Attorney for Appellants Attorneys for Appellees
Kenneth J. Falk Steve Carter
Indianapolis, Indiana Attorney General of
Indiana
Thomas M. Fisher
Special Counsel
Laureanne Nordstrom
Deputy Attorney General
Ellen H. Meilaender
Deputy Attorney General
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 49S02-0310-CV-479
Veronica Embry, Thomas G. Burns, George Nickas, and David Hoffman,
Appellants (Plaintiffs below),
v.
Frank O'Bannon, in his official capacity as Governor of Indiana, and
Suellen Reed, in her official capacity as Superintendent of Public
Instruction for the State of Indiana,
Appellees (Defendants below).
_________________________________
Appeal from the Marion Circuit Court, No. 49C01-0001-CP-120
The Honorable William Lawrence, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0112-
CV-863
_________________________________
October 29, 2003
DICKSON, Justice.
This is an appeal from a summary judgment denying relief in an action
brought by four Indiana taxpayers against Governor Frank O'Bannon and
Superintendent of Public Instruction Suellen Reed, head of the Indiana
Department of Education (collectively termed "the State"). The taxpayers'
lawsuit challenges the "dual-enrollment" process whereby the State provides
public funds "which are used to pay teachers who teach classes in parochial
schools and which are used to provide such things as internet services to
parochial schools." Br. of Appellants at 10. The taxpayers contend that
this practice violates Article 1, Section 6 of the Indiana Constitution,
which states: "No money shall be drawn from the treasury, for the benefit
of any religious or theological institution." (Hereafter "Section 6.")
Because this dual-enrollment process does not provide any substantial
benefit to the participating parochial schools or directly fund activities
of a religious nature, we hold that it does not violate Section 6, and we
affirm the judgment of the trial court.
In granting summary judgment for the State, the trial court made
extensive findings of fact and conclusions of law and concluded both that
the plaintiffs/taxpayers did not have standing to bring their claim and
that, even if they had standing, the challenged practice does not violate
Section 6. Affirming solely on grounds of lack of standing, the Court of
Appeals did not address the constitutional claim. Embry v. O'Bannon, 770
N.E.2d 943 (Ind. Ct. App. 2002). The plaintiffs petitioned for transfer.
Under Indiana Code § 21-3-4.5-1, a portion of the public funding
allocated to each Indiana public school corporation is directly
proportional to that corporation's "average daily membership" or "ADM."
Students enrolled in private schools may be counted in a public school
corporation's ADM if the student also: 1) enrolls in the public school, 2)
has legal settlement in the school corporation, and 3) receives
instructional services from the school corporation. Ind. Code § 21-3-1.6-
1.2. The Indiana Department of Education issued memoranda to all public
school superintendents in 1993, 1997, and 1999 advising that it interpreted
Indiana Code § 21-3-1.6-1.1 to allow nonpublic school students enrolled in
at least one specific class in the public school corporation to be counted
in the corporation's ADM.[1] Thereafter, many public school corporations
entered into dual-enrollment agreements with private schools in which the
public schools agreed to provide various secular instructional services to
private school students, on the premises of the private school, in return
for securing those students' enrollment in their respective public school
corporations. Among the courses offered to the dual-enrolled students are
fitness and health, art, foreign language, study skills, verbal skills,
music, and computer technology (including internet services).
The two plaintiffs from Lawrence Township in Marion County allege that
their township school corporation previously had a dual-enrollment
agreement with two parochial schools. While these agreements no longer
exist, the plaintiffs object to the continued use of state funds to benefit
parochial schools in townships currently operating under similar dual-
enrollment agreements. The plaintiff from the city of Mishawaka pays sales
tax and local taxes and objects to an ongoing dual-enrollment arrangement
between the School City of Mishawaka and a number of Roman Catholic
parochial schools, specifically, "the use of state funds to pay public
school teachers to teach parochial school students." Br. of Appellants at
9. The fourth plaintiff, a taxpayer in the city of Madison, objected to an
arrangement in effect at the time of the filing of this action between the
Madison Community Schools and the Prince of Peace Catholic Schools to
provide computer equipment, internet services, and teachers. Although the
Madison arrangement has since been discontinued, this plaintiff continues
to object to the use of state funds to benefit parochial schools under dual-
enrollment agreements still in effect. Id. Collectively, the plaintiffs
claim that the expanded curriculum and internet access made available for
use by parochial school students and paid for with public funds under these
dual-enrollment agreements violate Article 1, Section 6, of the Indiana
Constitution. They assert no federal constitutional claims.
