Gaffney v. State Department of Education

tax correct been ascertained not have had the received See, Forsheim, at in re Estate of once.” paid also, 969; In re 82Will, 235 N.Y.S. 2d 37 Misc. 2d Smith’s 2d 627, In re 468; N.Y.S. 2d Estate 10 N.Y.S. Harjes, 431; 170 Misc. Jones v. 45 F. 195. Such Hassett, Supp. income benefici adjustment necessary prevent income twice from the same ary receiving property at the expense beneficiaries. residuary determine the amount the allowance or adjust-

To re- ment made, necessary which should be it will be to the is, therefore, ceive evidence. remanded The cause District Court for further proceedings. part reversed part,

Affirmed FURTHER PROCEEDINGS. AND REMANDED FOR Gaffney appellees, et v. State al., William D. appellants. Department al., et of Education

220 W. 2d 550 N. July 25,

Filed 1974. No. General, Clarence A. H. Meyer, Attorney Sheldon, C. Chauncey appellants. Hotz, Jr.,

William & Hotz, Byam Kellogg, J. appellees. J., Spencer,

Heard before Boslaugh, White, C. JJ. Clinton, McCown, Newton, Brodkey, White., C. J.

At issue in under constitutionality, this is the appeal of Nebraska and the Constitution Constitution States, Act,” Loan the United “Nebraska Textbook 79-4,118, ,1971, L. B. Laws sections originally now 79-4,118.01, 79-4,119, 79-1338, R. R. S. Gen- erally, legislative embodied these sec- program statute and in L. B. 659 intended to provide tions financial assistance and sec- nonpublic elementary ondary through of secular textbooks loan by school district boards education. plaintiffs, pursuant 79-4,118, section R. R. requested the free loan of Omaha textbooks Public District, School behalf of their children who on private parochial were re- enrolled Their school. quest Department of was forwarded to the Nebraska Attorney General, Education. On advice from the Department Nebraska of Education the school advised implementing district no take action the Nebraska Loan Act until had been a determination there .Textbook constitutionality. plaintiffs brought of its then declaratory judgment seeking action to have the law judgment declared Court, valid. The District in a en- tered on December 1, 1972, declared the act constitu- appeal tional. On we hold that the Nebraska Textbook Loan Act is unconstitutional under Constitution of Accordingly, judgment Nebraska. District Court is reversed. pertinent part Act, the Nebraska Textbook Loan provides (1)

L. B. 659, 1971, Laws as follows: A. general legislative policy of declaration and to develop and education the resources and skills youths that the state and local communities should primary responsibility public retain education, for and public safety require that the welfare and of the state give programs that the assistance to educational important which are to the national and the defense general (2) the state. 79-4,118, Section welfare of provides R. R. 1943, S. as follows: “Boards of education duty purchase power shall have the and to and to loan grades to textbooks all children who are enrolled in kindergarten public upon twelve of a school and, request, individual children who are enrolled grades private seven twelve of a school which is approved legal operation for continued under and rules regulations by established the State Board Education (c) pursuant (5) subdivision subsection of section

36Í grades enrolled in loaned to children 79-328. Textbooks private textbooks schools shall be seven to twelve such designated for use in which to be loaned textbooks are district. Such

school to such free regulations subject and rules such children ” prescribed by may boards are or such education as provides (3) for the that R. R. 79-4,119, S'. Section equipment, paying “purpose and books, for school may supplies, an order officers draw the school district payment of school for the on books, district treasurer” supplies; provides equipment, and and further each shall from the School school district receive equal Equalization Fund amount Foundation and by purchased loaned cost of textbooks and subject reimbursement, district, certain máximums of provides 79-1338, for R. R. S. then section by provided bookkeeping the funds scheme which by paid (4) title to the Act for are the state. purpose, provide purchase only “to states one loan of textbooks school districts children enrolled * * *” accomplish pur- and to schools; only previous pose 79-4,118 the Act amends sections 79-1338, R. section R. 79-4,119, R. S. Supp., n constitutionality first the issue of discuss under We VII, Article section Constitution of Nebraska. part: Legislature provides “Neither the state nor It city corporation, any county, ever or shall any public grant any appropriation fund, make any public in aid sectarian or land denominational college, educational institution which exclusively and controlled owned the state governmental (Emphasis subdivision thereof.” aor supplied.) provision to state the to us that constitutional

