*1 n nohuman can what the dece- determine caused agency dent’s of death death. All three causes equally probable innocent noncriminal. one Only or inno- three causes criminal might be either possible that death cent. was permitted speculate Yet jury defendant. criminal act was caused the fact (cid:127)basis rests on speculation defendant, persons, of a of intoxicated partici- one group an an the decedent area near to rob pated attempt found River, body decedent’s Missouri days the river several later. State’s evidence resulted from death drown- might indicated time while the defendant fleeing ing robbery. attempted that a has specific crime been proving
“The burden that a crime fulfilled evidence committed Addison, v. Neb. occurred.” State probably never speculation may 2d 468. “Suspicion W. N. supra. State, conviction.” justify Reyes conviction. does not support The evidence here appellant D. Rogers, ex Nebraska rel. Vance State Wayne Swanson, R. cross-appellee, appellee cross-appellant. Treasurer, 219 N. 2d 726 W. No. 39032.
Filed June 1974. *2 Kutak, Rock, Cohen, Campbell, Woodward, Garfinkle & for appellant.
Clarence A. Meyer, H. Attorney General, and Gerald Vitamvas, Deputy Attorney General, for appellee. Heard before White, C. J., Spencer, Boslaugh, Mc- Cown, Newton, Clinton, and Brodkey, JJ.
Spencer, J.
This is from appeal the denial of a petition for man- damus Dr. Vance D. filed Rogers, relator-appellant. The problem involved is the constitutionality sec- 85-721, tions 85-701 R. S. Supp., 1972, hereinafter relating referred to L.B. inde- education pendent higher institutions of statute The education. provides public grants in brief in need colleges. tuition aid to attend District Court determined the sections statute violated certain of the Nebraska, Constitution of relator denied perfected appeal. Respondent- relief. Relator this appellee cross-appeals did not because the trial court find violation I, Article section Constitution Nebraska, and also contends that the statute violates prohibition against the federal constitutional estab- religion. lishment sought expense
Relator reimbursement of incurred an September September under the statute. On upon treasury 13, a warrant of Nebraska respondent, was issued Treasurer, and transmitted the State legality countersign refused who it. The respondent’s depends upon constitutionality action statute. District Court held L.B. 1171 uncon- *3 affirm. We stitutional.
Respondent III, Article section Article invoked YII, Nebraska, section the the Constitution pertinent provisions reading respectively as follows: * * * Legislature pass special “The shall not laws in ** following any Granting any cases, *. corporation, any special association, or individual or * * privileges, immunity, exclusive or *. franchise * * * general applicable, no where law can made * * * special enacted. shall be law any shall be allowed in school “No instruction sectarian * * * part by supported in whole or in funds * * * * * apart purposes, educational *. set * * * * * * Legislature any (not) shall make state appropriation * * * any public fund, aid of any college, denominational or or sectarian school or exclusively any institution which is educational * * by and controlled the state owned question, statute After enactment Article VII, amended. Nebraska, section Constiution of was involved The amendment does affect herein. 110 Neb. See Whetstone v. Slonaker 343, 193 N. 749. held: “An act of the W. We there legislature is at the by forbidden Constitution time of its and is passage void, null and absolutely not validated by subsequent amendment the Consti- tution it to or authorizing pass such an act.” Whether not the amendment could construed we possibly be so do not its pass upon argues effect even though respondent of the statute the amended unconstitutionality under version. ,1171
Respondent argues L.B. violation VII, Article section Nebraska, of the Constitution of in that amounts an appropriation from a public fund in of a sectarian or aid denominational educational institution which is not owned and controlled exclusively the state or a by governmental subdivision thereof. VII, Article section Constitution of Nebraska, was amended by Constitutional 1920. Convention committee on education originally attitude adopted the that such aid should be denied to insti- educational any tution which was not “exclusively controlled motion state.” The made this be amended read as it presently appears Constitution, owned and “exclusively controlled state.” of the amendment proposer stated his position as follows: I am “As far as personally concerned, I to have desire Constitution any state aid prohibit any under guise educational other than institution the public school. It is not a matter, if the difficult Legislature fit to find an excuse sees in the interests of wel- general ware, to make donations under guise military normal what training training not, in a *4 I have institution. no absolutely hostility to insti- those it will tutions, but invariably on the kind of bring that this state should clear if stay from, warfare you church the state and even mingle extent.” that Respondent argues: can be if aid “We submit that by grant nature, of this then extended grant tuition enlarged recipients of could could be and the class enlarged paying all tuition until could the state private for all all educational institutions students in long pursuing not state so students were degree theology study leading of course to a divinity. intent We do not think this is within the provision.” this constitutional validity Legislature
