Luetkemeyer v. Kaufmann

al., et B. LUETKEMEYER Urban Plaintiffs, al., et Defendants.

Harold KAUFMANN

No. 1703. Court, District

United States Missouri, D. C. W. D.

Sept. FACT,

FINDINGS OF CONCLUSIONS LAW, OF AND FINAL JUDG- MENT RELIEF DENYING PRAY- ED FOR BY PLAINTIFFS OLIVER, Judge. JOHN W. District I. challenge

Plaintiffs those statutes of State of Missouri which of pro- and from school which do vide like for the of church-related schools. Plaintiffs con- tend that of this denial particular provisions violates of United States Constitution. We disa- gree. Luetkemeyer

Plaintiffs Urban and his County, children reside in the Cole Mis- souri, R-III School That District. transports school district to and from public expense school at children attend- ing refused, school. It how- ever, transport plaintiffs’ children to School, and from St. Martin’s operated by which is parish the local of the Cath- they olic Church and which attend. upon That refusal was based the absence any specific statutory of authority to ex- pend public transporta- funds such tion; upon provisions of the Missouri prohibiting Constitution use funds, directly indirectly, in aid religion religious institutions; McVey Hawkins, decision of 364 Mo. 258 S.W.2d 927 expenditure which declared public funds for children lawful under the Constitution and laws Missouri. plaintiffs contend that the trans- DeFeo, Downey, Thomas Louis J. C. portation children of school is a

Jr., plaintiffs. City, Mo., for Jefferson benefiting primarily service children parochial and their and not Atty. Danforth, Gen., D. John C. benefit, schools. The denial Gen., Atty. Bartlett, John Brook Asst. plaintiffs contend, results in an arbi- Inglish, Inglish, Carson, Monaco & W. capricious trary classification Mo., City, Coil, for defendants. Jefferson unconstitutionally plaintiffs equal denies Judge, protection laws, plaintiffs GIBSON, Circuit denies Before OLIVER, process law, liberty District without due COLLINSON forego Judges. that it exer- forces them Luetkemeyer right freely are within exercise home and the of their cise County R-III religion the boundaries Cole order secure their benefit, During the 1970-1971 penalizes exercise District. the free School year, en- there First were 207 religion violation through grades in attend- rolled to the Constitution. Amendment County Dur- ance at Cole ing R-III School. questions presented are The basic year there the 1970-1971 school Missouri, once the of whether State grades 1 children enrolled in were 205 transportation provide to determines only bus through in8 St. Martins School. students, is com- to school by of the United pelled the Constitution 4. Local school districts with transportation provide like to also States cooperation of the the assistance and parochial who attend a students through the of Missouri State State law school; Missouri whether the and provide of Education trans- Board must provide de- not so be does which portation to and from and school home repugnant Federal to the clared living children than all more 3% Constitution. may provide from school miles and living transportation wholly stipu- one all children relevant were The facts pursuant findings mile or more from therefore school fact Our of lated. quote 167.231, R.S.Mo., stipulation paraphrase of V.A.M. Section the expense transportation of is the parties. S. the paid by de- funds and local funds pursu- from taxes rived state and local II. OF FACT FINDINGS 167.251, R.S. ant to 162.161 and Sections plaintiffs Luetke- 1. The are Urban Mo., 1969, V.A.M.S. meyer children, Kennan and and his County District 5. Cole R-III School ages respectively. Jacqueline, 14 and cooperation of with the assistance and Luetkemeyers in rural area of live a of has estab- Board Education the State County, Missouri, adjacent to U. S. Cole Highway operates system school lished a of and approxi- Their home is 50. transportation home and from highway. mately yards from the attend and school for children who Luetkemeyers operated of public 2. The members school maintained and Luetkemey- by transportation the Catholic Church and the is the district. Free attend er children Martins School mile St. to all children live one offered who operated by which is Martins Parish During St. from 1970- school. more average of the Catholic year, daily school num- Church. village unincorporated grades in the of located in children enrolled ber of 50, ap- Highway through County St. Martins R-III Cole proximately transported 2 miles the Luetke- of west who District were School meyer home. is an St. Martins School 130.35. from home and school was and elementary capacity passenger school which offers a curric- Five buses grades through ulum for It would ranging passengers 8. each from 66 to 48 violate the capacity conscience of Urban and four other vehicles with Luetkemeyer pub- by operated to send his children to passengers of 12 each are long for their transportation lic schools education as of district County a Catholic school is avail- church-related from to and school. Cole day by on a educa- able for the reimbursed basis R-III District was School tion of his of the total children. Missouri for all State (ex- providing cost of said County 3. Cole District R-III School $126.96, cept cost was the operates is a school district which transporting two were who elementary Centertown, in a an eligible transportation). for state village Highway 50, ap- located on U. S. proximately paid Luetkemeyer Luetke- 7 miles west of the 1970 Urban meyer personal home. more than and Both Martins School real $985.00 St. public expense County, more