When reviewing a grant or denial of summary judgment, our standard of
review is the same as that used in the trial court: summary judgment is
appropriate only where the evidence shows there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of
law. Ind. Trial Rule 56(C); Tankersley v. Parkview Hosp., Inc., 791 N.E.2d
201, 203 (Ind. 2003). Where the dispute is one of law rather than fact,
our standard of review is de novo. Freidline v. Shelby Ins. Co., 774
N.E.2d 37, 39 (Ind. 2002); see also LCEOC, Inc. v. Greer, 735 N.E.2d 206,
208 (Ind. 2000). The issues presented in this appeal are issues of law,
not fact, and will be reviewed accordingly.
1. Standing
Because of their status as taxpayers challenging the use of public
money in alleged violation of the Indiana Constitution, the plaintiffs
claim standing under Indiana's public standing doctrine, an exception to
the general requirement that a plaintiff must have an interest in the
outcome of the litigation different from that of the general public.
Cittadine v. Indiana Dep't of Trans., 790 N.E.2d 978, 980 (Ind. 2003);
Schloss v. City Indianapolis, 553 N.E.2d 1204, 1206 n.3 (Ind. 1990);
Higgins v. Hale, 476 N.E.2d 95, 101 (Ind. 1985). Both the trial court and
the Court of Appeals concluded that the plaintiffs lack standing to bring
this action, in reliance on Pence v. State, 652 N.E.2d 486 (Ind. 1995).
As we recently held in Cittadine, however, "Pence did not alter the
public standing doctrine," 790 N.E.2d at 983, which has been recognized in
Indiana case law for more than one hundred and fifty years and remains
viable today. Id. at 980, 983. Because the plaintiffs' complaint is not
grounded on a claim of private rights, but rather on their shared public
interest as taxpayers in the allegedly unconstitutional expenditure of
public funds, they fall within the public standing exception to the general
standing requirement, and are entitled to bring this action. This result
is also consistent with State ex rel. Johnson v. Boyd, 217 Ind. 348, 28
N.E.2d 256 (1940), in which this Court addressed the claims of taxpayers
challenging certain acts of the School City of Vincennes as violative of
Article I, § 6.
2. Article 1 § 6
The plaintiffs challenge the dual-enrollment process, claiming that it
results in money being drawn from the state treasury to benefit parochial
schools. They argue that this violates the plain meaning of Section 6, and
that their position is consistent with the history of the times surrounding
the adoption of our 1851 constitution and with the limited case law
interpreting Section 6.
Our standard of review of state constitutional claims is well
established. It requires:
a search for the common understanding of both those who framed it and
those who ratified it. Furthermore, the intent of the framers of the
Constitution is paramount in determining the meaning of a provision.
In order to give life to their intended meaning, we examine the
language of the text in the context of the history surrounding its
drafting and ratification, the purpose and structure of our
constitution, and case law interpreting the specific provisions. In
construing the constitution, we look to the history of the times, and
examine the state of things existing when the constitution or any part
thereof was framed and adopted, to ascertain the old law, the
mischief, and the remedy. The language of each provision of the
Constitution must be treated with particular deference, as though
every word had been hammered into place.
City Chapel Evangelical Free Inc. v. City of South Bend, 744 N.E.2d 443,
447 (Ind. 2001).
The text of Section 6 is brief: "No money shall be drawn from the
treasury, for the benefit of any religious or theological institution."
Ind. Const. art. I, § 6. This language did not appear in Indiana's 1816
constitution,[2] but was a product of the 1850-51 constitutional convention
and was included in our constitution of 1851 without any substantive
discussion at the convention.
The various religious clauses now contained in Sections 2 through 7 of
Article 1 were introduced together at the convention as Resolution Number
11, sections 2 and 3, in a report of the "committee on the rights and
privileges of the inhabitants of this State" by the committee's chair,
delegate Robert Dale Owen, on October 31, 1850. Journal of the Convention
of the People of the State of Indiana at 165 (reprint 1936) (1851). The
sections reported were ordered to a second reading. Id. at 166.
Resolution Number 11 underwent its second reading on December 4, 1850,
during which minor changes were made in wording and arrangement, none of
which altered the language of what is now Section 6. Id. at 349-50. The
resolution was passed without discussion on third reading on December 5,
1850, by a vote of 122-0, and was referred to the committee on revision,
arrangement and phraseology, id. at 352, where it emerged on February 1,
1851 in its present form and location as Section 6 of Article 1. Id. at
871.
Although there is no recorded discussion surrounding the consideration
and adoption of Section 6, the framers' intentions are evidenced in the
address by delegate Owen prepared at the conclusion of the convention for
the purpose of informing the people of Indiana regarding the changes
proposed in the revised constitution and aiding in securing its adoption:
In addition to the guarantees which find a place in the old
Constitution, to secure the rights of conscience and prevent the
imposition, on the citizen, of any tax to support any ministry or mode
of worship against his consent, it is provided, that no person shall
be rendered incompetent as a witness, in consequence of his opinions
in matters of religion; and that no money shall be drawn from the
treasury for the benefit of any religious or theological institution.
Both these provisions are found in the Constitutions of Michigan,
Wisconsin, and others of recent date.
