Gaffney v. State Department of Education

Clinton, J.,

dissenting.

McCown, J., joining.

L. B. 659, Laws 1971, held by the majority opinion to be unconstitutional, does two things. First, it imposes *371upon boards of education the duty to purchase and loan textbooks to all children in grades kindergarten through 12 of the public schools and, upon individual request, to loan textbooks to children enrolled in grades 7 to 12 of those private schools approved for operation under section 79-328(5) (c), R. R. S. 1943. The textbooks to be loaned were those designated for use in the public schools. Secondly, it provides that the public school districts should be reimbursed from state funds for the cost of the textbooks purchased and loaned to both classes of students. These state funds were not to exceed an amount equal to an average of $15 per pupil for those enrolled in grades 7 to 12 in the public and private schools within the district for certain named years and not to exceed $10 per pupil per year thereafter.

The act recites that its purpose is, among others, to afford more adequate educational opportunities and that these purposes are important for the general welfare of the state.

The determination of the constitutionality of any legislative act may require the examination of several sections of our Constitution. In this case it seems clear that the majority has not only had to twist the language of Article VII, section 11, but also has disregarded other pertinent constitutional provisions which, in my judgment, seem to remove any doubt whatsoever as to the correct construction and interpretation of Article VII, section 11. Likewise, they have paid scant attention to what seems to be the most direct and weighty authority in point. We will discuss the latter assertion first.

In Board of Education of Central School Dist. No. 1 v. Allen, 27 App. Div. 2d 69, 276 N. Y. S. 2d 234, 20 N. Y. 2d 109, 281 N. Y. S. 2d 799, 228 N. E. 2d 791, there was considered a New York statute which in substance is the same as the one here involved, and a provision of the New York Constitution just as or more restrictive than our own constitutional provision. The New York *372Court of Appeals upheld the constitutionality of the statute under the provisions of the state Constitution. Its decision on the separate but related question of constitutionality under the Establishment Clause of the First Amendment was reviewed by the Supreme Court of the United States in Board of Education v. Allen, 392 U. S. 236, 88 S. Ct. 1923, 20 L. Ed. 2d 1060. The court necessarily had to consider whether a benefit accrued to the private schools. In- other words, it had to determine whether there was an aid to the schools. The-concept considered by the Supreme Court of the United States was essentially the same as that involved in the state constitutional question and the one before us here.

The New York Court of Appeals said: “Since we must reach the merits in this case, we ■ come to the, question whether this statute violates section 3 of article: XI of the New York State Constitution: ‘Neither the state nor any subdivision thereof shall use its property- or credit- or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for the examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught

“The purpose underlying section 701, found in the Legislature’s own words (L. 1965, ch. 320, § 1, supra), belies any interpretation other than - that the statute-is meant to bestow a public benefit upon all school children, regardless of their school affiliations. There can be no serious suggestion that the declaration of-purpose by the Legislature was a verbal smoke screen designed to obscure a nefarious scheme to circumvent the New York State Constitution. No one in the last: third of the 20th Century can doubt that a program aimed at improving the quality of education in all schools is a matter of legitimate State concern.

“Since there is no intention to assist parochial schools' *373as. such; any benefit accruing to those schools is a collateral éffect of the - statute, and, therefore, . canndt' be-properly classified as the giving- of aid directly or in-' directly..... ■ '

■■“Having decided that section 701 entails no aid to the parochial schools, we' thus hold that there is no Federal constitutional question under the establishment clause of the First Amendment. The State makes no affirmation of religious beliefs or activities within the public schools. Section-'701 remains completely neutral' with respect to religion, merely making available secular textbooks at the request of the individual student and asking no question about what school he attends. Despite' the flexibility of the English language, it is impossible, tó conclude that loaning nonreligious textbooks to all' students, including those who attend a parochial school, establishes a religion or constitutes the use of public funds to aid religious schools (cf. Everson v. Board of Educ., 330 U. S. 1, 16, 18).” Board of Education of Central School Dist. No. 1 v. Allen, supra.

The Supreme Court of the United States said: “The express purpose of § 701 was stated by the New York Legislature to be furtherance of the educational opportunities available to the young. Appellants have shown us nothing about the necessary effects of the statute that is contrary to its stated purpose. The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are' furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not tó. schools. Perhaps free books make it more likely that: some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution.” Board of Education v. Allen, supra.

*374Our own Constitution prohibits an “appropriation . . . in aid of ... [the] institution.” In 1972 the constitutional provision was amended to provide: “Appropriation of public funds shall not be made to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof.

“All public schools shall be free of sectarian instruction.