property taxes to Cole non-public a taxes to the children to and from school. in income than $625.00 supported The school district Missouri, than its and more $250.- State of chil- Mis- refusal 00 in sales to the State of taxes going non-public operator and from and dren As owner souri. by Department establishment, collect- the Executive he retail business paid to the its administra- ed from his customers State Missouri statutes, by $4,250 in Judicial tion of the De- of Missouri more than partment taxes income State of Missouri its sales taxes 1970. The interpretation statutes, by paid Luetke- taxes Urban sales Legislative Department meyer taxes collected the State sales paid appropriation have in its of tax him from his customers been Missouri moneys deposited to fund Fund of the children to and home school. Revenue General portion Missouri, of and a of State Luetkemeyer 8. The route which the appropriated Pub- to been the fund has going children in follow to and lic Fund of State of Missouri. School the from home and Martins is on St. School portion has A of the Public School Fund Highway 50 in a rural area. paid and to the Cole been allocated paved There are no sidewalks or walk- County District reim- R-III in School ways, devices, pro- traffic control and pupil providing bursement of the cost pedestrian tected on the crosswalks transportation forth above. as set generally route. no There are sidewalk walkways, or traffic control devices and and 7. A school bus route established protected pedestrian on the crosswalks by operated County the R-III Cole through streets, highways and roads the passes by point School District on U.S. County Cole R-III The School District. Highway approximately 50 which is average daily traffic on the route yards Luetkemeyer from the home and 5,650 vehicles. Highway pass- continues U. 50 and S. nonprofit 9. St. Martins School ais by directly es Martins which St. School operated by school St. Martins Parish of by Luetkemeyer is attended the children. Catholic the Church. source of The sole Luetkemeyers The have demanded income for the school is the contribu- County members the R-III Cole patrons and tions from donations and transportation pro- School Board that charged pupils. friends and fees its Luetkemeyer vided to the children to and 10. The from their Martins School and St. does not home St. Martins School existing transportation op- on the and to and from home facilities routes parents guardians County erated and and school. or maintained Cole The January responsibility R-III the children have the School On sole District. getting Luetkemeyers children made to and from an unsuc- Approximately County cessful effort to R- school. at- board Cole children tending transportation III bus for to St. Martins School live more Martins St. than one mile from School. school district’s school and if officers transportation provided employees and were children have refused to allow attending Luetkemeyer Martins on children to use St. the same school basis provided attending to children district purpose bus Cole facilities going County School, approximately R-III to and from St. Martins School eligible transpor- from children Luetkemeyer would be home. offi- County cials of tation. Most Cole R-III of the children School Dis- Luetkemeyer trict St. Martins refused to School who one allow live mile along more from children to the school are use located the bus facilities existing going and from routes. St. Martins School opinion the reason that in their provided 11. free law of the prohibits State of Missouri County children who attend Cole R- 585,650. parents and school in Missouri was aids the districts III Public School complying During guardians year children 1970-1971 of these Compulso- average daily pupils requirements number of enrolled with the Kindergarten through transpor- in- free Grades ry Law. Attendance This clusive, parents transported and tation also relieves the guardians school districts State of cost children of the these 495,024. Therefore, Missouri was expense and 45.6% guardians were trans- school. The ported. children attend Martins who St. (cid:127) of free denied the benefit School are reported upon 15. Based data complying re- with the Department of Education under Compulsory quirements of Attend- Elementary Secondary Educa- ance Laws are burdened Act the total number of transporting expense of cost during nonpublic schools Missouri to and from school. year 1969-1970 which is a School bus composed number was of 385 Catholic safer means for to travel schools, schools, 80 Lutheran 3 Jewish private pedestrian school than vehicle schools, 12 Amish schools, Day 10 Seventh travel. The evidence buses shows that schools, Adventist and 63 other non- subject statutory regulatory report- Based schools. data safety standards vehi- Department ed to the Education Secondary subject, cles are not school bus traffic is Elementary under the and governed by special traffic re- control Education Act of the total number quirements, and school bus drivers are nonpublic during pupils of school subject special qualification stand- year 134,593, 1969-1970 school was probability The ards. injury accident composed 116,213 which number was going in to and for from school pupils attending schools, 10,844 Catholic pedestrian pupils increases with the dis- pupils attending schools, Lutheran pupils tance the must travel between pupils attending schools, pu- Jewish given school, home and a certain commu- pils attending Day Seventh Adventist nity pedestrian certain hazards schools, 7,059 attending other travel. nonpublic figures schools. These are upon expenditure reports 13. The total estimated based from of the 85% public elementary secondary nonpublic for ed- schools. Of the schools re- attending ucation porting, in the in State of Missouri of students 94.8% During nonpublic $875,300,000. attending 1970-1971 schools are church- year 1970-1971 school the total cost of related schools. transporting grades pupils enrolled in above, noted As of the 45.6% through Kindergarten 12, inclusive, of attending public children in schools public schools in the State of Missouri during of Missouri State the 1970-1971 by public $33,- school districts was year transported. school were If the 028,006, expenditure of total for 3.7% percentage same of children public average pu- per The schools. cost nonpublic in schools Missouri would be pil for was $66.72. eligible transportation, estimated 14. The total cumulative enrollment average daily number of attend- children public grades Kindergarten schools, in ing nonpublic transported to be schools through 12, in the inclusive State 61,374. would be estimated maxi- The year Missouri for the 1970-1971 school transporting nonpublic mum cost 1,084,833 pupils. During was the 1970- children, average school based years 1971 the number of per transporting public cost child of Kindergarten through enrolled in Grades $4,094,872 per school children inclusive, public would be schools and trans- ported public year. at one time or another regard public expenditures schools without vides to estimated total The secondary discriminate educa- whether schools