It seems By provisions question. its our terms answer is to (in textbooks) form of sec- furnish paid by public By its terms the cost is a schools. tarian appropriation By funds. its terms textbooks must tax given be used and are in students in educational aid of exclusively institutions which are not owned and con- by governmental trolled state subdivision thereof. question, presented, that, if we can call it here is

fundamentally by presented than the different one state involving action an examination the standards set by up the United States Court under Establishment Clause of First Amendment. It is question true the under the of Nebraska Constitution and the Constitution the United States both relate principle separation to the overall and church by But, terms, state. its the Constitution of Nebraska permit not does of an examination secular sectarian purposes, primary a determination of or incidental bene- balancing fit, or the issues involved state-church entanglement political divisiveness. There is no ambiguity provision. impact in our constitutional language by of any and its can be understood person. pur- literate The standards are not secular pose, primary political aid, or divisiveness state- entanglement. They church are there whether is a public appropriation, grant any whether aid of is in college, per- sectarian denominational school or and, haps importantly, meaning more two terms, these require if would further definition, is fastened unequivocally, fundamentally, permanently down the statement that educational institution which exclusively such aid must be receives owned and con- governmental or a trolled subdivision thereof. statutory provisions open

Constitutional a as matter of to construction course. It would provision statutory to find a constitutional or difficult precise meaning, purpose, its that more and terms. says says. it means and It what means what We proceedings resort therefore the Constitutional purpose only of demon- for the Convention 1919-1920 strating the and transcendent thrust design pro- purpose of amendment. In the and ceedings Convention, the 1919-1920Constitutional the excerpts following pertinent from the Convention proceedings: personally I concerned, far I am “As as prohibit any aid desire to have the Constitution state guise any any to educational under than institution matter, It is if the school. not difficult Legislature fit to find an in the sees excuse interests general guise welfare, to make donations under military training training or not, normal in a what absolutely hostility institution. I have no those invariably bring institutions, it will on of war but the kind stay you mingle that this state should if from, clear fare * * * the state and church to that even extent. “* * * might adopt policy, state desire extending plan instead of its own for normal schools, * * * to utilize schools. denominational * * * opposed principle. “I am to that Taylor: simply “Mr. This It amendment does this: by aiding prohibits the state schools other by than owned and those controlled state its sub- plain It divisions. makes matter and the amend- ought adopted.” (Emphasis supplied.) ment be Vol. 19,19- Proceedings of II, the Constitutional Convention, pp. 2661, 2678, by by conclusion that its terms, We come its by history, purpose, its and the intent of the prohibit was, is, amendment extension of nonpublic schools, funds shape, or form. manner, transpose inject attempt First Amend- carrying purpose, primary on tests of secular

