dissenting.
I must respectfully dissent from the majority opinion because it is both out of step with the times and out of date with the law.
The program established by the Kentucky statute is identical to the textbook loan system upheld by the United States Supreme Court fifteen years ago in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968).
The majority decision is out of step because it substitutes its judgment for that of the General Assembly. The legislature was within its rights when it recognized the right of individual students to public textbooks.
The result of the majority opinion is to deny the individual school students in the nonpublic schools of Kentucky the benefit of receiving loans of secular, state-approved books. I do not believe that the Constitution of this State, nor the United States, requires such a penalty for individual students and their parents.
The majority’s reliance on Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S.W.2d 963 (1943), is misplaced. Private school pupils may benefit from public funds expended for a public purpose as long as the source of the tax money is outside of those taxes specifically levied for public schools. Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930 (1945). The funds appropriated by the legislature for this program never accrued to the public school funds and specifically must be kept separate therefrom pursuant to KRS 171.215(5). Consequently, Section 186 of the Kentucky Constitution does not prevent nonpublic school students from receiving the benefit of book loans.
The law in question does not violate Section 189 of the Kentucky Constitution because the program is funded from general revenues and it does not benefit any particular religious school.
Under the program developed pursuant to the Kentucky statute, the textbooks in question are loaned by the Department of Libraries to individual children attending nonpublic schools. The books are distributed by the particular school attended by the student. The school serves only as an agent for the loan program. The true legislative intent for the system is the distribution without cost to the pupils attending Grade 1 through Grade 12 of the nonpublic schools of this state. The textbooks remain the property of the state and must be allocated each year to the students of the nonpublic schools as funds permit.
The Department of Libraries receives annual reports on the inventory of books distributed for student use and controls the disposition of the books after the use is complete.
The law specifically provides that only those books adopted by the State Textbook Commission for Public Schools may be loaned to a student in a nonpublic institution. Therefore, a child can only receive a state-approved secular book as part of this program.
From a procedural point of view the trial judge did not commit reversible error in granting a summary judgment in favor of the state librarian on the issues of the First and Fourteenth Amendments to the Federal Constitution. The trial judge was confronted with no genuine issue of material fact so as to prevent the granting of a summary judgment on the delegation of power and federal constitutional questions.
KRS 171.215 does not violate the Establishment Clause and the librarian was entitled to a summary judgment as a matter of law on the First Amendment issue. In Allen, supra, the United States Supreme Court rejected an Establishment Clause argument to a New York textbook loan pro*486gram under which secular books were furnished free of charge to all students in nonpublic schools. The court said that merely making available to all children the benefits of a general program to lend school books free of charge is a financial benefit to the parents and children and not to the school. The Kentucky plan is identical to the New York system in that it distributes the books directly to the student and not to the school with the state retaining ownership. The nonpublic school is only the custodian of the books. Ownership is never transferred to the school. KRS 171.215(4).
The Kentucky program is in every material respect the same as the plan approved in Allen. The tests set up by Allen are:
(1) Is there a secular legislative purpose to the challenged enactment?
(2) Is the primary effect of the enactment one that neither advances nor inhibits religion?
The purpose of the Kentucky law is to provide secular state-approved books, thereby encouraging the use of the same books in all Kentucky schools. The State furthers its interests in preparing children to intelligently participate as citizens in a democracy. The primary effect of the Kentucky law neither advances nor inhibits religion. The Supreme Court has long recognized that religious schools pursue two goals, religious instruction and secular education. Allen, supra, 392 U.S. at 245, 88 S.Ct. at 1927.
Only secular books may be loaned under the law making the effect of the program totally secular in nature. No evidence has been presented that these books will be used for anything other than purely secular purposes. See Meek v. Pittenger, 421 U.S. 349, 362, 95 S.Ct. 1753, 1761, 44 L.Ed.2d 217 (1975). The Kentucky law, KRS 171.215, simply extends to nonpublic school children the same opportunity to borrow state-approved and state-owned books that is made available to public school students under KRS 157.100. Similar textbook plans have been upheld in Meek, supra, and Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977). The Kentucky law is not in violation of the Establishment Clause of the First Amendment to the United States Constitution, and the summary judgment was proper.
