Lead Opinion
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT DENYING RELIEF PRAYED FOR BY PLAINTIFFS
I.
Plaintiffs challenge those statutes of the State of Missouri which provide for transportation of public school pupils to and from school but which do not provide like transportation for the pupils of church-related schools. Plaintiffs contend that this denial of transportation violates particular provisions of the United States Constitution. We disagree.
Plaintiffs Urban Luetkemeyer and his children reside in the Cole County, Missouri, R-III School District. That school district transports to and from school at public expense children attending the public school. It refused, however, to transport plaintiffs’ children to and from St. Martin’s School, which is operated by the local parish of the Catholic Church and which they attend. That refusal was based upon the absence of any specific statutory authority to expend public funds for such transportation; upon provisions of the Missouri Constitution prohibiting the use of state funds, directly or indirectly, in aid of religion or religious institutions; and upon the decision of McVey v. Hawkins,
The plaintiffs contend that the transportation of school children is a public service primarily benefiting children and their parents and not parochial schools. The denial of that benefit, plaintiffs contend, results in an arbitrary and capricious classification which unconstitutionally denies plaintiffs equal protection of the laws, denies plaintiffs of liberty without due process of law, in that it forces them to forego the exer
The basic questions presented are whether the State of Missouri, once it determines to provide bus transportation only to public school students, is compelled by the Constitution of the United States to also provide like transportation to students who attend a parochial school; and whether the Missouri law which does not so provide must be declared to be repugnant to the Federal Constitution.
The relevant facts were wholly stipulated. Our findings of fact therefore quote or paraphrase the stipulation of the parties.
II. FINDINGS OF FACT
1. The plaintiffs are Urban Luetkemeyer and his children, Kennan and Jacqueline, ages 14 and 10, respectively. The Luetkemeyers live in a rural area of Cole County, Missouri, adjacent to U. S. Highway 50. Their home is approximately 200 yards from the highway.
2. The Luetkemeyers are members of the Catholic Church and the Luetkemeyer children attend St. Martins School which is operated by St. Martins Parish of the Catholic Church. The school is located in the unincorporated village of St. Martins on U.S. Highway 50, approximately 2 miles west of the Luetkemeyer home. St. Martins School is an elementary school which offers a curriculum for grades 1 through 8. It would violate the religious conscience of Urban Luetkemeyer to send his children to public schools for their education as long as a Catholic church-related school is available on a day school basis for the education of his children.
3. Cole County R-III School District is a public school district which operates an elementary school in Centertown, a village located on U. S. Highway 50, approximately 7 miles west of the Luetkemeyer home. Both St. Martins School and the Luetkemeyer home are within the boundaries of Cole County R-III School District. During the 1970-1971 school year, there were 207 children enrolled in grades 1 through 8 in attendance at Cole County R-III School. During the 1970-1971 school year there were 205 children enrolled in grades 1 through 8 in St. Martins School.
4. Local public school districts with the assistance and cooperation of the State of Missouri through the State Board of Education must provide transportation to and from home and school for all children living more than 3% miles from school and may provide transportation for all children living one mile or more from school pursuant to Section 167.231, R.S.Mo., 1969, V.A.M. S. The expense of the transportation is paid by state funds and local funds derived from state and local taxes pursuant to Sections 162.161 and 167.251, R.S. Mo., 1969, V.A.M.S.
5. Cole County R-III School District with the assistance and cooperation of the State Board of Education has established and operates a system of school bus transportation to and from home and school for children who attend the public school maintained and operated by the district. Free transportation is offered to all children who live one mile or more from school. During the 1970-1971 school year, the average daily number of children enrolled in grades 1 through 8 of the Cole County R-III School District who were transported to and from home and school was 130.35. Five buses with passenger capacity ranging from 66 to 48 passengers each and four other vehicles with the capacity of 12 passengers each are operated by the district for the transportation of children to and from school. Cole County R-III School District was reimbursed by the State of Missouri for all of the total cost of providing said transportation (except for $126.96, which was the cost of transporting two pupils who were not eligible for state transportation).