The constitutional of an act by is to be and determined, tested what has been possibly may be done under it but what law provi- authorizes to be done under and virtue its Community sions. United v. The Omaha Nat. Services Bank In Neb. 77 N. W. 576. Legislature case we held that cannot circumvent express provision an by doing of the Constitution indi- rectly directly. grant not do what Here the directly private to a rather to a student, school but private but it must be used for tuition aat school. following provisions from section 1 of L.B. 1171 pertinent “(2) increasing herein: costs operating independent colleges our universities forced increases which tuition freedom of make choice many education in state; difficult the students this * * * (4) system A of financial assistance to qualified college age residents of will enable them qualified independent higher attend institutions learn- ing pay- of their choice in this state.” While the tuition they ments are students, be made must be private used institution in this state. assumption is a reasonable
It intent is indirectly appar- benefit institutions. This 5 of ent when we consider section the act which indicates amount student shall charge upon the be based institution over and money spend the amount he above for tuition University of had he attended the Nebraska at Lincoln. *5 130 provides
In addition, is to noted section be any refunds that are state will look to institution for grants made discontinue Legislature on the should the student tuition his attendance. recognized It obvious that seems merely a
the fact that student through conduit the funds would be funneled concerned. the educational institution Legis- judge primary found intent of the trial enacting financial lature L.B. in through private colleges aid to and schools in Nebraska grants attending institutions, those give stu- than financial to resident rather assistance of their them attend institution dents choice. enable an noted that an examination He further legislative history particularly floor as debate operation legislation practical indicates as well opera- solvency primary concern for the continued Labora- tions of the institutions involved. In Norden County Equalization tories, Inc. v. Board Legislature held: “In the Neb. N. W. we legislative explanation or the record history, a floor debate secondary in extrinsic, an source and it statutory interpretation.” Carpenter In the bill said as the debate on Senator “ * ‘* * large large, number, have a not a
follows: we privately schools all denominations a number owned anywhere think, recall, I I who about dormitories and area educa- 12-1500vacancies * * * they fill. Now if don’t cannot we tion which they’re something private going schools, for these do ” doors of them.’ On another to have close the to some “ Carpenter said: T would like to occasion Senator legal way order to have the make some state find area, in the other contribution, either bill parts up unused of these order use ” Johnson, one the introducers Senator schools.’ “ legis- President, ‘Mr. members of the bill, stated: brought campuses out that lature, it has been there are over facilities, the state fine fine but instructors, where ” “ (cid:127) lack they Moylan students.’ ‘Now stated: Senator it’s not only alive, these it’s thing keeping ” the case of It financial state.’ assessts (sic) thus the trial appears finding with judge’s respect to the intent of Legislature shown adequately the floor debate. L.B. argues
Relator 1171 does appropriate to or funds in aid of institutions of learning *6 and that by owned controlled the state and exclusively VII, 11, Article section of was Nebraska, Constitution intended to made those prohibit only appropriations to for not directly schools support appropriations those aid students attend such who In v. Day Almond E. colleges. (1955), 419, 197 Va. S. 851, 2d court of Virginia the held for payment law tuition foru of war orphans veterans at schools secondary to colleges approved by the state be violative the state’s against constitutional the prohibitions appropria- tion of to schools money or institutions owned thereof, controlled the state subdivision exclusively by or to any sectarian institution. The court interpreted to” an institution to have to “appropriation reference It the benefit of such an appropriations for institution. held that such the appropriations violated constitutional even prohibition question, though payment directly to institution, made tuition fees stating go institution, “and are directly very its life blood.”