ment religion, governmental aiding entangle- effect political interpretation into divisiveness, ment or provision such ours, as of a constitutional must By rejected. terms, its the criteria of our state permit provision constitutional do examination challenged of the now distinction secular between permit purposes, nor do an examination sectarian of a scheme to determine the elusive distinction between primary or incidental benefit, nor ail examination into: political entanglement, surveillance, the areas By language terms the consti divisiveness. its provision designed prevent tutional reexamina purpose, categorical tion and of its circumvention objective requirement or that there shall be no aid appropriation any learning to or institution of exclusively owned or controlled Almost the state. incredibly prophetic previously quoted is the statement in our of “it 1919-1920, Constitutional Convention invariably bring of war will on kind fare * * stay argument goes from, clear state should on in an avalanche cases and statutes under the of First opened Amendment the door as to how far should be “verge” that Justice Black and when announced Education, 1, 330 U. Everson 504, Board of S. Ct. 91 L. Ed. should reached extended. But be surely no detached examination our constitutional history, provision, its declared can come any conclusion than that the other State Nebraska opening attempted even the door avoid involve legislative, judicial political, disputes ment in determining illusory hairline and involved distinctions degree. per The Constitution neither commands nor any by way public appropriation. financial aid mits says there it, not limit shall no at It does all. excerpt here is this Madison’s Relevant classic in his Remonstrance. It is: “That the same statement authority can force citizen to which contribute three only property any pence of his one may force him to conform establishment, all cases whatsoever.” establishment (cid:127) having similar or identical states constitutional Other provisions to that of Nebraska have come the same

365' expressed. conclusion as we have We cite' hereinbefore only Day, pertinent. those most Va. Almond v. Virginia 419, 89 S. E. 2d court declared uncon appropriating stitutional an act 'funds with which provide tuition, room, institutional books fees, board supplies, nonpublic at had been' which approved by Superintendent of Public Instruction. provision Our constitutional is identical with theirs. Virginia Supreme Said the Court: observed “It will be prohibition that the in Section 141 and in is in broad language. says, appropriation It clusive ‘No shall be made to school or institution learn funds ing exclusively not owned or controlled the State political provisos some subdivision with two thereof exceptions spelled then out. The effect is thus prohibit appropriations all funds institutions learning expressly permitted. other than The- those prohibition against any or all aid to the excluded (Emphasis supplied.) institutions.” In Dickman v. School District No. 62C, Ore. Oregon Supreme passed

366 P. 2d Court on the' constitutionality providing of a statute the furnish-' ing of including free textbooks to children, all those attending nonpublic schools. The Constitution of Oregon provided part: money State in “No shall be Treasury any religious, drawn from the for the benefit of * * theological or institution We the note provision approach pro- constitutional does not even hibitory conciseness, definiteness, and definitiveness of provision. our own constitutional In this case the stat- provided ute loan textbooks individual children, practice, same as here, but observed that in here, as the books would be delivered the authorities charge in integral schools, and would furnish an part, as all do, textbooks in the educational secular effort parochial in the schools. The court held act uncon- closing and in stitutional stated as follows: “We are' parents not unmindful the fact that send their: .who the double children Catholic schools must bear burden only supporting parochial their schools but not public schools as But added is self- well. burden imposed; instruction in schools is available operate only all. Catholic schools because Catholic parents integrated precepts feel that the faith be their should teaching subjects.

into the of secular Those who do not share in this faith cost of not in need share

nurturing it.” provision of Idaho State has constitutional al- Epeldi Engelking, most identical ours. Idaho 390, 488 Idaho, P. 2d Court of striking provision busing parochial down stu- provision, dents, under its state constitutional said as explicit any prohibits follows: “This section terms appropriation by legislature (county, city, or others etc.) any payment anything fund, or in aid any help support any church or to sustain or sectarian By phraseology pro- school, etc. diction vision it is our conclusion that of our the framers con- positively stitution intended more enunciate separation between church and state than did the framers of the United States Constitution. Had that been their intention there would have been no need for this Const, particular provision, because under Idaho art. enjoyment § religious 3, the exercise and faith was guaranteed (comparable religion to the free exercise of guaranteed by the First of the United States Amendment provides person Constitution) it further no could required religious support any attend services particular religion, against pay tithes his consent (comparable the establishment clause the First Amendment). Const, requires § Idaho

“The art. this court to legislation focus its attention on the involved to de- it termine whether ‘aid of church’ and whether help support is ‘to sustain’ church affiliated requirements provi- of this school. constitutional