Id. at 964. The delegates formally approved the address on February 8,
1851. Id. at 972.
The framers' purpose to "prevent the imposition, on the citizen, of
any tax to support any ministry or mode of worship against his consent"
does not expressly include or make any reference to educational
institutions with religious affiliations. There is evidence that the noun
"ministry," aside from its secular meanings, was understood at the time to
mean "[e]cclesiastical function or profession; agency or service of a
minister of the gospel or clergymen in the modern church, or priests,
apostles, and evangelists in the ancient." Noah Webster, An American
Dictionary of the English Language 716 (1856). This may suggest that the
framers intended Section 6 to prohibit public funds only for ecclesiastical
functions.
This interpretation may also be bolstered by comparing the language of
Section 6 to its counterparts in the Michigan and Wisconsin constitutions
identified by delegate Owen as its sources. Michigan's first state
constitution provided that "[n]o money shall be drawn from the treasury for
the benefit of religious societies, or theological or religious
seminaries." Mich. Const. of 1835, art. I, § 5 (emphasis added).[3]
Wisconsin's 1848 Constitution similarly states, in part, "nor shall any
money be drawn from the treasury for the benefit of religious societies, or
religious or theological seminaries." Wis. Const. art. I, § 18 (emphasis
added).[4] Thus the choice by the framers of Indiana's Section 6 to
exclude the phrase "or religious or theological seminaries" may indicate
that they did not intend it to apply to religious schools.
During the period of Indiana history after statehood in 1816,
education developed slowly. Our 1816 constitution declared, "[i]t shall be
the duty of the General Assembly, as soon as circumstances will permit, to
provide, by law, for a general system of education," Ind. Const. of 1816,
art. IX, § 2 (emphasis added), but no tax support was mandated. Donald F.
Carmony, Indiana, 1816-1850: The Pioneer Era 363 (Indiana Historical Bureau
& Indiana Historical Society 1998). To the extent that elementary school
education existed before the early 1830s, it was substantially provided by
the family or by religious or private schools. Id. at 368. Similarly,
"[f]rom statehood until 1850 secondary education was mainly at seminaries
and academies or at similar institutions with various names" and "conducted
principally under private or religious auspices." Id. at 394. Because the
distinction between public and private schools was so unclear, the meager
public funds available for education were often distributed to public and
independent schools alike, including those run by churches. Carl F.
Kaestle, Pillars of the Republic: Common Schools and American Society, 1780-
1860, at 166-67 (Hill and Wang 1983). By 1845-50, it is estimated that
"less than half of the youth between ages five and twenty-one attended such
schools for as much as three months in a year" and "[n]umerous of these
schools were private or denominational schools, recognized and in part
financed from taxes and proceeds from public school funds." Carmony,
supra, at 393.
During this same period, however, significant efforts were underway to
change Indiana's education practices. Special educational conventions were
held in 1837, 1839, 1847, and 1848. Id. at 378, 390. In an August 1848
statewide referendum of 140,410 voters, 56% favored, and 44% opposed, a
system of free common schools throughout the state supported by taxation.
See id. at 391. Caleb Mills, an ordained Presbyterian minister and one of
the key founders of, and a professor at, Wabash College, was the preeminent
advocate of education system improvement in Indiana in the mid 1800s.
Charles W. Moores, Caleb Mills and the Indiana School System 373 (Wood-
Weaver Printing Co. 1905). He presented a series of six addresses to the
General Assembly highlighting the existing illiteracy in the state; urging
a statewide system of free public schools and new forms of raising revenue
for public education; securing and adequately compensating better teachers;
providing standard textbooks; increasing the number of schools and
improving school facilities; and creating a state superintendent to direct
the school system.[5] Id. at 369-70. In four letters to the members of
the constitutional convention, Mills also presented many of his views
regarding education. See id. at 550-77. Public education did receive
considerable attention at the 1850-51 constitutional convention,[6] which
was reflected in its adoption of Article 8 establishing and providing
funding for a common school system and creating the position of State
Superintendent of Public Instruction. However, we find nothing in the
convention debates associated with Article 8 that illuminates our analysis
of the delegates' intentions as to Section 6 of Article 1.
While Caleb Mills was focusing Indiana's legislative and
constitutional leaders upon the need for a system of free public schools
and methods of financing the system, the "common school movement" launched
in the 1830s by vocal activists in the eastern states appears to have been
advancing a wider agenda. As a large number non-Protestants immigrated in
the 1820s and 1830s, fears that the growth of the Catholic population would
threaten the nation's future unity led many to advocate a school system
that would "teach common values," "combat the bad examples of parents,"
"spread republican values," and "secure social stability." Diane Ravitch,
American Traditions of Education, in A Primer on America's Schools 8-9
(Terry M. Moe ed., Hoover Institution Press 2001). One of the arguments
frequently advanced in favor of common schools was that "the increase of
foreign immigration . . . is a menace to our free institutions, and that
these new elements can be best assimilated in a system of publicly
supported and publicly directed common schools." Ellwood Patterson
Cubberly, Public Education in the United States: A Study and Interpretation
of American Educational History 165-66 (Houghton Mifflin Co. 1934) (1919).