public elementary and response, grounds.” in 1970- on racial in the State $875,300,000. estimated stated: The was nonpublic transporting cost of Clearly, Even State need not. would be from school to and as schools whose (0.46%) total less than any 1% policies nondiscriminatory, % public expenditure elementa- annual right negat- equal aid was absolute ry secondary education. by implication, ed, in Lemon at least Kurtzman, of children 17. The nonpublic public 29 L.Ed.2d 745] and from both provided expense public schools at footnote in Norwood in See also 1970-1971 in 27 states. explains which the Court in detail how was in these states enrollment appellees case, plaintiffs 30,759,554. enrollment The 1970-1971 case, “misperceive ‘child bene- this states was in these schools Catholic theory fit’ our cases decided under Twenty-three 3,693,818. states do Religion Clauses the First expense provide transportation Amendment.” nonpublic going to for children theory The “child benefit” must enrollment schools. be considered the context cases 16,- in these for 1970-1971 was states required per the Court to define 708,281. enrollment The 1970-1971 missible areas aid to Catholic these states language institutions. of those cas 624,978. es taken out context support the notion III. CONCLUSIONS OF LAW provide transportation pupils, re for all Theory gardless A. Child they of whether attend a reli Benefit gious sug do not school. We place great Plaintiffs reliance on gest the fact that state that benefits spelled theory” the “child benefit out distributed to to children rather than Education, Everson Board of 330 U.S. schools, the fact and that benefit 1, 504, (1946); 67 91 L.Ed. 711 S.Ct. essentially nonreligious may in character Allen, Board of Education v. 392 U.S. regard proper not be relevant to anal 1923, 88 S.Ct. 20 L.Ed.2d 1060 ysis questions other constitutional (1968), and other cases cases. Those presented case; in this we conclude may concluded that States constitution theory,” that the “child as benefit set ally provide particular to services Allen, standing out in Everson and (school schools alone, support plaintiffs’ does not basic textbooks, and school contention. respectively) theory on the that such services were the benefit Equal B. Protection “parents children, schools,” not Al len, supra, at 392, 88 S.Ct. 1923. Those transporta- Plaintiffs contend that cases, however, ques did not to the relate part tion of school children is of a com- presented Principles in this case. prehensive statutory regulatory may may state what a State do designed provide scheme to for the safe- properly be read a as command to ty traveling welfare children to what a do. argue and from school. that Plaintiffs Harrison, the fact Norwood v. 413 U.S. that this service is de- 2804, 2809, plaintiff solely nied 93 37 L.Ed.2d 723 to the S.Ct. be- (1973), “appellees they noted that nonpublic intimate cause are enrolled a arbitrary the State must assistance to “is an and unreasonable private equivalent pro- unconstitutionally schools it to classification de- 382 prohibit say protection a equal of the plaintiffs nies private schools maintenance Fourteenth prohibited as

laws” quite say that such schools another to to the Constitution Amendment protection, equal argue must, as a matter further Plaintiffs United States. state aid. 93 S.Ct. at is invidi- receive involved the classification infringes upon plaintiffs’ ous because Independent Dis- Antonio School San right to select fundamental Rodriquez, 411 93 trict v. U.S. freely exercise and to their choice which held L.Ed.2d 16 therefore, compel- religion a that, pro- federally a education was not jus- ling to shown interest must be state right, was cited and constitutional tected tify the classification. right upon in If one’s relied Norwood. education is not within to a plaintiffs lan- direct attention to Constitution, protection cer- guage Shapiro Thompson, tainly a has it cannot be one said 618, 634, L.Ed.2d 89 S.Ct. right federally protected constitutional “any clas- which states parochial education, nor fed- a penalize sification which serves protected right erally constitutional right, un- exercise of constitutional] [a public transportation to and receive free necessary promote be less shown to parochial schools. governmental compelling interest, is un- right constitutional.” The constitutional regard appropriate In to the standard right church- claimed is the attend a applied involving public in a be ease sponsored in Pierce v. as defined school, Rodriquez education “this concluded that Society Sisters, challenged is not a which the case Plaintiffs L.Ed. subjected must be action appellees case, in Norwood v. this searching judicial scrutiny reserved recognize Harrison, the limited fail suspect laws that create classifications scope Norwood, appellees Pierce. impinge upon constitutionally protect- suggested rights that “the rights.” ed 93 S.Ct. at 1300. Pierce be under would undermined were lending denied to free textbooks conclude, We consistent private those who attend schools —in Rodriquez, rationale words, other that school children who at- proper applied standard is the tra to be might deprived tend ditional test set in McGowan v. out equal protection of laws were Maryland, they invidiously classified under (1961): constitutional L.Ed.2d 393 “The program simply loan safeguard state textbook be- only if is offended the classi cause their had exercised the wholly grounds irrele fication rests on constitutionally protected to send choice to of vant achievement State’s private their children to schools.” 93 objective.” therefore have Plaintiffs S.Ct. at 2809. showing the burden classifi of reasonably promote cation a does not Burger pointed Chief in Justice out objective. valid Plaintiffs State nothing Norwood Pierce “said of establish as a matter law that of any right supposed private paro- of or promote of State Missouri’s decision to public chial schools to with schools share separation of re church and state largesse, equal in state on an basis fusing provide transporta otherwise.” added: He pupils tion to pri- It never if has been held that provide pub when it does service given schools vate share are not some arbitrary, irrational, lic school of allocated for funds education capricious. and find and conclude We such schools into a are isolated irra classification is not State’s Equal legitimate tional, promotes classification violative of the a State but purpose. thing Protection Clause. It is one