6. In 1970 Urban Luetkemeyer paid more than $985.00 in real and personal
7. A school bus route established and operated by the Cole County R-III School District passes by a point on U.S. Highway 50 which is approximately 200 yards from the Luetkemeyer home and continues on U. S. Highway 50 and passes directly by St. Martins School which is attended by the Luetkemeyer children. The Luetkemeyers have demanded of the members of the Cole County R-III School Board that transportation be provided to the Luetkemeyer children to and from their home and St. Martins School on the existing facilities and routes operated and maintained by Cole County R-III School District. On January 12, 1971, the Luetkemeyers made an unsuccessful effort to board a Cole County R-III bus for transportation to St. Martins School. The school district’s officers and employees have refused to allow the Luetkemeyer children to use the school district bus facilities for the purpose of going to and from St. Martins School from the Luetkemeyer home. The officials of Cole County R-III School District refused to allow the Luetkemeyer children to use the bus facilities in going to and from St. Martins School for the reason that in their opinion the law of the State of Missouri prohibits the transportation at public expense of children to and from a non-public school. The school district is supported in its refusal to provide transportation of children going to and from a non-public school by the Executive Department of the State of Missouri in its administration of the statutes, by the Judicial Department of the State of Missouri in its interpretation of the statutes, and by the Legislative Department of the State of Missouri in its appropriation of tax moneys to fund the transportation of children to and from home and school.
8. The route which the Luetkemeyer children must follow in going to and from home and St. Martins School is on U.S. Highway 50 in a rural area. There are no paved sidewalks or walkways, traffic control devices, and protected pedestrian crosswalks on the route. There are generally no sidewalk or walkways, traffic control devices and protected pedestrian crosswalks on the streets, roads and highways through the Cole County R-III School District. The average daily traffic on the route is 5,650 vehicles.
9. St. Martins School is a nonprofit school operated by St. Martins Parish of the Catholic Church. The sole source of income for the school is the contributions and donations from patrons and friends and fees charged its pupils.
10. The St. Martins School does not provide transportation to and from home and school. The parents or guardians of the children have the sole responsibility of getting the children to and from school. Approximately 100 children attending St. Martins School live more than one mile from that school and if transportation were provided to children attending St. Martins on the same basis as is provided to children attending Cole County R-III School, approximately 100 children would be eligible for transportation. Most of the children attending St. Martins School who live one mile or more from the school are located along existing school bus routes.
11. The free transportation provided to children who attend Cole County R-
12. School bus transportation is a safer means for pupils to travel to school than private vehicle or pedestrian travel. The evidence shows that buses are subject to statutory and regulatory safety standards to which private vehicles are not subject, school bus traffic is governed by special traffic control requirements, and school bus drivers are subject to special qualification standards. The probability of accident and injury in going to and from school for pedestrian pupils increases with the distance the pupils must travel between home and school, given a certain community with certain hazards of pedestrian travel.
13. The total estimated expenditure for public elementary and secondary education in the State of Missouri in 1970-1971 is $875,300,000. During the 1970-1971 school year the total cost of transporting pupils enrolled in grades Kindergarten through 12, inclusive, of public schools in the State of Missouri by public school districts was $33,-028,006, or 3.7% of total expenditure for public schools. The average cost per pupil for transportation was $66.72.
14. The total cumulative enrollment in public schools, grades Kindergarten through 12, inclusive in the State of Missouri for the 1970-1971 school year was 1,084,833 pupils. During the 1970-1971 school years the number of pupils enrolled in Grades Kindergarten through 12, inclusive, of public schools and transported at one time or another by public school districts in Missouri was 585,650. During the 1970-1971 school year the average daily number of pupils enrolled in Grades Kindergarten through 12, inclusive, of public schools transported by public school districts in the State of Missouri was 495,024. Therefore, 45.6% of the public school pupils were transported.