The leaders of the movement were predominantly native-born Protestants who
had "no qualms about supporting a common-school policy that was openly
Christian, avowedly nonsectarian, and implicitly Protestant." Kaestle,
supra, at 98. Historian Lloyd P. Jorgenson presents evidence in his study
The State and the Non-Public School, 1825-1925 that many of the common
school movement leaders were "among the most vitriolic anti-Romanists of
their time." Id. at 33 (University of Missouri Press 1987). He writes:
"There was no mistaking the motivation behind these campaigns; the leaders
openly and boastfully made anti-Catholicism the dominant theme of their
attacks." Id. at 69.
With respect to Indiana, however, although the framers and ratifiers
presumably were apprised of these developments in other states, it appears
that such biases may not have significantly motivated the Indiana education
reform movement during the period before the 1850-51 constitutional
convention. By 1850, less than six percent of Indiana's inhabitants were
immigrants.[7] See Tyler Gregory Anbinder, Nativism and Slavery: The
Northern Know Nothings and the Politics of the 1850s, at 71 n.57 (Oxford
University Press 1992). It was after 1850 that Indiana experienced a rapid
growth of the Roman Catholic and immigrant populations. L.C. Rudolph,
Hoosier Faiths: A History of Indiana's Churches and Religious Groups 29
(Indiana University Press 1995). Although the forces most openly
advocating anti-immigrant and anti-Catholic positions, the "Nativism"
movement and the Know-Nothing Party, flourished in the East in the late
1840s, these forces did not become politically significant in Indiana until
the years following the adoption of the 1851 constitution. Emma Lou
Thornbrough, Indiana in the Civil War Era: 1850-1880, at 60-61 (1966).
Informed by history and by the recorded dialogue among the delegates at the
constitutional convention, it appears that anti-Catholic and anti-immigrant
biases may not have significantly influenced Indiana's 1851 constitution.
Because the present case may be determined on another basis, we need
not here decide the issue of whether the framers and ratifiers intended
Section 6 to apply to religious schools. The determinative issue is
whether the dual enrollment process challenged by the plaintiffs confers
substantial benefits upon the participating parochial schools or directly
funds activities of a religious nature. Neither the text of Section 6 nor
the circumstances surrounding its adoption, as outlined above, provide
guidance as to whether the phrase "for the benefit of" in Section 6 was
intended to erect an absolute prohibition against any expenditure of public
money that might confer merely pecuniary incidental benefit to a religious
institution. Upon the issue of incidental benefits, we find guidance in
prior Indiana case law. As observed by the plaintiffs, there are only two
appellate decisions that involve Section 6.
In State ex rel. Johnson v. Boyd, 217 Ind. 348, 28 N.E.2d 256 (1940),
this Court permitted the public school system in Vincennes to serve
approximately 800 school children who had previously been attending Roman
Catholic parochial schools prior to their closure by church authorities, by
conducting public schools in the same parochial school buildings, and by
employing as staff for the schools the "Sisters and Brothers [of] various
Catholic orders." Id. at 358, 28 N.E.2d at 261. The Court focused on the
total control of the schools by the public school system and found that
they were no longer parochial schools. It observed, "[w]e see no valid
reason why the said school trustees should not have leased the buildings
and equipment furnished by the church authorities" and noted with approval
cases from other jurisdictions that permitted religious buildings or
facilities to be rented or used for the purpose of conducting public
schools. Id. at 368, 28 N.E.2d at 265. Noting that the teachers, while
members of religious orders, were nevertheless properly licensed, taught
the course of education prescribed by the State Board of Education, and
provided no sectarian instruction in the schools during school hours, the
Court held that their salaries did not violate Section 6 as benefits for
religious or theological institutions. Id. at 372-73, 28 N.E.2d at 266-67.
In Center Township of Marion County v. Coe, 572 N.E.2d 1350 (Ind. Ct.
App. 1991), the Trustee of Center Township provided emergency shelter
assistance to the homeless under Indiana Code § 12-2-1-6 by entering into
agreements with private religious mission shelters whereby the township
paid the missions to feed and shelter a number of the township's homeless.
The missions required attendance at religious services as a condition of
receiving services, and some homeless persons complained that they were
forced to attend the services against their will because no other shelters
were available. In the resulting class action, the Court held that Section
6 was not offended by the mere fact that benefits accrued to the religious
missions under the agreements, but ruled for the plaintiff class because
the agreements themselves unconstitutionally conditioned access to publicly
funded shelter on attendance at religious services:
[W]e must conclude that the Trustee's use of the missions under these
circumstances does violate the Appellees' constitutional rights. The
trial court's order does not, however, prohibit the use of religious
missions as vendors of shelter services if the missions do not
condition the receipt of shelter on attendance at religious services.