It is fundamental that when textbooks are used by individual school children, they may be provided even if they are at times stored on private school property. Tribe, American Constitutional Law § 14-9 (1978).
The Kentucky law does not violate the Fourteenth Amendment. There is absolutely no evidence of any racial discrimination in this proposal.
The statute in question does not involve any unconstitutional delegation of power from the legislature to the State Librarian.
KRS 171.215 does not violate Section 3 of the Kentucky Constitution. There is no special privilege granted to any school, public or private. This is simply a legislative decision to share with all individual Kentucky school children the secular tools of education in order to satisfy the public purpose of creating an informed and educated citizenry regardless of the place or the teacher who made use of the books. The Kentucky law provides for the use of books by all people and is in absolute conformity with the true purpose of the Kentucky Constitution. As noted in Kentucky State Board for Elementary and Secondary Education v. Rudasill, Ky., 589 S.W.2d 877 (1979), there is a judicially-recognized public purpose in the education of youth so as to participate in a truly democratic society.
The law does not violate Section 5 of the Kentucky Constitution because it does not constitute a preference to any religious denomination, nor is it a contribution to the erection or maintenance of a place of worship or to the salary or support of any minister of religion. Similar to the bus transportation funds approved by this Court in Nichols, supra, the statutory plan does not offend the Kentucky Constitution § 5 simply because some of the individual beneficiaries may attend religious or nonpublic schools. The public purpose of achieving an educated citizenry is clearly a *487permissible public objective as previously stated throughout this dissent. This Court has permitted public benefits to flow through a nonpublic channel where purely a secular purpose is assisted. Kentucky Building Commission v. Effron, 310 Ky. 355, 220 S.W.2d 836 (1949).
The law does not violate Section 171 of the Kentucky Constitution because the private and parochial schools are not directly benefited. Again the avowed public purpose of this law is to educate individuals, and as such it is a permissible objective which may be aided through secular services and materials. Many years ago, the United States Supreme Court approved of a similar program in Louisiana. Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913 (1929). Also see, Effron, supra.
The Kentucky legislation does not violate Section 180 of the Kentucky Constitution because the funds provided to the Department of Libraries are not being used for any other purpose. There is no violation of the Constitution for general funds to be expended for a specific public purpose which might benefit the nonpublic school student. See, Nichols, supra.
KRS 171.215 does not violate Section 184 of the Kentucky Constitution because the appropriated funds come from the general revenues of the state. Section 184 implies that funds derived from levies for educational purposes be limited to those ends. Certainly funds collected for specific purposes can only be used for those purposes. On the other hand, taxes collected from other general revenue sources are not prohibited from being used for educational purposes. The statute in question does not offend Section 184 of the Kentucky Constitution in any way.
In the words of Mr. Justice Hugo Black of the United States Supreme Court, state power is no more to be used so as to handicap religions than it is to favor them. Parents may send their children to religious rather than public schools if the school meets the secular education requirements which the state has power to impose. The state must be neutral in its relations with groups of religious believers and nonbelievers. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1946).
The majority decision in this case is a giant step backward both in time and in the law. It results in arbitrary discrimination against individual children and their parents who choose to select nonpublic schools for educational purposes. The entire question has been answered by the United States Supreme Court in the Allen case more than fifteen years ago. This Court should not tamper with fundamental individual rights and resurrect a discredited doctrine of discrimination on the basis of individual educational preferences.
This Court should not disturb the legislative decision of the General Assembly. There is no constitutional infirmity in the challenged statutes. To strike down legislation solely because it incidentally benefits an individual’s private choice is itself a violation of the freedoms guaranteed by our Federal and State Constitutions. See, Tribe, supra.
AKER, J., joins in this dissent.