15. Based upon data reported to the State Department of Education under the Elementary and Secondary Education Act of 1965, the total number of nonpublic schools in Missouri during the 1969-1970 school year was 553, which number was composed of 385 Catholic schools, 80 Lutheran schools, 3 Jewish schools, 12 Amish schools, 10 Seventh Day Adventist schools, and 63 other nonpublic schools. Based upon data reported to the State Department of Education under the Elementary and Secondary Education Act of 1965, the total number of nonpublic school pupils during the 1969-1970 school year was 134,593, which number was composed of 116,213 pupils attending Catholic schools, 10,844 pupils attending Lutheran schools, 235 pupils attending Jewish schools, 242 pupils attending Seventh Day Adventist schools, and 7,059 pupils attending other nonpublic schools. These figures are based upon reports from 85% of the nonpublic schools. Of the schools reporting, 94.8% of students attending nonpublic schools are attending church-related schools.
16. As noted above, 45.6% of the children attending public schools in the State of Missouri during the 1970-1971 school year were transported. If the same percentage of children attending nonpublic schools in Missouri would be eligible for transportation, the estimated average daily number of children attending nonpublic schools to be transported would be 61,374. The estimated maximum cost of transporting nonpublic school children, based upon the average cost per child of transporting public school children would be $4,094,872 per year.
17. The transportation of children to and from both public and nonpublic schools at public expense is provided for in 27 states. The 1970-1971 public school enrollment in these states was 30,759,554. The 1970-1971 enrollment in Catholic schools in these states was 3,693,818. Twenty-three states do not provide transportation at public expense for children going to and from nonpublic schools. The public school enrollment in these states for 1970-1971 was 16,-708,281. The 1970-1971 enrollment in Catholic schools in these states was 624,978.
III. CONCLUSIONS OF LAW
A. Child Benefit Theory
Plaintiffs place great reliance on the “child benefit theory” spelled out in Everson v. Board of Education,
Norwood v. Harrison,
Clearly, the State need not. Even as to church-sponsored schools whose policies are nondiscriminatory, any absolute right to equal aid was negated, at least by implication, in Lemon v. Kurtzman,403 U.S. 602 , [91 S.Ct. 2105 ,29 L.Ed.2d 745 ] (1971).
See also footnote 7 in Norwood in which the Court explains in detail how appellees in that case, as plaintiffs in this case, “misperceive the ‘child benefit’ theory of our cases decided under the Religion Clauses of the First Amendment.”
The “child benefit” theory must be considered in the context of the cases which required the Court to define permissible areas of State aid to religious institutions. The language of those cases may not be taken out of context to support the notion that a State must provide transportation for all pupils, regardless of whether they attend a religious or public school. We do not suggest that the fact that state benefits are distributed to children rather than to schools, and the fact that the benefit is essentially nonreligious in character may not be relevant in regard to proper analysis of other constitutional questions presented in this case; we conclude only that the “child benefit theory,” as set out in Everson and Allen, standing alone, does not support plaintiffs’ basic contention.
B. Equal Protection
Plaintiffs contend that the transportation of school children is part of a comprehensive statutory and regulatory scheme designed to provide for the safety and welfare of children traveling to and from school. Plaintiffs argue that the fact that this public service is denied to the plaintiff children solely because they are enrolled in a nonpublic school “is an arbitrary and unreasonable classification and unconstitutionally de
The plaintiffs direct attention to language in Shapiro v. Thompson,
Chief Justice Burger pointed out in Norwood that Pierce “said nothing of any supposed right of private or parochial schools to share with public schools in state largesse, on an equal basis or otherwise.” He added:
It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause. It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.93 S.Ct. at 2809 .
San Antonio Independent School District v. Rodriquez,
In regard to the appropriate standard to be applied in a ease involving public education Rodriquez concluded that “this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights.”