As long as the missions provide the statutorily mandated benefit in a
manner which does not infringe the Appellees' constitutional rights,
the use of missions to provide shelter services is within the broad
discretion of the Trustee.
Id. at 1360.
A similar approach has been taken in those states after which Article
I § 6 was modeled – Wisconsin and Michigan. In State ex rel. Warren v.
Nusbaum, 198 N.W.2d 650 (Wis. 1972), the plaintiffs alleged that a statute
authorizing the state to contract with a church-related university for the
purchase of dental education services violated the Wisconsin Constitution's
prohibition against using public funds "for the benefit of religious
societies, or religious or theological seminaries." Wis. Const. art. I, §
18. The Wisconsin Supreme Court stated that:
"For the benefit of" is not to be read as requiring that some shadow
of incidental benefit to a church-related institution brings a state
grant or contract to purchase within the prohibition of the section.
This court has held that ". . . we cannot read sec. 18 (of Art. 1,
Wisconsin Constitution) as being so prohibitive as not to encompass
the primary-effect test. . . ." The applicability of the primary-
effect test is to make "the crucial question . . . not whether some
benefit accrues to a religious institution as a consequence of the
legislative program, but whether its principal or primary effect
advances religion." It is the primary effect of monies going from the
state treasury to a religious society or church-related institution
that determines if such payment is "for the benefit of" such society.
. . . Payments under a proper contract for providing dental education
by a church-related university need not be payments "for the benefit
of" a religious society or such church-related institution but can be
payments for the advancement of the dental health of the citizens of
this state. Art. 1, sec. 18 of the state constitution would not be
violated by a proper statute, a proper contract, or payments made
pursuant to such contract and statute.
Id. at 659 (emphasis added and footnotes omitted). In a later Wisconsin
case of the same name, State ex rel. Warren v. Nusbaum, 219 N.W.2d 577
(Wis. 1974), the Wisconsin Supreme Court upheld the constitutionality of a
state statute authorizing school boards to contract with private
educational services to provide educational benefits to children with
exceptional needs if such needs could not be met by the state. The Court
noted: "[t]he primary effect of [the statute] is not the advancement of a
religious organization but the providing of special educational services to
the handicapped children of Wisconsin, a secular purpose. Some incidental
benefit may accrue to a religious organization . . . ." Id. at 585.
In Advisory Opinion re Constitutionality of P.A. 1970, No. 100, 384
Mich. 82, 180 N.W.2d 265 (1970) the Michigan legislature requested an
opinion from the Michigan Supreme Court on the constitutionality of a state
statute authorizing public school teachers, paid with public funds, to
teach secular subjects in private schools "to foster, improve and advance
the quality of secular education, wherever offered, as an integral element
of the public welfare." Id. at 270. In finding the statute
constitutional, the court said:
"[I]ncidental benefits" to religious sects or societies do not
invalidate an otherwise constitutional statutory program plainly
intended and formulated to serve a public purpose. The same rule must
apply to our interpretation of the third sentence of art. 1, § 4. To
adopt a strict "no benefits, primary or incidental" rule would render
religious places of worship and schools completely ineligible for all
State services. There is no evidence, furnished or imaginable, that
the people intended such a rule when they adopted this provision of
the Constitution. Furthermore, a strict "no benefits" rule might
result in direct conflict with the final sentence of art. 1, § 4,
which guarantees that no person shall have his rights, privileges and
capacities diminished or enlarged on account of religious beliefs.
Id. at 274.
Similarly, in Dept. of Natural Resources v. Bd. of Trustees of
Westminster Church of Detroit, 318 N.W.2d 830 (Mich. App. 1982), the
Michigan Court of Appeals upheld the validity of a 50-year lease entered
into in 1925 by the Department of Conservation (lessor) and the Board of
Trustees of Westminster Church of Detroit (lessee). The plaintiffs claimed
that the lease benefited the church in violation of Article 2 § 3 of the
1908 Michigan Constitution, which read, "No money shall be appropriated or
drawn from the treasury for the benefit of any religious sect or society,
theological or religious seminary; nor shall property belonging to the
state be appropriated for any such purpose." The court stated that,
"[w]hile the constitution forbids the state from appropriating property for
a religious purpose, it does not prohibit the state from contracting to
lease property to a religious organization for valid consideration." Id.
at 832.
The interpretations by Michigan and Wisconsin of their state
constitutional counterparts to our Section 6, permitting incidental state
benefits to religious institutions, are consistent with this Court's
decisions in Boyd and Coe described above.