The of Alabama, Court Opinion of (Ala., 1973), Justices So. answered questions propounded Alabama House Representatives concerning of a constitutionality for tuition provided bill which students grants to resident colleges and attending private universities Alabama. Justices the opinion were the bill violated federal and state provisions constitutional insofar as state funds be used provided directly or indirectly tuition grants students payment attending sec- tarian noted that declaration schools. It is adopted by purpose Legislature, our act, like act of the Alabama of accredited recited a number there were independent used institutions facilities could be whose effectively granting interest financial to attend who assistance citizens the state chose by paying portion such charges reducing thereby educative at such institution, taxpayers. further costs Alabama court “* * * opinion cumulative stated: impact we are relationship and church between provided in H.B. which is related institutions entanglement’ ‘an the State involves excessive between religion therefore be unconstitutional and would Religion First Amendment under Clauses Constitution, counter- Federal as well as its Alabama the part, 263.” Article Section In Patterson C. Hartness S. Supreme Court struck E. 2d Carolina the South making' public legislative avail- funds enactment down attending inde- financial aid able to higher learning. pendent The South institutions provides very similar our own. It Carolina act *7 grants attending independent insti- to students tuition learning, higher a committee to ad- creates of tutions grants, eligibility require- forth sets tuition minister the aid, to receive the makes students and ments any grant unavailable student enrolled in to tuition course or divinity, degree theology, study leading to a of religious It forth also sets the standards education. independent by any participating institution to met be learning. higher of
Quoting case: “Under the South Carolina grant to tuition is Act, the made available terms by accepted only has been or is after he the student registered eligible particular his institution choice. of grant made, has been is unlawful tuition After expend any purpose the funds for to student for the other institution than in of his at the tuition payment he It is is authorized to attend under tuition grant. conceded the tuition to directly made school, to student who is required but made to it to the pay school selected him.” “A
Section of L.B. 1171 grant may tuition provides: be of admitted any awarded Nebraska who is resident as a at any full-time resident student in attendance institution financial independent who established herein, .1171, need.” Section 6 of L.B. so far as material “If the provides: discontinues before student attendance term, or semester, end any equivalent academic after under the entire receiving payment grant, amount any student, tuition refund due up payments amount of under the annual made shall grant, paid independent institution Nebraska.” Harkness, South court holding Carolina supra, is as funds, follows: “Use statute public under such funds available to making financial aid provide for students attending independent institutions higher learning, grants attending students participating religious institutions constituted ‘aid’ to such within of, institutions meaning prohibited by, article of Constitution prohibiting use directly indirectly, or money, institutions higher aid controlled learning by sectarian groups.” Miller v. Ayres (1972), Va. 2dE. involved statutes relating tuition assistance loans institutions or collegiate graduate education. statutes provided scholastic satisfactory achievement considered repayment loan. The court held the loans constituted and that gifts, since or gifts grants such made to may be institutions, sectarian they violate preceding provision of Constitution prohibiting appropriation schools institutions learning not owned exclusively controlled by State some subdivision thereof. *8 Synod of Dakota Dakota court
The South 418, ex- R. A. 632, 14 L. 50 N. W. S. D. ap- prohibition of the pressly a constitutional held that any money, sec- propriation “to aid credit lands, or appropriation applied any to whether school” such tarian payment rendered for services or as a donation made payment of the case school, as in state said being common in the tuition for trained teach position that took Dakota court schools. The South university plaintiff’s for payment demand the univer- be the benefit aid tuition would sity, although for for be contended it was or to its students. rendered state services plausible, is, contention, “This while that: court stated If the results. think, unsound, and leads to absurd we why may pay it not students, state can the tuition of 25 can all that institution maintain at institution thereby support the institution accommodate, and entirely funds?” Liberty Religious Education &
In Committee Public Ed. Nyquist (1973), 2955, 37 L. 93 Ct. U. S. York it a New Court before 948, the had granting tax benefits tuition law reimbursement elementary secondary private parents school to the students. The court it put Black
stated: “As Mr. Justice any simply quite amount, ‘No tax in Everson: religious support large can levied small, may they called, institutions, activities or whatever practice they adopt teach or form or whatever S, religion.’ at 16. 330 U. controlling then, here, is whether “The parents grants than rather delivered fact compel contrary significance as to* such schools * * * precisely Indeed, it is function of New result. schools, assistance law York’s reimbursing By majority great of which are sectarian. portion parents bill, the State seeks of their sufficiently to assure their financial burdens relieve *9 they option chil- continue to have the to send religion-oriented dren to And the other schools. while — purposes pluralistic perpetuate for a that aid integ- protect educational rity environment the fiscal — certainly public of over-burdened are schools unexceptionable, unmistakably the effect of the aid is support nonpublic, desired financial sec- * ** tarian institutions. suggested controlling
“First, it has been that it is significance program that New York’s for reim- calls already paid bursement for rather than for direct tuition merely through pár- contributions which are routed payment ents to schools, of or in lieu of advance by parents. parent conduit, not mere we absolutely money spend told, are but is free to he * * * receives in manner he wishes. similar .A inquiry governs grants here: if are offered an as parents incentive to send their children to sectarian by making payments schools cash them, unrestricted the Establishment Clause is violated whether or not the given eventually way actual dollars find their into sectarian institutions. Whether is labeled subsidy, reimbursement, a reward or its substantive impact is still same.” (1973),
To the same effect is Sloan v. Lemon 413 U. S. 825, 2982, 93 Ct. 939, 37 L. Ed. 2d wherein S. singled
said: “The State has out a class of its citizens special for a economic benefit. Whether benefit simple subsidy, be viewed as a as an incentive parents to send their schools, children to sectarian having a as so, reward done bottom intended its consequences preserve support religion-oriented to Day, See, also, institutions.” Almond 419, v. 197 Va. Patterson, 89 E. 2d 851; 503, S. Hartness v. C.S. Supp. 907; Essex, E. 2d v. S. 409 U. Wolman F. affirmed Kosydar 93 S. Ct. 34 L. 69; Ed. Supp. 744, 353 F. Wolman, affirmed 413 U. S. 1021; 37 L. Ed. 2d