367 the thus detérmination sion eliminate as test for constitutionality ‘child both statute, benefit’ theory supra, and the Board, discussed Everson v. supra, i.e., Allen, standard of Education v. Board legislation legislative whether the has a ‘secular primary inhibits and a nor effect that neither advances recognize religion.’ In that even context, this while we though legislation attend this does assist students by bringing parochial it aids schools, also those schools parochial very to them whom those students for schools were Thus, established. it our conclusion that legislation, this aid the effect which would be prohibited provisions school, is of Idaho under Const. (Emphasis § plaintiffs supplied.) Art. 5.” escape attempt nevertheless impact language pro

direct our constitutional by arguing extensively furnishing vision textbooks to the is an aid the students' students argument exhaustively and not This school. opinion Rogers in our recent ex rel. answered State p. Swanson, ante v. 219 2d 726. Therein N. W. extensively quoted we both and federal cases explore deny ignores a contention that substance reality form, rhetoric, lead to total would principles circumvention of the of our Constitution and First Amendment to the Constitution the United Rogers supra, ex States. State rel. Swanson, v. Religious said: court “In Committee for Public & Education berty Nyquist (1973), Li 93 S. U. S. Ct. 2955, 37 L. Ed. 2d Court had before it a granting York New tuition law reimbursement tax parents elementary secondary pri benefits to the vate school court students. The ‘As stated: Mr. Justice put quite simply Black in Everson: “No tax in large relig- amount, small, can be levied to they may activities or institutions, ious whatever adopt may called, whatever form teach or practice religion.” U. S. at “

n . controlling question then, is whether here, ‘The parents rather grants to the fact that are delivered compel significance a con- to than as schools is such * * * precisely trary the function is Indeed, it result. provide to to assistance New York’s law By. great majority of are sectarian. schools, the which portion reimbursing parents bill, tuition for a of their financial suffi- the State seeks ciently relieve their burdens to option to that continue to have assure religion-oriented And schools. to send to their children — purposes perpetuate- while for that to pluralistic protect a to educational environment and integrity fiscal of over-burdened schools —. certainly unexceptionable, are the effect of the aid is unmistakably provide support financial for desired to * ** nonpublic, sectarian institutions. “ controlling suggested it has that is of ‘First, been it significance program for New York’s calls reim- already paid for rather for bursement tuition than direct through merely par- are contributions which routed payment schools, of or in ents to the by in advance lieu parents. parent not a conduit, mere we absolutely spend money told, but is free he * * * receives manner he wishes. similar A governs grants inquiry here: if are offered as parents send their children to sectarian incentive by making payments them, cash unrestricted the Establishment Clause is violated whether given eventually way actual dollars their into find grant institutions. the sectarian Whether is labeled subsidy, reimbursement, a or a reward its substantive impact is still same.’ (1973), effect is v. 413

“To same Sloan Lemon 825, U. 93 2982, 939, S. S. Ct. 37 L. Ed. 2d wherein singled has out a class of said: ‘The State its citizens special economic Whether benefit benefit. simple subsidy, as, a tuition as be viewed an incentive parents to their children to sectarian schools, send

369 having its intended as done at bottom so, a reward religion-oriented preserve consequences is Day, 419, 197 also, v. Va. See, institutions.’ Almond 503, Patterson, 255 851; 89 2d v. S. C. S. E. Hartness Supp. 399, Essex, v. 342 907; 179 E. 2d Wolman F. S. 69; L. 61, 34 Ed. 2d affirmed 409 U. 93 S. Ct. S. Supp. Kosydar 744, affirmed, Wolman, v. 353 F. 1021; 37 L. 2d Public Funds