“The state shall not accept money or property to be used for sectarian purposes; Provided, that the Legislature may provide that the state may receive money from the federal government and distribute it in accordance with the terms of any such federal grants, but no public funds of the state, any political subdivision, or any public corporation may be added thereto.” Art. VII, § 11, Constitution of Nebraska.

We must decide the question, of course, under the language of the Constitution in effect at the time of the enactment of the statute. Central Nat. Bank v. Sutherland, 113 Neb. 126, 202 N. W. 428.

The majority opinion chooses to disregard and significantly, we believe, fails to mention the stipulated facts upon which the case was tried as though those facts were irrelevant. The stipulation provides: “The plaintiffs in the case of each of their children attending private grade schools and private high schools and on behalf of each of their children have been required to purchase or rent text books for use in their children’s classes.” It is further stipulated that the cost of “book fees” is in the amount of $25 for each child. “The cost of providing textbooks has been and will be a continuing financial burden upon plaintiffs and further that they are members of a class intended to be aided by L. B. 659.” It is clear that the Textbook Loan Act does not relieve the private school of any of its obligations. It receives no aid or benefit and obtains no more dollars than it would otherwise have. The legislation in question seems clearly to be public benefit legislation apply*375ing alike to children in all schools and gives a certain modest measure of financial relief to all parents from the tax sources to which all alike contribute. Such legislation has a long history of legislative and judicial approval going back at least to 1929.

In Borden v. Louisiana State Board of Education, 168 La. 1005, 123 S. 655, 67 A. L. R. 1183, the Supreme Court of Louisiana considered a statute similar to the one here considered and a comparable state constitutional provision. The court said: ‘Section 8 of article 4 prohibits, among other things, the taking of money from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion, or in aid of any priest, preacher, minister, or teacher of religion as such, or for private, charitable, or benevolent purposes to any person or community, excepting certain institutions conducted under state authority. Section 4 of article 1 relates to the right to worship God according to the dictates of one’s own conscience, and prohibits the passage of laws establishing religion, or the free exercise thereof, or the granting of preferences to, or making discriminations against, any church, sect, or religious creed. Section 13 of article 12 prohibits the using of public funds for the support of any private or sectarian school. Section 12 of article 4 prohibits, among other things, the lending, pledging, or granting the funds, credit, property, or things of value of the state or of any political corporation thereof to or for any person or persons, association, or corporation, public or private.

“In our opinion, which is the view of the majority of the court, these acts violate none of the foregoing constitutional provisions. One may scan the acts in vain to ascertain where any money is appropriated for the purchase of school books for the use of any church, private, sectarian, or even public school. The appropriations were made for the specific purpose of purchasing school books for the use of the school children of the state, free of cost to them. It was for their benefit and *376the resulting benefit to the state that the áppropríations were made. True, these children attend some school, public or private, the latter, sectarian or nonsectarian, and that the books are to be furnished them for their use, free of cost, whichever they attend.' The schools, however, are not the beneficiaries of these appropriations. They' obtain nothing from them, nor are they relieved of a single obligation^ because of them.”

-This decision of the Louisiana Supreme Court was reviewed by the Supreme Court of the United States in Cochran v. Board of Education, 281 U. S. 370, 50 S. Ct. 335, 74 L. Ed. 913, to determine whether it violated the Fourteenth Amendment to the Constitution of the United States. In an opinion by Mr. Chief Justice Hughes, the court said: “The contention of the appellant under the Fourteenth Amendment is that taxation for the purchase of school books constituted a taxing of private property for a private purpose. Loan Association v. Topeka, 20 Wall. 655. The purpose is said to be to aid private, religious, sectarian, and other schools not embraced in the public educational system of the State by furnishing text-books- free to the children attending such private schools. The operation and effect of the legislation in question were described by the Supreme Court of the State as follows (168 La., p. 1020).” The court then quoted a portion of the opinion which we have earlier set forth.

■ The direct and clear construction contained in the language of the two state Supreme Courts-and the Supreme Court of the United States in the foregoing cases is in sharp- contrast to the strained construction relied on in the majority opinion in this case which in effect equates the children and the institution.

Other decisions of state Supreme Courts are in point. See, Opinion of the Justices, 109 N. H. 578, 258 A. 2d 343 (1969); Bowerman v. O’Connor, 104 R. I. 519, 247 A. 2d 82 (1968); Chance v. Mississippi State Textbook R. & P. Board, 190 Miss. 453, 200 S. 706. The New *377Hampshire Supreme Court said: “Our State Constitution bars aid to sectarian activities of the schools and institutions of religious sects or denominations. It is our opinion that since secular education serves a public purpose, it may be supported by tax money if sufficient safeguards are provided to prevent more than incidental and indirect benefit to a religious sect or denomination. . . .