S. Ct. Public Funds for Public Supp. Marburger, Jersey 29; 358 F.
Schools New People Klinger 2d 1, 56 Ill. ex rel. v. Howlett 305 E. 2d 129. N. arising questions Although these cases dealt with Constitution under First Amendment to the they specifically tuition allow- hold that States, United parents are, ances from funds private appropriations schools, and for, of, aid effect, or in impermissible. as are Direct such such allowance distinguished from their tuition funds to-the students parents present. is immaterial. same factors patent attempt It is a indirection that sanction which the Constitution forbids. Legis- intended
That aid to schools was *10 following language quite apparent from lature is the comprising part purpose of in section 1 of the declared independent of act, institutions this to-wit: “The capacity state have the increasing more students without handle faculty a facilities and can do so reduced or * * help grants; of cost to this state with Furthermore, tuition noted,
as heretofore
declarations made
Legislature during
of
on the floor of the
consideration
purpose
act
Further,
make this
obvious.
unless this
intention,
limited
would the
been
only
independent
students
attend
institutions
who
Limiting
grants
attending
students
in Nebraska?
independent
that all
institutions
Nebraska insures
of
these funds
inure
institutions not
will
benefit
or
state.
owned
controlled
Respondent
that L.B.
contends
1171 is invalid as
being
III,
of
section
of
in violation Article
the Consti-
any
prohibits
granting
Nebraska,
which
tution
corporation,
special
association, or individual
or
immunity,
privileges,
franchises
exclusive
whatever
provides
further
that in all
and which
other cases where
general
applicable,
special
can
a
law
be made
no
law
pointed
As we
out in
shall be enacted.
United Commu-
nity
Omaha
Bank
v. The
Nat.
Services
Neb.
may
Legislature
a
make
786,
“The persons, but it cannot take be termed what persons, split two, that class in and then natural class designate arbitrarily fractions of the dissevered original rules enact different unit as two classes and government of each.” this areas in which L.B. violates
There two 1.171 provision: reference constitutional The first with arguably are to students who benefit legislation; grants involves involved in this the other training may post high institutions school where they appear propositions two These received. L.B. related, while are nevertheless somewhat separate points. and distinct age; college must be resident students
they independent attend one of the must within they state; test, meet financial need must incidentally poverty test. The welfare student and admitted to a must domiciled in Nebraska years high college his in Nebraska within school spent military graduation. however, service, Years 5-year against not count this limit. will *11 appears eligible of students to receive It the class thus restricted. All students who is somewhat these benefits - colleges may participate. private to are admitted years who wait before students over Those eligible grants for in No are not event. admission exception complete appears for lack funds sickness or payment upon Age tuition. alone basic make military a inasmuch as claimed be factor be cannot exempted specifically computation in is service 5-year period. permissible grant Furthermore, no is qualifications students who' but who meet otherwise private wish attend schools outside the state. appears nature of the classification of the students primarily purpose aiding be private for the insti- in tutions rather resident students. than purpose needy securing If the is to aid post high ques- a education, school the classification is regard. training private tionable another in the schools is limited to the A academic field. student desiring private specializing a to enter institution ain vocational-type training eligible. is not if Even a student eligible seeking training vocational-type otherwise is appears institutions, one these authorized it he would eligible actually unless he is enrolled study degree. in a course leads an academic appears operate upon It equally to us the does not law singles all individuals in the state but a out select few gift taxpayers’ money whom tois be made. There is also as to the classification of the assuming colleges, even is law not invalid because of the sectarian nature and nature institu- tions concerned. Under the the school must statute either an accredited school as that term defined act school in existence at the time of the passage having pupils. a certain number of act reading clearly A of the floor indicates debate that the provision concerning purpose of the a school in existence pupils permit Kennedy with at least John F. participate College program. at Wahoo to in this benefit grandfather require This is a clause and sort does not Kennedy College long to become accredited. So as it eligible operatés, participate. However, no other qualify. in the future so In fact, school while it open appears that the class is insofar as church-related really concerned, the class is closed in all respects. foregoing, view In other we hold the
139 III, 18, section Constitution is in of Article act violation of Nebraska. urges
Respondent’s cross-appeal L.B. 1171 violates the First Amendment Clause Establishment applicable as made Constitution of the United States guarantee Amendment. The the states Fourteenth Amendment is of the First Establishment Clause protected against infringement by Fourteenth (1940), 310 U. Amendment. S. Cantwell Connecticut 1213, 128 R. 1352. 296, 900, 60 S. Ct. 84 L. Ed. A. L. (1971), 91 Ct. 602, In Lemon 403 U. S. v. Kurtzman S. Supreme 2105, 745, 29 L. Ed. 2d Court the United three-part pass States laid test for a statute to down against re- constitutional muster considered when They First, are: strictions Establishment Clause. legislative purpose; have a statute must secular primary principal second, its effect must be one religion; third, advances nor neither inhibits entangle- government an must foster statute excessive religion. ment with referred Committee for Public