383 long three-judge history a main A in the of district court Missouri has high taining very church District of held that wall between Eastern a history pro- implemented purpose, of that is re this when Much and state. Hoegen, private Mo. 349 of funds for in Harfst v. hibit the use viewed 1942), schools, (en legitimate was banc, 609 constitution- 163 S.W.2d in in cited in footnote one al Brusca State Missouri ex rel. case 7 v. of F.Supp. concurring opinions Education, Kurtz in v. Board of 332 Lemon man, (E.D.Mo., 1971), L. 93 36 275 aff’d. 405 S.Ct. U.S. U.S. (1973). case 31 L.Ed.2d Ed.2d 151 That reviewed S.Ct. provisions in the numerous constitutional made the Plaintiff case argument relating separation fund- of church that failure ing private pointed state' and out of tax that Missouri’s out revenues for “goes funding providing than while Constitution even farther schools such Equal those of other That was some states.” case schools violative concluded: Protection Clause. The court did not argument persuasive: find the policy

The of our constitutional separa- State has decreed the absolute nothing arbitrary or find unrea- We only state, tion of church sonable determination governmental matters, -in educa- deny funds to sectarian its money, tional as well. ones Public religious or for schools instruction. coming every taxpayers de- long no invidious discrimina- So as may not used for the nomination, be exists, the courts inter- help religious any sect education Maryland, fere. Cf. McGowan v. or otherwise. S.W.2d at [163 614] 420, 81 6 L.Ed.2d U.S. Here, there is no discrimination Missouri, Constitution Section legal every All children sense. provides IX, tax Art. Y.A.M.S. no denomination have the faithfully revenues for schools “shall be right pub- same to attend free secular appropriated establishing m'ain lic schools maintained tax funds. taining public schools, free no and for parent fact that a child or his purposes other uses or whatsoever.” voluntarily forego him chooses to McVey Hawkins, 258 S. Mo. right exercise to educational Supreme W.2d 927 provided benefits in the Missouri, en held banc the trans systems deprive any- does not him of portation attending private of children thing by F.Supp. State action. provided 165.140, in Section R. 279], prohibited S.Mo., 1949, was the Con large portion Plaintiffs base gen Missouri, stitution of 1945. In the argument reading on their of Ev- eral revision of Missouri school laws Education, supra, erson Board of providing the statute Allen, supra. Board Education v. deleted. current school laws The Court’s discussion those cases relating to transportation, Kurtzman, Section 167.- Lemon v. seq., R.S.Mo., 231 et therefore, can L.Ed.2d 745 interpreted permitting transporta cases, most its recent church and' state only public tion pupils. 455, school v. Harrison, Mis Norwood 413 U.S. 93 therefore, souri, 2804, does (1973); have an avowed 37 S.Ct. L.Ed.2d 723 Lev- purpose prevent aid to church- State itt v. Committee for Public Education sponsored Religious 472, Liberty, schools.1 93 413 U.S. recently Supreme change plaintiffs Most payment the Court Mis tion with the Aylward, McDonough souri has held in v. 500 public of taxes that are for used (July 16, 1973), 721, is S.W.2d it not a not for school violation of either First or the Fourteenth he which sends his children. Amendment United Constitu- States 384 (1973); page 2814, noted on that 736 footnote 5 37 L.Ed.2d S.Ct. 825, “concomitantly, appellant Lemon, 93 S.Ct. states 413 U.S. v. Sloan (1973); process