“Senate Bill 327 would provide for the loan or sale of public school textbooks to pupils enrolled in nonpublic schools. Since the books would be confined to those required for use in public schools, they would presumably include only books on secular subjects. In our opinion this bill if enacted would be constitutional. Board of Education v. Allen, supra; Everson v. Board of Education, supra; Opinion of the Justices, 99 N. Y. 519, supra; Opinion of the Justices, 99 N. H. 536, supra. Our answer presumes that the books will be loaned free of charge, or sold at cost, to the pupils, as this bill provides.” Opinion of the Justices, supra.

' The Supreme Court of Mississippi approved a plan similar to that authorized by our own Legislature. Pertinent portions of the statutes and state Constitution as found in the opinion are these: “It is further provided in section 208 thereof: ‘. . . nor shall any funds be appropriated toward the support of any sectarian school, or to any school that at the time of receiving such appropriation is not conducted as a free school.’

“Chapter 202, Laws 1940, is an act to establish a State' Textbook Rating and Purchasing Board, with power to select, purchase and distribute free textbooks by loaning same to the pupils through the first eight grades in all qualified elementary schools located in the state.

“Section 23 of the act provides as follows:.

“ ‘This act is intended to furnish a plan for the adoption, purchase, distribution, care and use of free textbooks to be loaned to the pupils in the elementary schools of Mississippi.

*378“ ‘The books herein provided by the board shall be distributed and loaned free of cost to the children of the first eight grades in the free public elementary schools of the state, and all other elementary schools located in the state, which maintain elementary educational standards equivalent to the standards established by the state department of education for the state elementary schools.’ ” Chance v. Mississippi State Textbook R. & P. Board, supra.

We now consider the effect of pertinent provisions of our own Constitution in addition to Article VII, section 11, and in so doing quote from our dissent in State ex rel. Rogers v. Swanson, ante p. 125, 219 N. W. 2d 726: “The majority opinion completely ignores the mandate of our own Constitution contained in Article I, section 4, which after the provision for freedom of worship, conscience, and the prohibition against compulsory attendance and support of any place of worship and the prohibition of discrimination on account of religious belief or lack of it, goes on to say: ‘Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the legislature to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.’ (Emphasis supplied.) The words in this section of the Constitution directing the passage of suitable laws to encourage schools certainly mean more than a mere statutory exhortation of encouragement. The term ‘pass suitable laws’ can only mean laws which have an effect and which require implementation. This section of our Constitution cannot refer to the common schools of the state, the mandatory establishment of which is required by the specific provisions of Article VII, section 1, which reads: ‘The Legislature shall provide for the free instruction in the common schools of this state of all persons between the ages of five and twenty-one years.’ ” Article I, section 4, therefore can *379refer only to “schools and the means of instruction,” other than the public schools lawfully operated under the laws of this state.

The state’s interest in education is obviously not limited to children in attendance at public schools. In Meyerkorth v. State, 173 Neb. 889, 115 N. W. 2d 585 (1962), we held that the statutes and regulations concerning parochial, denominational, or private schools providing for compulsory school attendance, certification of teachers, and for operation and supervision of said schools are not unconstitutional and were a valid exercise of the police power of the state. In so holding we said: “The above-cited statutes set up a standard for a good education. They allow churches and private groups to establish schools on the same basis. They require each child to be exposed to a school a certain number of months. Private and parochial schools are a part of the educational system of this state.” See, also, § 79-1701, R. R. S. 1943.

The constitutionality of the textbook loan act does not, in the light of the totality of the pertinent constitutional provisions and the cited authorities, seem at all doubtful. Even if the constitutionality of the act were doubtful there would be applicable that salutary stricture on our own powers, enunciated innumerable times by us: Statutes are to be upheld by the courts unless unconstitutional beyond reasonable doubt. State v. Standard Oil Co., 61 Neb. 28, 84 N. W. 413 (1900); Smith v. Chicago, St. P., M. & O. Ry. Co., 99 Neb. 719, 157 N. W. 622 (1916); Central Markets West, Inc. v. State, 186 Neb. 79, 180 N. W. 2d 880 (1970); Dwyer v. Omaha-Douglas Public Building Commission, 188 Neb. 30, 195 N. W. 2d 236 (1972).

We would hold that the Legislature was clearly within its constitutional authority in enacting the Nebraska Textbook Loan Act, section 79-4,118, R. R. S. 1943, because it serves a lawful public purpose and does not in fact aid the private school.