We heretofore (1973), Religious Liberty Nyquist & Education L. Ed. U. S. Ct. which covered S. grant program for reimbursement a tuition secondary parents attending elementary of children nonpublic schools. In Sloan v. U. Lemon Ct. 37 L. Ed. 2d 825, 93 S. Court Pennsylvania legislative providing enactment held a portion parents of tuition ex to reimburse funds pense sending nonpublic children to incurred indistinguishable Nyquist, and voided schools was the statute. policies stipulation to certain
A written testimony colleges expected presidents various is a in this matter record case. of the various higher independent institutions education theOf grants, only attend to obtain resident which except related. All the others not church two two require religion. require some courses in Two them daily religious campus devotions attendance at serv- .or require religious ices. In the two no courses, predominate particular members denomination *13 controlling on the board. purpose
The stated of L.B. 1171 tois make tuition grants attending higher to students of institutions educa- operated privately profit. tion which and purpose of act is in It the stated section thereof. only clearly applied independent colleges and uni- This versities. includes those and universities operated by religious groups. which are controlled or attempt There is no made in the bill to restrict use the provided by of solely the funds tuition the state subjects. suggested, secular As all but four of the require religious institutions take some only respecting courses. is to be noted that the It limit religion appears (1) section the act. This section provides pursuing leading that a student courses ato divinity degree theological eligible or shall not be grants. tuition receive There no restriction proceeds through grants act that received these subjects, obviously secular so limited some institu- grants subjects. finance tions these sectarian This subjects alone shows and sectarian secular are so inter- supported by grants and twined the tuition L.B. the Establishment violates Clause. given, holding judgment the reasons we affirm For Court L.B. 1171 the District unconstitutional. specifically find in violation of III, We section Article ,11, VII, Article section 18, and Constitution also find L.B. 1171 We unconstitutional under Nebraska. Clause Establishment First Amendment question of the United States, which the Constitution did not cover. court trial Affirmed. dissenting. McCown, XJ., Clinton majority opinion holds the statutes here involved finding grounds, three separate unconstitutional on Constitu- 11, YII, section violate Article they (1) to the Con- Amendment tion of First Nebraska; (2) III, States; Article stitution the United (3) seems This of Nebraska. of the Constitution section us overkill and while judicial to be a case essentially numbered (1) based finding upon ground far as own precedents one of first so our impression or fall with- and must stand necessarily are concerned analogous directly authority (although out supporting of con- finding cases from other jurisdictions support on (2) grounds we feel stitutionality), findings both, sound either disregard misapply, (3) United States Court Supreme precedent when Constitution authority is the basic in- Ground (3) United is to be construed. States essentially and relates volves our state Constitution United States a classification applicable. issue are in principle on the opinions Court *14 as oné A statute the same the we essentially a three-judge considered by here under consideration District District the court in United States Court the United for Separation in the Americans of Kansas case Bubb,-F. & v. Supp.-(February Church the The that case collates 27, 1974). opinion of the Court opinions applicable principles availability of the of the States. Because United collation, we will in some instances this convenient in that case well as the opinion pri- from the as quote the sometimes authority adopt approximate and mary of that citation. specific without language opinion the of constitutionality first deal with We III, 18, of our Constitu- to Article section own it relates the asserted invalid “exclusive and privileges” tion re say: That majority opinion seems to classification. residents of (1) that the students be the requirement tests; financial Nebraska; they (3) meet certain (2) 5 within years must be admitted college they 142 military high graduation, the school time but years; (4) is excluded from those the
service that to attend a act applicable is private to not students who want (5) state;
school outside the and the act apply seeking type does to not train- vocational ing, all make classification invalid. the authority
No
whatever is cited. The limitations are
patently
purposes
related to one of the
of the act which
Legislature
are stated
relieve
load
university
on
and
same time
consequent
freedom
choice
the student with
taxpayers
pos
benefit
sible
state. Absent the
prohibiting
VII,
effect
Article
section 11, the
object sought
accomplished
legisla
to be
is within the
purview
Legislature
adopted
the means
tive
has
demonstrably
policy
are not
irrelevant
to this
adopt.
finding
majority
it would be free to
contrary
arbitrary
seems
us to be an
edict
applicable
fails
observe the
constitutional standard
following
found in the
cases:
York,
Nebbia v. New
502,
505,
U.
Ferguson
54 Ct.
L.
940,
S.
78 Ed.
89 A. L.
1469;
S.
R.