2982, Commit statute violates due these 939 37 L.Ed.2d Religious Regardless of same reasons.” what Education tee Public 756, placed argu- 93 S.Ct. may 413 U.S. Nyquist, plaintiffs’ Liberty label on be v. ment, (1973); 2955, and Le 948 it is clear the rationale of the 37 L.Ed.2d upon plain- Kurtzman, cases relied do not afford mon 411 93 S. v. U.S. any ground Ct. make tiffs L.Ed.2d 151 relief. 36 equal protec further discussion upon plaintiffs’ The foundation which question redundant. argument school choice rests is that recognized Pierce either created or Due Process prohibi- C. notion that the constitutional requirement tion which voids a state plaintiffs’ points of the six Three of public that all children attend a present process purport due brief commands a further conclusion that they questions. contend that Plaintiffs something there is in the Constitution process (a) “for due were denied requires services, specifi- which that all the bene- reason in order to obtain cally, transportation, bus may which the (transporta- public fits service this decide to furnish children) plaintiffs tion of pa- must also be furnished wholly forego their fundamental consti- pupils. rochial school right tutional select Pierce, judgment, in our cannot so choice;” (b) their reason “for broadly Indeed, read. Court in Nor receipt State conditions wood Harrison v. stated that “the (transpor- benefits of this service holding in Court’s Pierce is without upon plain- children) tation of school Indeed, expressly limits.” Norwood foregoing tiffs’ the fundamental consti- adopted Justice Mr. right White’s observation to free tutional exercise of their concurring opinion his religion;” Wisconsin (c) reason that Yoder, v. 406 U.S. 92 plaintiffs S.Ct. 32 the denial to of bus service L.Ed.2d 239 that Pierce equal an “on basis with other citizens simply may “held pos that while a taking arbitrary of his constitutes the standards, it [educational] property compensation and de- without pre-empt process the educational prives re property him of his without due quiring children to process attend of law.” schools.” 93 S.Ct. at 2809. When the primarily rely Plaintiffs cite upon plaintiffs’ Pierce foundation which reading Society of Pierce of Sis- v. argument process” first “due is based is ters, 268 L.Ed. removed, sup thus all that remains to (1925); Verner, Sherbert port plaintiffs’ argument is their read L.Ed.2d ing of Sherbert. Indeed, Sherbert (1963). upon The cases plaintiffs’ sole for the basis second “due plaintiffs place principal reliance make process” argument, other than clearly inappo number process clear the due label which cases, of state which are plaintiffs place arguments on the made site. points quite under these three inci- presented But very Sherbert also plaintiffs’ dental and that reference question process narrow due under the Free Exer- pat- more follows the less support cise plain- clause and does not apparently tern Guys followed in Two argument receipt tiffs’ McGinley, aof unconstitutionally service is L.Ed.2d bur- That case involved equal protection an dened. The Court made clear Pennsyl- Sher- attack bert Sunday that: closing vania’s Plaintiffs’ law. holding page contentions today were on summarized Our . . . page principle S.Ct. and the a that we reaffirms an- ago, a and a half nounced decade tions. Chief Justice Warren stated may closing namely Pennsylvania law, in- ‘exclude that no so far as Lutherans, faith, Catholics, Moham- dividual members the Orthodox Jewish medans, Methodists, Baptists, Jews, “operates practice so as to make the Presbyterians, religious expensive.” Non-believers, or the their beliefs more any faith, however, members of other because concluded, Court faith, it, recognizing “[f]ully or lack from re- alterna- ceiving open appellants the benefits of welfare and others simi- tives legislation.’ Ed- Everson v. Board of may larly situated . . . well result ucation, 1, 16, S.Ct. [67 in order to some financial sacrifice in (emphasis religious L.Ed. beliefs, 711]. still the observe their Court’s.) [374 U.S. at 83 S.Ct. wholly option is different than when the at legislation attempts religious 1797]. to make a practice itself unlawful.” at [366 U.S. request Sherbert involved a for dis- 605-606, 81 at 1147]. S.Ct. pensation general regulatory from a law; request pub- not a or demand for a clear that makes Braunfeld exemption lic service. While the or dis- of a statute is not an economic effect pensation clearly would in some result determining appropriate test for wheth particular individual, a aid to it did not challenged legislation er violates the expenditure involve the funds took note of Constitution. would, indirectly in fact, aid a re- cosmopolitan “we are a na fact that ligious simply The Court institution. up people every tion made almost question did not have the latter before religious preference” conceivable Douglas appropriately point- it. Justice “[Consequently, expect cannot be concurring ed opinion, out his legislators ed, required, much less problems “this does not case involve regulating law conduct enact no of direct or indirect state assistance way may result an economic some religious organization.” at [374 U.S. disadvantage religious to some sects 413, 83 S.Ct. at 1798]. special prac because not to others religions.” various U. analysis, recog tices final it must be at simply 1147] nized S. that Sherbert held that the disqualification Day of the Seventh Ad^ O’Brien, 391 United States v. U.S. plaintiff beneficiary ventist as a under 367, 88 20 L.Ed.2d 672 Unemployment the South Carolina Com (1968), rejected a Amendment at- First pensation Act could not withstand con tack the 1965 amendment challenge stitutional because Car South Apparent limita- Act. Selective Service justify disqualifica olina could not upon First Amendment freedoms tions “compelling state interest justified by quality were held regulation subject of a within the governmental involved. interest power regulate State’s constitutional long on the line of The Court commented .,” meaning within the of the fa only one, cases of which Sherbert miliar standard articulated in NAACP when it that: stated Button, 415 at quality 328 at To characterize 9 L.Ed.2d 405 governmental ap- interest which must Brown, Braunfeld v. 81 S. employed pear, a vari- the Court has Ct. 6 L.Ed.2d 563 in also volving compelling; ety descriptive terms: repre the Free Exercise clause, subordinating; para- substantial; sents another case line of same strong. cogent; mount; Whatever cases which reached a different result. terms, we imprecision repeatedly recognized these inheres that a Braunfeld regu- government may valid that a place think it clear statute well an sufficiently justified if it is upon persons economic burden lation is who power of the constitutional wish follow their within convic-