We conclude, consistent with the rationale of Rodriquez, that the proper standard to be applied is the traditional test set out in McGowan v. Maryland,
The constitutional policy of our State has decreed the absolute separation of church and state, not only in governmental matters, but -in educational ones as well. Public money, coming from taxpayers of every denomination, may not be used for the help of any religious sect in education or otherwise. [163 S.W.2d at 614 ]
The Constitution of Missouri, Section 5, Art. IX, Y.A.M.S. provides that tax revenues for schools “shall be faithfully appropriated for establishing and m'aintaining free public schools, and for no other uses or purposes whatsoever.” In McVey v. Hawkins,
A three-judge district court in the Eastern District of Missouri held that this purpose, when implemented to prohibit the use of public funds for private schools, was legitimate and constitutional in Brusca v. State of Missouri ex rel. State Board of Education,
We find nothing arbitrary or unreasonable in the determination of the State to deny its funds to sectarian schools or for religious instruction. So long as no invidious discrimination exists, the courts may not interfere. Cf. McGowan v. Maryland,366 U.S. 420 ,81 S.Ct. 1101 ,6 L.Ed.2d 393 . Here, there is no discrimination in the legal sense. All children of every or no religious denomination have the same right to attend free secular public schools maintained with tax funds. The fact that a child or his parent for him voluntarily chooses to forego the exercise of the right to educational benefits provided in the public school systems does not deprive him of anything by State action. [332 F.Supp. at 279 ],
Plaintiffs base a large portion of their argument on their reading of Everson v. Board of Education, supra, and Board of Education v. Allen, supra.
The Court’s discussion of those cases in Lemon v. Kurtzman,
C. Due Process
Three of the six points of plaintiffs’ brief purport to present due process questions. Plaintiffs contend that they were denied due process (a) “for the reason that in order to obtain the benefits of this public service (transportation of school children) plaintiffs must wholly forego their fundamental constitutional right to select the school of their choice;” (b) “for the reason that the State conditions the receipt of the benefits of this public service (transportation of school children) upon plaintiffs’ foregoing the fundamental constitutional right to free exercise of their religion;” and (c) for the reason that the denial to plaintiffs of bus service “on an equal basis with other citizens constitutes the arbitrary taking of his property without compensation and deprives him of his property without due process of law.”
Plaintiffs cite and rely primarily on their reading of Pierce v. Society of Sisters,
The foundation upon which plaintiffs’ school choice argument rests is that Pierce either created or recognized the notion that the constitutional prohibition which voids a state requirement that all children attend a public school commands a further conclusion that there is something in the Constitution which requires that all services, specifically, bus transportation, which the State may decide to furnish public school pupils must also be furnished parochial school pupils.
Pierce, in our judgment, cannot be so broadly read. Indeed, the Court in Norwood v. Harrison stated that “the Court’s holding in Pierce is not without limits.” Indeed, Norwood expressly adopted Mr. Justice White’s observation in his concurring opinion in Wisconsin v. Yoder,
But Sherbert also presented a very narrow question under the Free Exercise clause and does not support plaintiffs’ argument that the receipt of a public service is unconstitutionally burdened. The Court made clear in Sherbert that:
Our holding today . . . but reaffirms a principle that we an*385 nounced a decade and a half ago, namely that no State may ‘exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.’ Everson v. Board of Education,330 U.S. 1 , 16, [67 S.Ct. 504 , 512,91 L.Ed. 711 ]. (emphasis the Court’s.) [374 U.S. at 410 ,83 S.Ct. at 1797 ].