U. 93 S. Ct. Ed. Marburger, Jersey for Public Schools New (1973), People Klinger Supp. rel. v. Howlett 29; ex F. Ill. 2d 305 E. 2d 129. N. ' arising “Although questions dealt these cases with First Amendment the Constitution under the they specifically tuition allow States, hold that United parents are, students! funds ances private appropriations schools, of, effect, in aid for, impermissible. allowance Direct and as such are distinguished such tuition the students as to funds parents present. is The factors their immaterial. same attempt patent that It a to sanction indirection is (Emphasis supplied.) which the Constitution forbids.” Liberty Religious for & Committee Public Education Nyquist (1973), Ed. 413 U. 93 Ct. 37 L. S. nonideological repairs dealt for 2d and with subsidies sup and instructional materials and maintenance, grants. plies, as tuition The other cases cited as well grants mainly some with textbook with tuition and deal to students. Besides the other lessons that these loans indisputable channeling it is the teach, that aid cases parents or to students such is used as the the when integral part in education received the an the impermissible parochial circumvention is school, an and is unconstitutional. emphasize must cases that the court examine

All these activity than of the aided rather manner the the character n given. point out further in which aid is We form the parent sending purposes the main that one early parochial a school is to insure' the child his pro- religion. Assuming inculcation of textbooks equal absolutely mote the and notion of neutral program, or the secular educational the reimbursement loan of textbooks is students augmenting of religious training. school secular education with by aiding parents state, and they may though textbooks, be, students secular providing program aiding church and religious advancing education. It fact is clear to us the goes originally that the benefit of the secular textbooks directly the student than is a rather the school cleansing mere removing conduit 'does not have effect identity the ultimate benefit being public school as funds. And interwoven with situation, realism demands that we see that free textbook may reasonably probable be, loans and it is are, given the circumstance which determines whether a pupil parochial will remain ain school or in granting pa- school. free textbook loans to a strength rochial school student lends although indirectly, strength and, the school support lends sponsoring to the sectarian institution. We hold, VII, therefore under Article section Constitution of Nebraska, that L. B. 659 is unconstitu- holding tional that the District Court error contrary. to

Having reached this decision under the Constitution unnecessary pass we Nebraska, find on or de- question termine the of whether Nebraska Textbook Loan Act is unconstitutional under the Establishment Clause the First to Amendment the Constitution of the United States. judgment finding

The of the District Court the Act constitutional is reversed and the cause remanded.

Reversed and remanded. J., dissenting. McCown, J., joining. Clinton, majority opinion 1971, B. 659, L. Laws held things. unconstitutional, be imposes two First, does it

371 duty upon purchase loan and of education boards through kindergarten grades all in textbooks to children request, upon public 12 individual and, schools grades to7 in loan textbooks to children enrolled operation approved private 12 under of those 79-328(5) (c), section R. R. S. 1943. textbooks designated public in the be loaned for use were those Secondly, provides schools. it that funds for districts should reimbursed purchased loaned to both cost of the textbooks ex- not These state funds were classes students. pupil average per equal to an ceed amount $15 grades 7 12 in the for those enrolled in the district for certain named schools within year years per pupil per there- and not to exceed $10 after. among others, to is,

The act recites its that adequate opportunities more afford educational important general purposes these welfare the state. legis- constitutionality

The determination of the may require sec- act the examination several lative In tions of our Constitution. this case seems clear majority only language has had to twist disregarded VII, 11, section Article but also has provisions my judg- pertinent which, constitutional doubt as to the ment, seem remove whatsoever interpretation VII, of Article correct construction and paid Likewise, have scant attention section authority weighty to be the most direct and what seems point. the latter assertion We will discuss first. 1 of Education Central School Dist. No. Board App. 69, 2d 2d 20 N. Y. Allen, Div. N. Y. S. 2d E. there 281 N. Y. 2d 2d N. York statute which substance considered New provision involved, as one here is the same just York as or more restrictive New Constitution provision. own constitutional York our New than 372 constitutionality Appeals upheld

Court statute under the the provisions of the state Constitution. separate question Its decision on of con but related the stitutionality under Establishment the the Clause by Supreme First Amendment was the Court reviewed of the U. Allen, United States in Board of Education v. 236,