Skrupa,
U. S.
S. Ct.
L. Ed. 2d
95 A.
1347;
L. R. 2d
Allied
of Ohio
Stores
Bowers,
358 U.
S. Ct.
Adoption
on
decision based
of a
involving classifi-
cases
ill for
believe, bodes
future
we
greatly
judicial
questions.
wisdom
doubt
cation
We
precedent.
such
Separation of Church &
United
In Americans
supra,
classification
held the
Bubb,
the court
saying:
however,
settled,
“The law is well
valid,
protection
Amend-
equal
of the Fourteenth
clause
deny
power
to treat different
ment does not
state
pro-
differently;
persons
does
clause
classes
what
statutorily imposed
legislation treating those
is
hibit
wholly
differently
upon
unrelated
based
criteria
classes
to
statutory
objective
If
classifi-
statute.
ground
cation
of dif-
and rests on some
reasonable,
having
ference
a fair and substantial
relation
similarly
object
legislation
persons
so that all
violation of the
alike,
situated
treated
is no
there
protection
equal
Reed,
“Assuming arguendo produce the Statute does plaintiffs treatment, to show that still failed legitimate relationship Statute no rational bears purposes. Education, As noted Brown v. Board perhaps 483, 493 ‘education most U. S. important governments.’ And function of state and local institutions is enhanced role education competence raising knowledge, play in national levels of *16 144 experience.
and Allen, Board of Education 392 U. S. (1968). legitimate 236 interest State has therefore The advancing college population in of and its welfare of its educational institutions.” majority opinion completely ignores The mandate of our contained I, own Constitution in Article section provision worship, which after the for freedom of con- prohibition against compulsory science, and the attend- support place pro- worship ance and of of and the religious of hibition discrimination on account of belief goes say: “Religion, morality, or lack of it, on to and knowledge, being good government, however, essential to duty pass Legislature it shall be the suitable protect every religious to enjoyment peace- laws denomination in the public worship, able of its own mode of encourage schools and the means instruction (Emphasis supplied.) The words this section directing passage Constitution of suitable laws to encourage certainly schools mean more than mere statutory encouragement. “pass exhortation of The term only suitable laws” can mean laws which have an effect require implementation. and which This of our section Constitution cannot refer to the common schools mandatory required state, establishment of which is specific provisions VII, of Article section which Legislature reads: “The shall for the free in- struction in the common schools this state all persons ages twenty-one years.” between five and argument.
Let us now turn the First Amendment majority opinion properly upon relies the three- pronged test Lemon v. Kurtzman, 403 U. S. 2105, misapplies 745, but, S. Ct. L. Ed. 2d believe, we slightest it. religion is not There evidence of intent aid legislative purpose either stated stipulated evidence. Court of United repeatedly consistently has States held that prohibit First Amendment does not all contact between state church. As Justice Black said in Zorach v. (1952) Clauson, 343 S. 96 L. Ed. U. Ct. (as paraphrased Separation Americans United supra): Church & “. . if contact Bubb, . all prohibited policemen were between church parishioners help would not be allowed to into place worship, prayers legislative in our halls would prohibited, proclamation making Thanksgiving Day holiday refer- unconstitutional, and all running through ences to- laws, God our our *17 flouting rituals, and ceremonies the First would be Amendment.” interpretations Supreme Court of the United
States that Establishment does indicate Clause separation respects. example, demand in all For New City’s permitted public York schools release were to during school time those students who wished to attend religious operated building courses outside the school body. duly religous a constituted Zorach Clauson, v. supra. Jersey spend was New allowed tax dollars to pay parochial pupils. the bus fares of school Everson Education, v. Board of 330 91 U. S. 67 S. Ct. L. Ed. permitted New York order was local 711. charge
school authorities to lend textbooks free of grades through attending parochial students in 7 12 schools. Board Education of Central Dist. School No. 1 v. U. Allen, 392 S. 88 Ct. 20 S. L. Ed.