While acknowledging that dual-enrollment programs do not provide any
payment of public funds directly to religious institutions, the plaintiffs
urge that the dual-enrollment agreements provide specific benefits to
parochial schools because they make it unnecessary for the schools to hire
and pay as many teachers, and because the schools may use the resources
thus saved to expand curriculum and attract students. It is not disputed,
however, that the dual-enrollment programs provide obvious significant
educational benefits to the Indiana children for whom participation in a
dual-enrollment program affords educational resources and training in
subjects they would not otherwise receive. The programs likewise benefit
the State by furthering its objective to encourage education for all
Indiana students. In addition, the public school systems providing
instructional services under a dual-enrollment plan benefit from increased
public funding. Compared with the substantial educational benefits to
children, the increased attainment of the State's objectives, and the
additional funds made available to participating public school systems, we
find any alleged "savings" to parochial schools and their resulting
opportunities for curriculum expansion would be, at best, relatively minor
and incidental benefits of the dual-enrollment programs.
In summary, while the text of Article 1, Section 6, in the context of
history may be helpful in discerning whether its framers and ratifiers
specifically intended it to apply to the funding of religious schools, the
text and its historical context do not inform us whether the framers
intended to prohibit all public funds from providing merely incidental
benefits to religious and theological institutions. Indiana case law,
however, has interpreted Section 6 to permit the State to contract with
religious institutions for goods or services, notwithstanding possible
incidental benefit to the institutions, and to prohibit the use of public
funds only when directly used for such institutions' activities of a
religious nature. Because the dual-enrollment programs permitted in
Indiana do not confer substantial benefits upon any religious or
theological institution, nor directly fund activities of a religious
nature, such dual-enrollment programs do not violate Section 6.
Conclusion
Transfer is granted. Although we reverse the trial court's
conclusion that the plaintiffs lack standing to bring the instant action,
we affirm its conclusion that dual-enrollment programs do not violate
Article 1, Section 6, of the Indiana Constitution. Summary judgment is
therefore affirmed.
Rucker, J., concurs. Shepard, C.J., concurs in result. Sullivan, J.,
concurs in part 1 and concurs in result in part 2, with separate opinion
which Shepard C.J. joins. Boehm, J., concurs in result, with separate
opinion, in which Sullivan, J. concurs.
Sullivan, Justice, concurring in Part 1.
I concur in part 1 of the Court's opinion but write separately to give
more detailed attention to the question on which the Court of Appeals
resolved this case – the question of the taxpayer-plaintiffs' standing to
bring this lawsuit.
The majority cites our recent decision in State ex rel. Cittadine v.
Indiana Dep’t of Transp., 790 N.E.2d 978 (Ind. 2003), as authority for the
taxpayer-plaintiffs' standing here. Some further discussion of Cittadine
is useful to make clear that Cittadine, consistent with prior law, confers
taxpayer standing in constitutional cases only in limited circumstances.
Cittadine was not a constitutional case. That is, there was no
unconstitutional expenditure of public funds alleged in that case.
Cittadine did discuss our opinion in Pence v. State, 652 N.E.2d 486 (Ind.
1995), the principal authority relied on by the Court of Appeals in this
case. In that discussion, we unanimously held that the public standing
doctrine permits claims that government action is unconstitutional but,
because “[s]tanding is a key component in maintaining our state
constitutional scheme of separation of powers,” Pence, 652 N.E.2d at 488,
the “‘availability of taxpayer or citizen standing’” is limited to
“‘extreme circumstances,’” Cittadine, 790 N.E.2d at 983 (quoting Pence, 652
N.E.2d at 488) (emphasis in Cittadine).
Today's opinion deals with one such extreme circumstance – a
challenge brought under Article I, § 6, of the Indiana Constitution which
imposes an explicit limitation on the expenditure of state funds for the
benefit of religious or theological institutions.
Flast v. Cohen, 392 U.S. 83 (1968), provides a useful analogy. In
Flast, the Supreme Court held that federal taxpayers had standing to
challenge the expenditure of federal funds for teaching some subjects in
and purchasing instructional materials for religious schools as a violation
of the Establishment Clause of the First Amendment. In doing so, the Court
created an exception to the general rule stated in Frothingham v. Mellon,
262 U.S. 447 (1923), that a litigant does not have standing when the sole
basis for standing is that litigant’s status as a federal taxpayer. The
Court explained that standing is about “whether the party seeking relief
has ‘alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult
constitutional questions.’” Flast, 392 U.S. at 99 (quoting Baker v. Carr,
369 U.S. 186, 204 (1962)). Because taxpayers may have the requisite
interest in certain circumstances, the Court found that there was “no
absolute bar in Article III to suits by federal taxpayers challenging
allegedly unconstitutional federal taxing and spending programs.” Id. at
101.
The crux of the standing question, the Court said, rests on the
“nexus between the status asserted by the litigant and the claim he
presents.” Id. at 102. For federal taxpayers, the necessary nexus
requires both that the violation and the “precise nature of the
constitutional infringement alleged” relate to one’s status as a taxpayer.