S. Ct. Ed. 1060. The court L. 2d necessarily had to consider accrued whether benefit to the schools. In- deter words, it had to mine whether there The- aid to schools. concept considered United Court essentially States was as that in the same involved question state constitutional and the here. one before us Appeals The New York Court said: “Since we n the, must reach merits in case, come we question whether this statute violates section 3 of article: XI of York State New Constitution: ‘Neither any property- state nor subdivision thereof shall use its any public money, permit or credit- or authorize or directly indirectly, be used, either aid or mainte- inspection, nance, other than for the examination or any learning wholly part school or institution of or in any religious under the control or direction of denomina- tion, or in which denominational tenet doctrine taught is purpose underlying

“The section 701, found Legislature’s (L. supra), § own words ch. - any interpretation belies other than that the statute- upon is meant to bestow a benefit all regardless children, of their school There affiliations. suggestion can no serious the declaration of- Legislature awas verbal smoke screen designed to obscure nefarious scheme circumvent York State Constitution. New No one the last: Century program third of the 20th can doubt that a improving quality aimed at of education in all schools legitimate a matter of State concern. parochial no there is intention “Since to assist schools'

373' a collat- as. to those schools is such; accruing benefit - . canndt' be- and, therefore, statute, eral éffect of the directly or in-' giving- classified as properly ' n directly..... nn “Having decided entails no aid that section 701 no schools, hold that there is parochial we' thus under the establishment Federal constitutional question of makes no clause the First Amendment. The State affirmation of beliefs or activities religious within neutral' completely schools. Section-'701 remains public available secular respect religion, merely making with at of the individual and textbooks student request no about school attends. what asking question Despite' he is flexibility English language, impossible, that textbooks to all' tó conclude loaning nonreligious school, those who students, including parochial attend or religion establishes constitutes the use public funds to aid v. Board of religious (cf. Everson 1, 16, Board of Educ., 18).” 330 U. Education of supra. Central School Dist. v. Allen, No. Court of the States “The United said: 701 was stated York New

express purpose § furtherance educational Legislature oppor- of the available to the young. Appellants tunities have shown necessary effects the statute nothing us about contrary that to its stated purpose. merely law all available to the benefits of a general makes children to lend school books free of charge. Books are' program at request pupil furnished ownership technically, remains, at least the State. no Thus are furnished parochial schools, funds books is to children, benefit parents financial tó. not books make free it more that: Perhaps likely schools. attend a choose to sectarian school, children but some state-paid bus true of fares in that Everson alone demonstrate an unconstitutional does de- for a religious institution.” Board of gree supra. Allen, Education prohibits “appropriation Our . own Constitution . . [the] aid of institution.” In 1972the constitutional ... provision “Appropriation provide: was amended public funds shall not be made to or institu- learning exclusively tion not owned or controlled political the state aor subdivision thereof.

“All schools shall be free of sectarian instruc- tion. accept money property

“The shall not to be purposes; Legis- used for sectarian Provided, may provide may money lature the state receive government from the federal and distribute it in accord- grants, ance with the terms such no federal but any political funds of the state, subdivision, any public corporation may be added thereto.” Art. §VII, Constitution Nebraska. question,

We must decide of course, under the language of the Constitution in at effect the time of the enactment of the statute. Central Nat. Bank v. Sutherland, 113 Neb. 202 N. W. 428. majority opinion disregard signifi- to chooses

cantly, stipulated to believe, we fails the mention facts upon though which the tried case was as those facts stipulation provides: plain- were irrelevant. The “The in the attending tiffs case of each of their children private grade private high schools and schools and on required of each of behalf their children have been purchase or rent text books use for in their children’s stipulated classes.” is further It of the cost “book of fees” is amount for each in the child. “The cost $25 providing continuing of textbooks has been a and will upon plaintiffs burden financial and further a of class members intended to be aided L. B. clear that Textbook It is the 659.” Loan Act does not any obligations. relieve the of of its It or no aid benefit and receives obtains no more dollars legislation ques- otherwise have. than it would public clearly legislation to be apply- seems tion benefit