Sherbert involved a request for dispensation from a general regulatory law; not a request or demand for a public service. While the exemption or dispensation would clearly result in some aid to a particular individual, it did not involve the expenditure of state funds which would, in fact, indirectly aid a religious institution. The Court simply did not have the latter question before it. Justice Douglas appropriately pointed out in his concurring opinion, that “this case does not involve the problems of direct or indirect state assistance to a religious organization.” [
In the final analysis, it must be recognized that Sherbert simply held that the disqualification of the Seventh Day Ad^ ventist plaintiff as a beneficiary under the South Carolina Unemployment Compensation Act could not withstand constitutional challenge because South Carolina could not justify that disqualification by a “compelling state interest in the regulation of a subject within the State’s constitutional power to regulate .,” within the meaning of the familiar standard articulated in NAACP v. Button,
Braunfeld makes clear that the economic effect of a statute is not an appropriate test for determining whether the challenged legislation violates the Constitution. The Court took note of the fact that “we are a cosmopolitan nation made up of people of almost every conceivable religious preference” and that “[Consequently, it cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions.” [
United States v. O’Brien,
To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the*386 Government; if it furthers an important or substantial governmental interest ; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. [391 U.S. at 376-377 ,88 S.Ct. at 1679 ]
The most recent case which, as a matter of result, fell on the same side of the line as Sherbert, is Wisconsin v. Yoder,
We conclude without hesitation that the long established constitutional policy of the State of Missouri, which insists upon a degree of separation of church and state to probably a higher degree than that required by the First Amendment, is indeed a “compelling state interest in the regulation of a subject within the State’s constitutional power,” within the standard enunciated in NAACP v. Button,
The fact that Missouri has determined to enforce a more strict policy of church and state separation than that required by the First Amendment does not present any substantial federal constitutional question. The Supreme Court has clearly indicated-that there is an area of activity which falls between the Establishment Clause and the Free Exercise Clause in which action by a State will not violate the former nor inaction, the latter. For example, Walz v. Tax Commission,
Much the same argument as that made by plaintiffs in this case was made in Di Censo v. Robinson,
We reject the notion that the Free Exercise Clause demands affirmative state action to accommodate . personal evaluations when society at large has accepted the premise that religious and secular education can be successfully separated. [316 F.Supp. at 123 ].
Missouri has determined that it will not extend bus transportation to parochial school students. Nothing in the federal Constitution requires that it do
The plaintiffs’ final argument under the last point of their “due process” arguments is that there is an unconstitutional taking of the plaintiff’s share of tax revenues when he does not receive benefits provided from the general tax revenues. The only case cited by the plaintiffs, Detroit Edison Co. v. East China T. P. School District No. 3,
IV. CONCLUSION
We find and conclude that the Constitution of the United States does not compel the State of Missouri to provide equal transportation services to private and church-sponsored schools and that it may, as it has, elect to provide such service only for its public schools. While we recognize that some of plaintiffs’ arguments may be based upon grounds other than the First Amendment, we nonetheless deem it appropriate to state that the following language from Mr. Justice Douglas’ concurring opinion in Sherbert is generally applicable to this case:
This ease is resolvable not in terms of what an individual can demand of government, but solely in terms of what government may not do to an individual in violation of his religious scruples. The fact that government cannot exact from me a surrender of one iota of my religious scruples does not, of course, mean that I can .demand of government a sum of money, the better to exercise them. For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. [374 U.S. at 412 ,83 S.Ct. at 1798 ]
Accordingly, and for the reasons indicated, it is
Ordered and adjudged that Sections 167.231, 167.251, 163.161) 163.061, 165.-011, R.S.Mo., V.A.M.S., and related statutes should be and are hereby declared not to be unconstitutional. It is further
Ordered and adjudged that the plaintiffs’ demand for an injunction enjoining the enforcement of Missouri Statutes 167.231, 167.251, 163.161, 163.061 and 165.011, R.S.Mo., V.A.M.S., should be and is hereby denied. It is further
Ordered and adjudged that the plaintiffs’ prayer for damages should be and is hereby denied.
Notes
. Most recently the Supreme Court of Missouri has held in McDonough v. Aylward,
Dissenting Opinion
(dissenting).
