115 N.H. 553 | N.H. | 1975
The following answer was returned:
The undersigned justices of the supreme court return the following answer to the questions contained in your resolution adopted August 26, 1975, and filed in this court on August 27, 1975.
Your first question is as follows:
“Are payments made in conformance with the State Board of Education guidelines, RSA 189:49 (supp. 1973), and RSA 198:22 (supp. 1973) constitutionally permissible in light of Meek & a. v. Pittenger & a., 44 L. Ed. 2d 217 (1975)?”
In Meek v. Pittenger, 421 U.S. 349 (1975), the Supreme Court upheld a provision of a Pennsylvania statute which provided for the loan, free of charge, of textbooks which are acceptable for use in any public school, directly to children attending nonpublic schools that met Pennsylvania’s compulsory attendance requirements. The textbook loan program was available to all schoolchildren, those in public as well as nonpublic schools. The Court struck down however as constituting an impermissible establishment of religion and as creating a serious potential for excessive entanglement both political and administrative, provisions which would provide “auxiliary services” including counseling, testing, psychological services, speech and hearing therapy and related services for exceptional, remedial or educationally disadvantaged students and such other secular, neutral, non-ideological services as are of benefit to nonpublic schoolchildren and are provided for those in public schools. Struck down also was the provision for loans directly to nonpublic schools of instructional materials and equipment including periodicals, photographs, maps, charts, recordings and films and projectors, recorders and laboratory equipment. Under the auxiliary services provision of the statute considered in Meek, the teaching and services were to be provided in the nonpublic schools themselves and only at their request, although by personnel employed by the public school district.
The Court held that given the fact that religion was an integral part of the dominant mission of the school “in which an atmosphere dedicated to the advancement of religious belief is constantly maintained” the potential for both political
We have no need to consider whether the nonpublic schools which are involved in New Hampshire are of the type referred to in the Meek case for we are of the opinion that the guidelines laid down by the State board of education avoid the proscriptions of that case.
The auxiliary services authorized by our statutes, RSA 189:49 (Supp. 1973) and RSA 198:22 (Supp. 1973), may be divided into three groups. The first includes physician services, school nurse services, school health services, textbooks loaned to the students, and hot lunches. Second, school guidance and psychological services, educational testing services, health and welfare services, driver education, special programs for the deaf, blind, emotionally disturbed, crippled and physically handicapped and physical education, and third, instructional materials incidental and necessary to provide the services in group two and educational television services limited to only study guides for students on an individual basis which adhere to the same limitations as are imposed on textbooks.
In group one, the provisions by which textbooks are provided directly to students appear to be indistinguishable from those which were upheld as constitutional in Meek. The other services included in group one such as physician, nurse and health services and hot lunches although apparently to be furnished to students within the nonpublic schools themselves are nevertheless so unrelated to the educational programs of those schools, being strictly nonideological, and incapable of being used to promote an ideology, that there is no danger that they will be used to foster religion. There will be no need for continuing surveillance so as to lead to excessive entanglement either political or administrative.
The services in group two are of the same nature as those struck down in Meek. However, the fact that those services are to be furnished directly to the children at places removed from the nonpublic schools by personnel employed by the school district and at the request of the student rather than the nonpublic school removes the “potential for impermissible fostering of religion” (Meek v. Pittenger supra) and eliminates the need for continuing surveillance which would lead to either political or administrative entanglement. Consequently the services in this group are not prohibited by Meek.
The instructional materials furnished under group three are confined to use in connection with the services provided in group two. Since these services are not performed in the nonpublic schools but at other places, the aid does not flow to the nonpublic schools but directly to the students. The dangers which led the court to strike down the Pennsylvania statute involved in the Meek case are thus avoided. The educational television services although not confined to places outside the nonpublic schools are limited to the expense of study guides furnished for the individual use of the students on the same basis as textbooks. This does not appear to be proscribed by the Meek decision.
Therefore the answer to question one is “Yes”.
Question two is as follows:
“Do the restrictions imposed by the guidelines upon the provision of those child benefit services contemplated by RSA 189:49 (supp. 1973) and RSA 198:22 (supp. 1973) reach beyond that measure of discretion granted the State Board of Education by 1975 Laws 505 in order to comply With Meek & a. v. Pittenger & a., 44 L. Ed. 2d 217 (1975)?”
The footnote to Laws 1975, ch. 505 provides in part “and the state board shall have discretionary authority with regard to payments under the provisions of said statute in order to comply with the U.S. Supreme Court decision (Meek Case).” See also RSA 193:1-b (Supp. 1973).
The Roman Catholic Bishop of Manchester, a corporation sole, in its memorandum claims that the State board has
We do not read the guidelines as eliminating educational television services. Guideline C 3-b limits the expense for this service to study guides for students described under “textbooks” under section C 1-d which in turn provides that such guides qualify as textbooks when made available for the individual use of the student. This appears to be required by Meek to avoid furnishing the guides directly to the nonpublic schools. This provision presupposes that there will be educational television services provided.
The Catholic Bishop of Manchester appears to be concerned that the guidelines, by limiting the expense to study guides prevents payment to the educational television network of a one dollar a year per pupil fee. If the guideline is intended to eliminate the payment of the per pupil fee to the network, the State board has exceeded its discretion by going beyond what is required by Meek. The legislative intent appears to have been to provide the maximum services permissible under the Meek case.
As to the instructional materials which are limited by the guidelines to services provided outside the nonpublic schools, the Catholic Bishop of Manchester contends that the Pennsylvania provision for such materials was struck down in Meek because they were loaned directly to the nonpublic schools. It contends that it is therefore permissible to furnish such materials for services provided in the nonpublic schools provided the materials are furnished directly to the students instead of to the schools.
We do not have sufficient information to permit us to decide whether the instructional materials referred to are used by the teacher in instructing or by the students in the same manner as textbooks. It would appear to us that those materials which are used by the students in a manner similar to the way they use textbooks could be supplied directly to them and not offend the rulings of the Meek case. However, it is difficult for us to see how instructional materials which are intended to be used by the teachers could be loaned to
In all other respects, the answer to question two is “No”.