375 ing gives a certain alike children all schools and parents modest of from measure financial relief to all the tax legislation sources which all alike contribute. Such long legislative judicial history

has of approval going back at least Education, Borden v. Louisiana of 168 State Board

La. 67 A. L. R. the Court of Louisiana considered statute similar the comparable one here and a state considered constitutional provision. pro- The court said: 8 of article 4 ‘Section among things, taking money hibits, treasury, public directly indirectly, or in aid of any religion, church, sect, or or in aid denomination any priest, preacher, religion minister, or teacher of private, pur- or such, as for charitable, or benevolent poses any person community, excepting or certain authority. institutions conducted under Section right worship 4 of article 1 relates accord- God ing pro- conscience, to the dictates one’s own passage establishing religion, hibits laws or the granting preferences or thereof, free to, exercise against, making any church, sect, or discriminations or religious prohibits 13 of creed. Section article using any private funds for or prohibits, among school. Section of article 4 sectarian other things, lending, pledging, granting or funds, property, things any credit, of value of the state or of corporation person political per- thereof to or for corporation, public private. association, or sons, opinion, majority which is “In our the view of the foregoing acts violate court, these none of provisions. may One constitutional scan the acts in any money appropriated to ascertain where vain purchase of school books use church, appropria- private, sectarian, or even school. The specific purpose purchasing made were tions the use of the school children of books of cost to them. It was for free their benefit state, 376 resulting áppropríations benefit the state school, True,

were made. public attend these children some private, nonsectarian, latter, sectarian or their books are be them for furnished and use, they schools, free of cost, The whichever attend.' appropria- however, are not the beneficiaries these They' nothing tions. obtain nor are them, single obligation^ relieved of a of them.” because Supreme -This of the Louisiana decision Court was by Supreme reviewed of the United States Court 370, in Cochran 281 50 Education, Board U. S. v. 913, Ct. 74 L. Ed. to determine it violated whether the Fourteenth Amendment to the Constitution of the opinion United Hughes, In an States. Mr. Chief Justice appel- the court said: “The contention of the under lant for the the Fourteenth Amendment is that taxation taxing

purchase of school books constituted private private property purpose. for a Loan Associa- Topeka, tion v. Wall. is said private, religious, sectarian, system in the educational of the embraced by furnishing State text-books- free to the children attending operation such schools. The and effect legislation question in described were Supreme (168 p. La., Court the State as follows 1020).” quoted portion opinion The court then we have which earlier set forth. n direct and construction clear contained in the Supreme language the two Courts-and the Su- foregoing preme United in the Court States cases sharp- contrast to the is in strained construction relied majority opinion on this case in effect which equates and the institution. the children point. of state Courts

Other decisions Opinion Justices, 109 N. See, H. 258 A. 2d (1969); O’Connor, v. 104 R. I. Bowerman Mississippi (1968); A. 2d 82 Chance State Textbook Miss. Board, 190 200 S. 706. The R. & P. New Hampshire Supreme “Our Constitu- said: State Court of the activities schools bars aid to sectarian tion institutions of religious It is sects denominations. public opinion a our education serves that since secular money may by supported purpose, tax if sufficient be prevent safeguards provided inci- more than religious or denom- a sect dental and indirect benefit to ination. . . . provide Bill for loan sale

“Senate 327 would nonpublic pupils in of enrolled school textbooks to confined to those schools. Since the books would be required presum- public schools, in would use subjects. ably only our include books secular on opinion constitutional. if enacted would be this bill supra; Board v. Allen, of Everson Board of Education supra; Opinion Justices, of the 99 N. Y. Education, supra; supra. Opinion Justices, of the 99 N. H. presumes loaned Our will be answer books charge, pupils, this bill cost, free provides.” or sold at as supra. Opinion of the Justices, ' Mississippi approved plan a sim- Court by Legislature. ilar that authorized our Pertinent own portions as found statutes state Constitution opinion provided in are these: “It in is further any section 208 thereof: appropriated ‘. . . funds be nor shall school, toward sectarian receiving ap- or to school that at the such time propriation is conducted as free school.’