386 highest impor- order” within est of Government; furthers an if it meaning the mean- in- of Yoder and within governmental or tant substantial descriptive ing various is of all the other ; governmental interest

terest if in United suppression terms set forth States of free unrelated to quoted. re- O’Brien above expression; if the incidental alleged Amendment First striction has determined The fact greater essen- than is no is freedoms policy of church to enforce a more strict of that inter- furtherance tial to the required separation than that and state 376-377, at 88 S.Ct. at U.S. est. [391 by Amendment does the First 1679] present any federal constitu- substantial Supreme question. tional Court has which, mat- as a case The most recent clearly an area of indicated-that there is result, same side of fell on the ter of activity the Estab- which falls between Yoder, Sherbert, Wisconsin v. line as is lishment and the Free Exercise Clause 205, 1526, 92 32 L.Ed.2d S.Ct. 406 U.S. by a will Clause which action (1972). concluded That case 15 inaction, not violate the nor former in universal education interest State’s example, latter. For v. Tax Com- Walz justify im- not sufficient mission, 1409, 90 S.Ct. 25 397 U.S. upon pingement convictions (1970), L.Ed.2d 697 concluded that a against formal Old Order Amish may may prop- not tax church grade. eighth beyond the education erty. permissible “The limits of state descriptive terms Yoder added religion by no accommodation to quality of the to characterize the used means co-extensive with the noninterfer- ap- governmental interest which by ence mandated the Free Exercise Burger pear. stated that Chief Justice Clause” at 90 at U.S. S.Ct. [397 been said of all that has essence “the Likewise, Richardson, Tilton v. 1413]. subject and written on the 403 U.S. 29 L.Ed.2d S.Ct. highest order interests of the those may established a State can overbal- not otherwise served those grant funds to church-relat- legitimate exer- to the free ance claims buildings ed schools for construction religion.” at [406 cise of for secular use. at 1533] argument Much the same as that conclude without hesita We by plaintiffs made in this case was made long established constitu tion that Robinson, F.Supp. in Di Censo Missouri, policy of the State tional (D.R.I.1970), aff'd. degree separa insists 29 L.Ed.2d 745 probably a tion of church and state rejected Court there the claim that free degree higher required than that exercise benefits which flow from aid to Amendment, “compel is indeed First parochial prevail education should over regulation ling in the of a state interest protected the establishment clause values subject within the State’s constitutional stating: separation, strict power,” enunciated within the standard reject the notion that the Free We Button, NAACP v. demands affirmative Exercise Clause L.Ed.2d 405 action . to accommodate interest, applied in That Sherbert. personal society evaluations when any judgment, possible in our satisfies large premise accepted has infringement the Free Exercise religious and secular education can be clause of the First Amendment or successfully separated. F.Supp. any prohibition other in the Constitution at 123]. find the United States. We likewise it Missouri has will and conclude that Missouri’s interest determined subject paro- within consti not extend bus Missouri’s Nothing power chial school students. in the tutional and that such interest may properly requires “inter- federal Constitution do be described as an not, course, I can arguments mean that .de- under the so. Plaintiffs’ money, government a sum points mand of under dis- three first two the For the to exercise them. better are untenable. cussion written is Free Exercise Clause argument plaintiffs’ final The government cannot terms of what point proc “due under the last individual, in terms of do to the not arguments un is an is that there ess” exact what the individual can taking plaintiff’s constitutional government. [374 U.S. he does not share of tax revenues when at 1798] gen provided from the receive benefits Accordingly, indi- and for the reasons only case cited eral tax revenues. cated, it is plaintiffs, Edison Detroit Co. adjudged No. T. District Ordered and that Sections East China P. School 163.061, 296, (E.D.Mich.1965), 167.231, 167.251, 163.161) F.Supp. aff’d. 165.- R.S.Mo., V.A.M.S., Cir., den. related F.2d cert. stat- hereby 296, 19 L.Ed.2d utes and are declared should be support plaintiffs’ not nov not to be It is unconstitutional. further does Indeed, theory. el the district court’s adjudged plain- Ordered and that dismissing complaint plaintiff’s order injunction enjoin- tiffs’ an demand for general appeal. on affirmed ing the enforcement of Missouri Stat- leading principle stated case of 163.161, 167.231, 167.251, utes 163.061 Refrigerator Company Union Transit 165.011, V.A.M.S., R.S.Mo., should Kentucky, Com. of hereby be and denied. It is further is general 50 L.Ed. 150 that “a adjudged plain- Ordered and that, tax cannot be dissected to show as prayer damages tiffs’ should be and parts, taxpay to certain constituent hereby is denied. benefit,” applicable. er is receives no argument last Plaintiffs’ is untenable. COLLINSON, Judge, District concurs. GIBSON, Judge (dissenting). Circuit IV. CONCLUSION respectfully I dissent. I do not think find and We conclude that validly claim, State of Missouri can Constitution of the United States does in the face the Fourteenth Amend- compel pro the State of Missouri Equal Clause, ment’s Protection it equal transportation pri vide services to purpose promoting has a valid church-sponsored vate and schools and separation between church and state has, may, provide it as it elect to denying bus only such service for its schools. Bus trans- schools. recognize plain While we some portation health, is furnished as a safe- arguments may tiffs’ be based ty, and welfare measure to those chil- grounds other than the First Amend residing beyond dren a stated area of ment, appropri we deem it nonetheless school, and the reason basis and following language ate to salutary such service extend to should all Douglas’ concurring from Mr. Justice attending nonprofit, school children ac- opinion generally applica in Sherbert appears credited schools. To not so do ble to this case: narrow and insensitive of the welfare of nonpublic This ease resolvable not terms school attendees. Missouri formerly of what an individual can demand of furnished this and over service government, solely in terms of one-half of the states now trans- government may portation what nonpublic, do to an in- accredited furnishing dividual violation his schools. The nondis- scruples. government criminatory The fact basis cannot exact from me a surrender of to all would not time-hon- crumble the my religious scruples one separation. iota of does ored wall of church-state parochial pu- pay bus fares laws of majority holds general program pils part under interpreted of a as only be “can pays attend- it the fares of permitting ing public The Su- do not and other schools.” laws pupils” such and that agreed preme against parochi- announced that invidiously discriminate Jersey spending applying tra- with New children. al school state funds for such bus classifica- “reasonable ditional test endanger necessary the wall “Mis- would not tion,” majority concludes