(1968). And Carolina South was allowed to issue rev provided Baptist enue a bonds which controlled col lege financial assistance the construction of in additional buildings and facilities. Hunt McNair, v. S. U. 93 S. Ct. L. Ed. 2868, 37 2d 923. including cases, United States Court supra, McNair,
Hunt v. have all reiterated: “Whatever may appeal, proposition its initial Estab- prohibits any program lishment Clause some religious aids institution a manner an with affiliation rejected. E.g., consistently has been Roberts, Bradfield v. (1899); 175 U. Walz Tax Comm’n, v. 397 U. S. (1970); supra. Tilton another Richardson, v. Stated way, accepted argument the Court has recurrent aspect that all aid is one forbidden because aid to spend an institution frees resources on it its other religious ends. normally thought primary
“Aid a advancing religion effect of to an institu- when flows religion pervasive tion in which is so substantial portion religious of its functions subsumed specifically religious activity mission or when it funds substantially setting. an otherwise secular In Tilton supra, Richardson, the Court refused strike down colleges federal to four direct and universities Burger, plural- Mr. Chief Justice Connecticut. for the ity, despite concluded that some institutional rhetoric, pervasively none of the four sectarian, but open possibility held for future ‘Individual cases: projects properly can be if and when chal- evaluated lenges respect particular recipients arise with presented evidence then that the insti- some to show possess tution does in fact these characteristics.’ 403 supra. S.,U. at 682.” McNair, Hunt pointed The cases have all out mere fact that that the *18 college a is church related does not bar aid and that a relationship mere formalistic does not render all in aid violation of the Establishment Clause. McNair, v. Hunt supra, proof showing 8. relationship note The of burden of the extent applying three-pronged of church upon plaintiffs. supra, is test McNair, Hunt v. note 8; Board Education of Central School Dist. No. 1 v. supra. Allen, legislative purpose clearly
In case the our a is secular To one: relieve the burden on institutions enabling qualifying students to attend the college A school on choice. purpose. a level not sectarian Committee for Public Religious Liberty Nyquist, & v. Education 413 U. 756, S. Americans United 948; 2d S. Ct. 37 L. Ed. supra. Separation Bubb, of Church & State present primary of ad- effect Does the act have the vancing religion? Nyquist, and Levitt cases S'loan, (all elementary Bubb) referred all involved secondary mission. Here the schools with sectarian colleges issue whether the involved have sectarian mission. To determine must look at that issue we Court did evidence. This is what the Federal District Separation in Americans United for & Church State supra, Bubb, in accordance directions with the Supreme McNair, Court of the United Hunt v. States in supra. recognizes Supreme Court the United States repeatedly has reiterated that aid education does necessarily have the same effect in church related higher learning parochial
institutions of as it does in elementary Commission, schools. Walz v. Tax 697; U. Ct. 25 L. Tilton v. S. Ed. S. Richardson, 403 U. 29 L. Ed. 2d S. Ct. supra. 790; McNair, federal Hunt v. The Kansas court criteria laid in the case referred summarizes the Court the United States down making following such determinations under con- (1) Religious on siderations: restrictions admission. religious (3) Required (2) at attendance activities. Re- dogmas particular quired obedience doctrine (4) theology Required faith. attendance courses on particular (5) faith. doctrine of a Are integral part religious church mission an opportunity sponsoring them. Mere for involvement is purpose disabling. (6) Is a substantial the inculca- religious religious (7) values. restrictions tion Are imposed faculty appointments. on
Accordingly required to examine the court separate evidence this make a determina- the tion case and reference to each of the with schools involved. Our perhaps would indicate two own examination *19 three the' schools involved be debarred p. that the Tilton, others are not. In at 687, the United States Court concluded: short, “In the evi- admittedly religious dence shows institutions with func- predominate higher tions but whose education mission is to their students with a education.” secular colleges In up- Tilton, direct aid to church-related saying: held, generally significant the court “There religious aspects differences between the of church- higher learning parochial related institutions of ele- mentary secondary schools. The if ‘affirmative policy’ dominant pre-college instruction church schools is ‘to particular assure future to a adherents by having faith early age.’ control of their total education at an By very college post-
. . . nature, graduate opportunities courses tend limit sectarian influence virtue of their own internal disci- (cid:127) pline. Many colleges church-related and universities are by high degree characterized of academic freedom and seek to responses evoke free and critical from their studying students.” We note here that students for the ministry are excluded from tuition aid under act. entanglement judgment, criteria is, our not applicable all in this case. question
We will now turn central and that is application of Article VII, section 11, of our own plan If, Constitution. of course, which the statute is not authorizes “in aid of” then the First Amendment effectively disposed issue of as is the Article VII, sec- question. tion possible
The sole any benefit which can accrue to question possibility the institutions in is get statute will for them more plan students. The does any portion relieve institutions of of their expense. costs The evidence shows that the cost of educating a student in each charge by
exceeds the tuition a substantial amount. The eligible which an student receive, will to- *20 paid by from his own funds gether him the amount with any equal the case cost sources, does not in or other educating institution student. The the the institution any It aided gets is not event. it would no more than in the constitutional sense. by analogizing point can well made be think the