“Chapter 202, Laws is an act to establish State' Rating Purchasing power Textbook Board, with purchase to select, and distribute free textbooks loan- ing through eight grades pupils same to the first elementary qualified all schools located in the state. provides 23 of act “Section “ as follows:. plan adop- intended to

‘This act is furnish a for the purchase, distribution, tion, care and use free text- pupils elementary loaned to the be books Mississippi. “ provided by ‘The shall books herein the board distributed and loaned free of cost to the children eight grades elementary first in the free elementary schools of state, and all other schools lo- elementary state, cated which maintain educa- equivalent tional standards to the standards established department the state education ele- ” mentary Mississippi schools.’ Chance v. State Textbook supra. R. P. Board, & pertinent provisions

We now consider the effect of own our Constitution in addition VII, to Article sec- doing quote tion and in so our dissent State Rogers p. ex rel. ante Swanson, N. 2d 125, 219 W. majority opinion ignores “The completely 726: the mandate of our own Constitution contained in Article provision I, section 4, for freedom of which after the worship, prohibition against conscience, and the com- pulsory any place worship attendance and of of prohibition and of the discrimination on account of re- ligious morality, goes ‘Religion, say: of it, belief or lack on to knowledge, being

and however, essential good government, duty legislature it shall the of the pass every protect religious suitable laws to denomina- peaceable enjoyment tion in the of its own mode of public worship, encourage and the schools and means (Emphasis supplied.) instruction.’ The words in of directing passage of this the section Constitution of the encourage certainly suitable laws to schools mean more statutory encouragement. a than mere exhortation of ‘pass only The term suitable laws’ can mean laws which implementation. require an effect which have section This of our Constitution cannot refer to the common mandatory of state, the schools of establishment required specific provisions is which VII, of Article Legislature pro- section which reads: ‘The shall for the vide free instruction common schools of persons ages of this state twenty-one years.’ all between the of five and ” I, Article section therefore can instruction,” only means refer to “schools lawfully operated under schools other than the state. laws of this obviously limited not state’s interest education Meyer-

to children in attendance at schools. (1962), 115 N. W. 2d State, korth v. Neb. concerning regulations held that the statutes we parochial, providing private schools denominational, teach- compulsory attendance, certification supervision operation schools of said and for ers, a valid exercise and were are unconstitutional holding we said: police power In so state. good up a standard statutes set “The above-cited groups They churches and allow education. They require each on same basis.

establish schools exposed number a certain to a school child to be part of parochial Private and months. the § system also, 79- See, state.” educational R. 1701, R. constitutionality not, act does loan textbook totality pertinent light constitutional

in the all doubt- authorities, seem at provisions cited and the constitutionality doubt- act were if Even ful. on applicable salutary stricture there would be ful times us: powers, enunciated innumerable our own upheld by uncon- the courts unless to be Statutes beyond v. Standard doubt. State reasonable stitutional (1900); Smith 28, 84 N. 61 Neb. Co., W. Oil Ry. 719, 157 N. W. Chicago, Co., 99 Neb. M. & O. P., St. (1916); State, 186 West, Inc. v. Markets Central Dwyer (1970); v. Omaha- 2d 880 180 N. W. Neb. Douglas Building 30, 195 Commission, 188 Neb. Public (1972). 2dW. N. clearly Legislature within hold that the would

We authority enacting the Nebraska its constitutional 79-4,118, R. R. S. Act, section Loan Textbook public purpose and does a lawful it serves because private school. fact aid the

Case Details

Case Name: Gaffney v. State Department of Education

Court Name: Nebraska Supreme Court

Date Published: Jul 25, 1974

Citation: 220 N.W.2d 550

Docket Number: 38957

Court Abbreviation: Neb.