the by separa- required promote church and state as the between decision to souri’s refusing by Amendment. seems to be a to the First It and state tion of church strange anomaly say, transportation to as the de- to also provide school bus argue, pupils denial of church-sponsored fendants that Missouri’s . legiti- transportation parochial pupils promotes for irrational, bus but not separation rationally promotes the be- purpose.” mate State posi- tween church and state. The two majority’s My disagreement the being contradictory. tions border Can analysis equal protection conclu- is its Jersey New make a rational decision deny decision to bus sion that Missouri’s transportation pupils that bus for all pupils church-spon- transportation for endanger separation does the not a rational basis fos- sored schools has state, church and while Missouri takes First, tering separation. church-state opposite, supposedly ration- the also legislative policy does the Missouri even decision, al the denial of bus trans- history clearly the not indicate portation church-sponsored transportation bus of school pupils promote separation the does establishing has been seen Missouri Admittedly, church and state? states religion. aiding any particular From disagree, for 27 states do this 1963, Statutes Missouri Revised questioned type transportation, of bus transporta- provided for bus 167.140 § light and 23 states do not. In of the Su- attending private “pupils schools tion to preme Court’s announcement in Everson high grades, elementary according and, policies of 27 except operated for such schools as are states, say only I would the rational legisla- profit.” Clearly, Missouri the today transportation decision is that bus thought years ture that bus trans- church-sponsored for children to schools attending pupils private portation endanger separation does the be- nonprofit did not violate tween church and state. and United Constitu- States by tions or Missouri laws. As discussed The factual basis for the classification majority, Supreme private Court of between school chil- McVey Harris, relating transportation State of Missouri dren is bereft (1953), reason, relevance, logic. prin- 364 Mo. held S.W.2d 927 In ciple, though factually, this case is prohibited by Yeager, schools was similar to Rinaldi v. However, Constitution of Missouri. 86 S.Ct. 16 L.Ed.2d 577 furnishing question Jersey whether remains which a New statute required appellants bus school chil- unsuccessful who dren, denying jail repay while the same to church- were sentenced to the cost sponsored pupils, transcript violates United which the state had require furnished. States Constitution. The statute did not payment appellants from unsuccessful Supreme Court of the given who were fined or who were United States Everson v. United probation suspended sentences. States, 67 S.Ct. purpose found Court of the act L.Ed. held that First was to reimburse the state and prohibit Amendment did not “New Jer- sey spending repaying transcript’s by tax-raised funds to cost any rele- for the of chil- designated not have benefit did class dren, any par- purpose not the establishment of for which the classi- vance Yeager, religion or ticular school. Rinaldi was made. fication supra at majority emphasizes Supreme decision of Norwood v. Court’s recent parents of Similarly, case the in this Harrison, designated say did L.Ed.2d 723 the bene- not receive that does as a class rationally in dicta that a state could con pay- transportation when the fits free legislative policy clude as a matter of ing costs of such bus neutrality as to that “constitutional sec no rel- children has of these might tarian schools best be achieved separation promoting evance to withholding Nor all state assistance.” wanted church If Missouri and state. supra Harrison, wood v. concerning entirely trans- neutral (citation omitted). However, at 2809 portation, require parents to all would presented the Court Norwood was pay transportation for the for bus much different factual situation with a children, providing bus rather than Norwood, In than in this case. pu- transportation only public for Mississippi could not Court held that pils. at to school children who lend textbooks particularly Several facts are bother private that were admit tended schools some and serve to demonstrate discriminating irra tedly basis. on a racial tionality of the classification this con private noted The Court schools busing tested field. The school bus Mississippi grown in 1963- had from 17 carrying public schools virtually 64 to with a all- 1970 passed Luetkemeyer children, pro effect, enrollment. In white student past Luetkemeyer’s parochial ceeded funding program by of this textbook school, and deboarded the financing Mississippi partially a ra was children at their school. re This absurd cially private discriminatory educational certainly seriously sult cannot be con system. inapplicability of Everson promoting pur tended as Allen, “rational” and Board of Education v. 392 U. pose separation between church and 1923, 20 L.Ed.2d S. state. The children are concerning all citizens of pro to Norwood country. par same viding state and Their assistance to sectarian pay ents all the same burdensome taxes viewed connection schools be imposed generally, yet, citizens Mississippi’s program privately because of their attendance at textbooks to children who were attend schools, Luetkemeyer accredited ing chil virtually private all-white schools private transportation dren walk or use grown nine-fold at the same had while expense.1 beginning others integration ride at time invidious, The discrimination effectively implemented Mississip be patent^, Further, pi. bar, parents, somewhat odious. bus In the case at who transportation merely state-supplied is the safest means of bus trans desire transporting portation safety school. view their chil facts, asserting all these dren, above to which defend their constitu stipulated, perceive ants rights attempting difficult tional and are not argue how the State can still practices, further unconstitutional denial of bus for children were the in Norwood. In addi tion, schools furthers this service is for the benefit of separation children, of church and state. Bus not the school. parties stipulated transporta expenditure public elementary 1. The that bus nual education, nonpublic secondary tion for school children would be per less than .46 cent of an- Missouri’s total legis object relation to denial of tial hold Missouri’s I would similai’ly persons lation, all so to church- bus treated alike.’ shall be circumstanced sponsored a clear vio- constitutes schools Virginia, Royster U. Equal Co. v. Guano Protection Clause lation 560, 561, L. 412, 415 Missouri S. Amendment. the Fourteenth (1920).” transporta- Ed. 989] to furnish bus does not have having all, as a mat- decided 75-76, Reed, Reed v. S. policy to furnish such trans- ter of state 251, 253-254, 30 L.Ed.2d Ct. safety portation the welfare stat- I would hold that high elementary stu- denying to non- utes be dents, should public school children are unconstitu- attending open accredited to all students against injunction tional and issue an schools. their enforcement. Equal of Ei- Protection standard Baird, 438, 446-447, senstadt v. 31 L.Ed.2d 349 standing persons in the same rela- governmental tionship to the action chal-

