erection or maintenance
a
1753, 1761,
217
95 S.Ct.
44 L.Ed.2d
law,
171.215,
support
or
(1975).
ship
salary
to the
Kentucky
KRS
religion.
to the bus
simply
minister of
Similar
extends
school children
by approved
state-ap
transportation
the same
to borrow
funds
opportunity
Nichols,
statutory
proved
plan
supra,
and state-owned books that made Court
available to
under
does not offend the
school students
individual
some
plans
simply
KRS 157.100. Similar textbook
have
5
because
§
or non-
Meek,
religious
upheld
supra,
may
been
v.
attend
Wolman
beneficiaries
Walter,
229,
public purpose
2593,
97
schools. The
433 U.S.
53
S.Ct.
clearly
(1977).
citizenry
educated
achieving
L.Ed.2d 714
an
law
487
permissible public objective
previously
state must be neutral
in its relations with
throughout
stated
this dissent. This Court
believers and nonbeliev-
groups
has permitted public benefits
flow
Education, 330
ers.
v. Board of
Everson
through a nonpublic channel where
purely
504,
1,
(1946).
91
711
U.S.
67 S.Ct.
L.Ed.
secular purpose is
assisted.
is a
majority
decision in this case
Building
Effron,
355,
Commission v.
giant step backward both in time and in the
which benefit the nonpublic school AKER, J., joins this dissent. See, Nichols, student. supra.
KRS 171.215 does not violate
of the Kentucky Constitution because the
appropriated funds come from the general
revenues of the implies state. Section 184
that funds derived from levies for educa-
tional purposes be limited to those ends.
Certainly funds collected for specific pur- poses can only be used for purposes. those Movant, SULLIVAN, Daniel Jackson hand, On the other taxes collected other general revenue sources are pro- hibited from being used for educational Kentucky, COMMONWEALTH of purposes. The statute in does not Respondent. offend Section 184 of the Consti- Kentucky. any way. tution in
In the words of Hugo Mr. Justice Black *8 Aug. 1983. Court, United States state
power is no more to be used so as to handi-
cap than Par- religions it is to favor them.
ents send their children to
rather than public schools if the school
meets the secular requirements education
which the state has power impose.