Id. Essentially, “the taxpayer must show that the challenged enactment
exceeds specific constitutional limitations imposed upon the exercise of
the congressional taxing and spending power and not simply that the
enactment is generally beyond the powers delegated to Congress by Art. 1, §
8.” Id. at 102-03. The taxpayers in Flast showed just that, as they
challenged Congress’s expenditure of funds as a violation of the
Establishment Clause, which places a specific limit on Congress’s taxing
and spending power.
Although Flast does not control this case, its reasoning applies
here. As in Flast, the taxpayer-plaintiffs assert a violation of an
explicit limit on the General Assembly’s ability to draw funds from the
treasury. They challenge the power of the General Assembly to spend public
funds on the dual-enrollment process because the expenditures allegedly
violate Article I, § 6, of the Indiana Constitution: “No money shall be
drawn from the treasury, for the benefit of any religious or theological
institution.” This is not a case in which a party challenges government
action as exceeding its power where no clear limit is placed on that power.
These taxpayers have a concrete interest in having taxpayer funds spent in
a manner consistent with the explicit limit imposed on the General
Assembly’s spending power by Art. I, § 6.
We unanimously made clear in Cittadine that we “exercise . . .
judicial discretion with cautious restraint under the circumstances” in
deciding constitutional claims so as not to overstep the constitutional
limitations on the judiciary’s authority. 790 N.E.2d at 983. Because
there is an explicit constitutional provision that restrains the
Legislature in this case, the Court does not overstep these limitations in
deciding this challenge.
Shepard, C.J., joins.
BOEHM, J., concurring in result.
I agree with the majority in the portion of its opinion concluding
that plaintiffs have standing to assert their claims. I also agree with
the majority that expenditure of public funds for proper educational
purposes is not “for the benefit of” a religious institution even if the
delivery point of the educational services is a parochial school. Based on
these two points, I concur in the result reached by the majority.
I part company with the majority insofar as it concludes or implies
that Article I, Section 6 of the Indiana Constitution has nothing to say
about funding for parochial schools. That section provides in rather clear
language that “No money shall be drawn from the public treasury for the
benefit of any religious or theological institution.” Even if we accept the
meager historical evidence that animus towards Catholics was not part of
the thinking of the delegates to the 1851 Indiana constitutional
convention, it seems quite a stretch to conclude that a parochial school is
not a “religious institution” within the meaning of that constitutional
provision. No one claims that the church-affiliated schools involved in
this litigation provide a purely sectarian curriculum. Rather, although
they raise their pupils in different faiths, each of these schools teaches
its own single religious or theological doctrine as creed. That in my view
plainly renders each of them a “religious institution.”
There is nothing wrong with this, of course. Indeed, other provisions
of the Indiana Constitution affirm the rights of religious groups that I
think surely include the right to operate their own schools. Similarly,
in Article VIII, the constitution provides for public support for public
education. Thus, as the trial court pointed out, public support for
education of parochial pupils in subjects not offered by parochial schools
seems perfectly appropriate to me.
It is an entirely different question, however, whether all citizens of
the state can be compelled to pay for religious education with tax dollars.
The Indiana Constitution answers that in the negative. Article 1, Section
6 specifically prohibits public expenditures for “religious institutions.”
Schools of every denomination and faith are surely among these
“institutions” and the only issue is whether a particular expenditure is
“for the benefit” of the school. The majority reaches its conclusion that
parochial schools may not be religious institutions by pointing to three
items of historical interest: 1) one respected member of the 1851
convention, Robert Owen, described the Indiana provision as “found in” the
then-recently adopted constitutions of Michigan and Wisconsin; 2) Michigan
and Wisconsin prohibit expenditures for “religious seminaries”; 3) as
understood in the mid 19th Century, a “seminary” was a school of any type,
whether or not religiously affiliated. From these propositions, the
majority concludes that Indiana’s founders, by prohibiting funding of
religious “institutions,” intended to remove religious schools from the
list of prohibited beneficiaries of public largesse. I reach the opposite
conclusion. One obvious inference from these facts is that we should take
Robert Owen at his word. If the Indiana provision is “found in” other
earlier constitutions which barred funding of religious schools (described
as “seminaries” by our sister states), it follows that parochial schools,
Catholic or otherwise, were precisely the target of Article I, Section 6.
And to the extent there is significance in the selection of “institutions”
rather than “seminaries,” I would think that difference in language
supports the conclusion that the 1851 Constitution intended to expand, not
contract, the type of religious entities for which public expenditure is
prohibited. Surely a school or seminary is one form of “institution” as
the term was and is commonly understood.