I respectfully dissent. I do not think the State of Missouri can validly claim, in the face of the Fourteenth Amendment’s Equal Protection Clause, that it has a valid purpose in promoting the separation between church and state by denying bus transportation for children to church-sponsored schools. Bus transportation is furnished as a health, safety, and welfare measure to those children residing beyond a stated area of the school, and the basis and reason for such salutary service should extend to all school children attending nonprofit, accredited schools. To not do so appears narrow and insensitive of the welfare of nonpublic school attendees. Missouri formerly furnished this service and over one-half of the states now provide transportation to nonpublic, accredited schools. The furnishing on a nondiscriminatory basis of bus transportation to all would not crumble the time-honored wall of church-state separation.
My disagreement with the majority’s equal protection analysis is its conclusion that Missouri’s decision to deny bus transportation for pupils to church-sponsored schools has a rational basis in fostering church-state separation. First, even the Missouri legislative policy does not clearly indicate that the history of bus transportation of school children in Missouri has been seen as establishing or aiding any particular religion. From 1939 to 1963, Missouri Revised Statutes § 167.140 provided for bus transportation to “pupils attending private schools of elementary and high school grades, except such schools as are operated for profit.” Clearly, the Missouri legislature thought for years that bus transportation for pupils attending private and nonprofit schools did not violate the Missouri and United States Constitutions or Missouri laws. As discussed by the majority, the Supreme Court of the State of Missouri in McVey v. Harris,
In 1947, the Supreme Court of the United States in Everson v. United States,
The factual basis for the classification between public and private school children relating to transportation is bereft of reason, relevance, and logic. In principle, though not factually, this case is similar to Rinaldi v. Yeager,
Similarly, in this case the parents of church-sponsored pupils are designated as a class that does not receive the benefits of free transportation when the paying of such bus transportation costs by the parents of these children has no relevance to promoting the separation of church and state. If Missouri wanted to be entirely neutral concerning bus transportation, it would require all parents to pay for the bus transportation for their children, rather than providing bus transportation only for public school pupils.
Several facts are particularly bothersome and serve to demonstrate the irrationality of the classification in this contested busing field. The school bus carrying the pupils to public schools passed the Luetkemeyer children, proceeded past the Luetkemeyer’s parochial school, and deboarded the public school children at their school. This absurd result certainly cannot be seriously contended as promoting a “rational” purpose of separation between church and state. The children are all citizens of the same state and country. Their parents all pay the same burdensome taxes imposed on citizens generally, and yet, because of their attendance at privately accredited schools, the Luetkemeyer children walk or use private transportation while others ride at public expense.
The majority emphasizes the Supreme Court’s recent decision of Norwood v. Harrison,
The Equal Protection standard of Eisenstadt v. Baird,
In giving substance and reality to the Equal Protection Clause, the Supreme Court said:
“In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly,113 U.S. 27 [5 S.Ct. 357 ,28 L.Ed. 923 ] (1885); Lindsley v. Natural Carbonic Gas Co.,220 U.S. 61 [31 S.Ct. 337 ,55 L.Ed. 369 ] (1911); Railway Express Agency v. New York,336 U.S. 106 [69 S.Ct. 463 ,93 L.Ed. 533 ] (1949); McDonald v. Board of Election Commissioners,394 U.S. 802 [89 S.Ct. 1404 ,22 L.Ed.2d 739 ], (1969). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similai’ly circumstanced shall be treated alike.’ Royster Guano Co. v. Virginia,253 U.S. 412 , 415 [40 S.Ct. 560 , 561,64 L.Ed. 989 ] (1920).”
Reed v. Reed,
I would hold that the Missouri statutes denying bus transportation to nonpublic school children are unconstitutional and issue an injunction against their enforcement.
. The parties stipulated that bus transportation for nonpublic school children would be less than .46 per cent of Missouri’s total annual expenditure for public elementary and secondary education,