lenged uniformly treated, should be

means that children BANK, CITY NATIONAL FIRST should afforded the same Plaintiff, safety protec- and welfare measures of tion in attendance as those more, schools, no no less. Com- LIFE INSURANCE PHOENIX MUTUAL Gilmartin, justice requires C.

mon it. and Helen CO. Defendants. giving reality substance and LIFE INSURANCE MUTUAL Clause, PHOENIX Equal Supreme Protection Interpleading CO., Defendant Court said: Plaintiff, applying clause, “In this Court consistently recognized has America, UNITED STATES deny Fourteenth Amendment does not Interpleaded Defendant. power States to treat different No. 70 Civ. 5703. persons ways. classes of in different Connolly, Barbier v. 113 U.S. 27 S. [5 Court, United States District (1885); Ct. 28 L.Ed. Linds 923] S. York. D. New

ley Co., v. Natural Carbonic Gas Sept. [31 S.Ct. 55 L.Ed. 369] (1911); Railway Express Agency v. York, New 336 U.S. 106 [69 (1949);

93 L.Ed. McDonald v. 533] Commissioners,

Board of Election

U.S. 802 22 L.Ed.2d

739], (1969). Equal Protection does, Clause of that amendment how

ever, deny leg power to States the

islate that different treatment be ac persons placed by

corded to a statute

into different classes the basis wholly objec

criteria unrelated to the

tive of that statute. A classification arbitrary, reasonable,

‘must be ground of

and must rest some having difference a fair substan-

Case Details

Case Name: Luetkemeyer v. Kaufmann

Court Name: District Court, W.D. Missouri

Date Published: Sep 24, 1973

Citation: 364 F. Supp. 376

Docket Number: 1703

Court Abbreviation: W.D. Mo.