To the extent the majority finds Michigan and Wisconsin authority
significant, I submit that these states both assume that a parochial school
is a “religious institution” and resolve the issue before them solely on
the question of whether an expenditure is “for the benefit” of the
institution. On that issue, both states focus on whether legislation has
the primary effect of advancing religion, and whether the legislature
designed the legislation to benefit a parochial school. Leading cases from
both states assume they are addressing a “religious institution” when
dealing with parochial schools and proceed to the “for the benefit of”
analysis. For example, in Advisory Opinion re Constitutionality of P.A.
1970, No. 100, 180 N.W.2d 265 (Mich. 1970), relied on by the majority, the
Michigan Supreme Court focused on the legislative purpose of the act in
question and the primary effect of the legislation, noting that incidental
benefits accrued do not, by themselves, invalidate a legislative enactment.
Id. at 270, 274. In Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998), the
Wisconsin Supreme Court specifically identified the case as turning on
whether or not the legislation’s primary purpose was “for the benefit of” a
religious institution, not whether the parochial school was a “religious
seminary” as the term appears in the Wisconsin Constitution, Article 1,
Section 18. Id. at 621. The Wisconsin Supreme Court was quite specific:
“[u]nlike the court of appeals, which focused on whether sectarian private
schools were ‘religious seminaries’ under art. 1, § 18, we focus our
inquiry on whether the aid provided by the amended MPCP is ‘for the benefit
of’ such religious institutions.” Id. In resolving this second issue, the
court took an approach similar to the majority’s approach to the “for the
benefit of” problem: “[t]he crucial question, under art. 1, § 18, as under
the Establishment Clause, is not whether some benefit accrues to a
religious institution as a consequence of the legislative program, but
whether its principal or primary effect advances religion.” Id. (citations
omitted).
In sum, I agree that the legislation involved in this case is
constitutional because it does not expend funds for the benefit of a
religious institution. But the majority would implicitly leave the door
open to public funding of sectarian schools. The Constitution stands
squarely against that proposition, and for that reason I respectfully
dissent from the portion of the majority opinion addressing the religious
institutions issue.
SULLIVAN, J., concurs.
-----------------------
[1] Subsequent to the filing of this lawsuit the ADM statute was
amended to provide that dual-enrolled students may be counted for ADM
purposes only in proportion to the amount of time they are actually
instructed by public school teachers. Ind. Code §21-3-1.6-1.2 (Supp.
2002).
[2] The provisions regarding religious freedom in the 1816
constitution are contained in Article 1, Section 3, as follows:
That all men have a natural and indefeasible right to worship Almighty
God, according to the dictates of their own consciences: That no man
shall be compelled to attend, erect, or support any place of Worship,
or to maintain any ministry against his consent: That no human
authority can, in any case whatever, control or interfere with the
rights of conscience: And that no preference shall ever be given by
law to any religious societies, or modes of worship; and no religious
test shall be required as a qualification to any office of trust or
profit.
[3] Shortly after October 31, 1850, when the language of Section 6 was
proposed to the delegates at our constitutional convention, Michigan
adopted a new constitution in which this language was replaced with: "No
money shall be appropriated or drawn from the treasury for the benefit of
any religious sect or society, theological or religious seminary, nor shall
property belonging to the state be appropriated for any such purposes."
Mich. Const. ratified Nov. 5, 1850, art. IV, § 40.
[4] According to one Indiana historian, the course of study in
"seminaries" at the time was similar to that of high schools today. Logan
Esarey, History of Indiana 108 (Harcourt, Brace and Company, Inc. 1921).
Another source, however, reports that seminaries provided both elementary
and secondary instruction in most counties. Richard Gause Boone, History
of Education in Indiana 49 (Indiana Historical Bureau 1941) (1892). The
1856 dictionary defined the term "seminary" as "[a] place of education; any
school, academy, college, or university, in which young persons are
instructed in the several branches of learning which may qualify them for
their future employments." Webster, supra, at 1005. In contrast, it
described "primary school," as a school for instructing children in the
first rudiments of language and literature, and explains that it was also
called a "common school," because "it is open to the children of all the
inhabitants of a town or district." Id. at 988.
[5] Although Caleb Mills did favor discontinuing public funds for
private schools, his reasons related strictly to the effective use of
scarce public resources, see Moores, supra, at 618, and not to the
elimination of Christian religion, which he advocated be emphasized in
"every school-room, college, and legislative hall in our land," id. at 432.
In his Second Address to the legislature, Mills declared: "The Bible is
too deeply enthroned in the hearts of the people, to be excluded from our
common schools, and other institutions of learning." Id. at 459.
[6] Among the delegates to the convention were Daniel Read, a
professor at Indiana University, and John I. Morrison, a principal of a
school at Salam and "one of the ablest teachers the State has ever had."
Id. at 391. Morrison was Chairman of the Committee on Education at the
convention.
[7] We note, however, that at the conclusion of the 1850-51
convention, 5,000 copies of the proposed constitution were ordered printed
in German for distribution to voters before the ratification election.
Journal, supra, at 995.