We op- grants would the the method under which the State Nebraska manner in which erate to the veterinary medicine provides for students education veterinary surgery. has no school but state and University appropriate a sum Nebraska it does Veterinary “(8) money the School Fund.” as known University then contracts § 1943. The R. 85-122, R. accept veterinary schools to Nebraska with out-of-state charges training made same tuition for the residents to University students. The of Ne- resident own their Veterinary up from this difference the makes then braska reciprocity package part of this Fund. A School training in areas which own other schools afford. do schools not the fact that are contracts us
It seems paid University of by from tax Nebraska made change the color of the horse. Neither cannot funds exchanged that services are affect the the fact can transaction. nature procedure providing not believe that this
doWe veterinary education for Nebraska residents violates provision merely of” of our Constitution “in aid the state, outside which of course is a school because exclusively controlled owned state “not perform thereof,” is enabled better subdivision or because State of Nebraska function accom- its using plishes result facilities of out-of- desirable The benefit accrues to the state its state schools. people just pro- in the case of the tuition does aid considering. gram Yet if the are act are we we con- appropriation sidering unconstitutional, so is proceeds “Veterinary Fund,” which School go exclusively con- directly to “not owned and schools governmental subdivision there- trolled constitutionality appro- in the of that of.” We believe priation opin- precedent majority and abhor require, raised, ion if the issue is ever which would unconstitutionality appropria- declaration of the veterinary training tion principle if are adhere to we course, decisis. must This, stare we distinguishable do in cases if are to we principle governed by and are ourselves considered lawless. authority appellant’s pertinent brief sets forth quote directly
on the “in of” aid we *21 Community the brief: “. . Council v. 102 Jordan, . Supreme Ariz. 432 460 P. Arizona prohibition Court that state’s constitutional measured appropriations organizations of aid of’ ‘in sectarian against program whereby Department the State of provided matching (40%) Welfare funds $1.00 every spent by Army giving the Salvation $2.50 emergency needy holding relief residents. In that type reimbursement did not constitute the 40% by ‘aid’ that forbidden was the Arizona Constitution, that Court said: “ original ‘In fulfill the order to intent of the con- “separation” stitution, “aid” like the word word light contemporary society, must be in the viewed strictly meaning not held to the and context past. “ encouragement by partial ‘. . . reimbursement The. organization person any spend or an more than hardly “aiding” person organ- it will receive that is healthy or ization on financial future and in fact, preclude future at tend all.’ 432 P. 2d at . 466. . . interpretation given by “The term ‘aid’ supra, by expressed Jordan, has been Arizona Court
151 reim- well, other in tuition jurisdictions particularly In ex Johnson, bursement cases. rel. Atwood v. Court (1920) 170 Wis. 176 N. W. Bonus Educational the Wisconsin Wisconsin upheld financial assistance Law, an Act to continue their education after servicemen wished who institutions, Act that all discharge. provided non-sectarian, enrolled sectarian private, the state reimbursed by veterans would be qualifying through increase of costs incurred actual the bill Opponents attendance such students. on challenged ground its constitutionality ‘gives aid to financial schools.’ 176 N. W. at religious 224. To replied: the Wisconsin this Court “ ‘The contention financial benefit accrues from the Act is religious schools untenable. actual Only increased cost such schools occasioned at- by tendance of beneficiaries They is to be reimbursed. enriched service render. Mere reim- they bursement aid/ N. 176 W. (emphasis added).” Synod case of State, Dakota v. S. D.
N. W. 14 L. R. A. cited in the opinion, majority is not because applicable there the state paying of the cost of the percent education.
We continue appellant’s brief: “The ‘less than cost’ doctrine has also been adopted Illinois Supreme Court that part interpreting Illinois *22 - Constitution prohibits state ‘aid’ to in sectarian Dunn stitutions. In v. Chicago Industrial School for Girls, 613, 117 280 Ill. N. 735 (1917), E. that Court held Illinois’ constitutional prohibition on ‘aid’ to sectarian institutions was not violated when Cook Coun and paid per appropriated month ty $15 each girl committed court by juvenile to the Chicago In for Girls, School dustrial a school conducted Sisters Religious Mercy. This was so because the paid by cost amount state than it was less girls it if Train- were send ing ($28.88/month) the amount School Girls paid clothing, food, also than cost train- was ‘less ing, medical and tuition furnished to the care, wards county’ by (em- the phasis added). the institution. at 736 117 N. E. prohibited no
Thus, ‘aid’ resulted from payments. such adopted
“The Court of Oklahoma has this point Orphans same In view. Indian Murrow Home v. Childers, 197 Okla. P. 2d 600 it was payments Baptist held that state ato children’s home were in violation of the Oklahoma constitutional prohibition against appropriations ‘directly indirectly, support for the of’ benefit a church or sectarian in- stitution. demonstrated record that the State made payments per annual per child, but the actual $70 capita operating costs home were from $225 per child. The Oklahoma court $250 determined that only fulfilling duty State was not pay- its such receiving but that ments, also a substantial ele- arrangement. ment of return in such an As a result, payments were deemed be relevant ‘to the affairs of the State’ and not offensive to the state constitution.” clearly to us
This seems a case proposition where the (which up we consistently now rather adhered to), where there is reasonable doubt as to con- stitutionality upheld the statute must applicable. Dwyer Omaha-Douglas Building Public Commission, 188 Neb. 195 N. W. 2d 236. We would find the statutes constitutional.