Wolman v. Essex

• Decision Date: 21 June 1976
• Docket Number: No. C-2-75-792.,C-2-75-792.
• Citation: 417 F. Supp. 1113
• Parties: Benson A. WOLMAN et al., Plaintiffs, v. Martin W. ESSEX, Superintendent of Public Instruction of the State of Ohio, State Board of Education, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

417 F. Supp. 1113

Benson A. WOLMAN et al., Plaintiffs, v. Martin W. ESSEX, Superintendent of Public Instruction of the State of Ohio, State Board of Education, et al., Defendants.

No. C-2-75-792.

United States District Court, S. D. Ohio, E. D.

June 21, 1976.

Joshua K. Kancelbaum, Cleveland, Ohio, Clyde Ellis, Stanley K. Laughlin, Jr., Columbus, Ohio, for plaintiffs.

David J. Young, Thomas V. Martin, Asst. Atty. Gen. of Ohio, Columbus, Ohio, for defendants.

Before JOHN W. PECK, Circuit Judge, and KINNEARY and DUNCAN, District Judges.

OPINION

KINNEARY, District Judge.

In this action plaintiffs attack the constitutionality of Ohio Revised Code Section 3317.06, pursuant to which certain services and materials routinely made available to students attending public schools throughout the state are made available to elementary and secondary nonpublic schoolchildren as well.

This matter is before the Court on the complaint and the answers, various memoranda submitted by the parties, an extensive stipulation of facts and the exhibits of the parties. The action was commenced under the provisions of Title 42, United States Code, Section 1983, and the Court has jurisdiction over the subject matter of this action under the provisions of Title 28, United States Code, Section 1343.

On July 1, 1975 this Court upheld the constitutionality of Ohio Revised Code Section 3317.062, the predecessor statute to that under consideration in this action, to the extent that the former statute provided only secular, neutral and nonideological services and materials to students attending nonpublic schools. While appeal of this Court's decision was pending, the United States Supreme Court rendered its decision in Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), and held that a Pennsylvania statute similar to the former Ohio statute was unconstitutional.

The Supreme Court vacated the judgment of this Court and remanded the case for further consideration in light of its decision in Meek. The Ohio General Assembly thereafter repealed the former statute and enacted the provisions now codified in § 3317.06 O.R.C. On November 17, 1975, this Court entered a consent order declaring the former statute to be violative of the First and Fourteenth Amendments.

In this action, this Court is once again called upon to review the constitutionality of Ohio's legislative attempts to provide auxiliary services and educational materials to the nonpublic schoolchildren throughout the state.

A three judge court was convened pursuant to Title 28, United States Code, Sections 2281 and 2284. On December 10, 1975, a temporary restraining order was issued prohibiting the defendants from implementing any provision of the statute. With the consent of the parties, that order was subsequently modified to permit the expenditure of monies necessary to purchase textbooks and textbook substitutes and to lend such items to nonpublic school pupils or to their parents pursuant to the statute.

I

Plaintiffs in this action are citizens and taxpayers of the United States and of the State of Ohio, and this Court concludes that these individual plaintiffs have standing to challenge the statute. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The defendants are various state and local officials charged with the implementation of the statute, and parents of children attending various nonpublic schools and who are potential recipients of the materials and services authorized by the statute.

Section 3317.06 O.R.C. was enacted as a portion of an omnibus education bill, and most of its sections relate to public school assistance. Briefly, the statute authorizes expenditure of monies by local school districts to purchase and supply to elementary and secondary schoolchildren attending nonpublic schools within the districts or to their parents the following independent and fully severable materials and services: secular textbooks, or textbook substitutes, approved for use in the public schools, § 3317.06(A) O.R.C.; secular and nonideological instructional materials and equipment as are in use in the public schools and which are incapable of diversion to religious use, and to hire clerical personnel to administer the lending program, § 3317.06(B), (C) O.R.C.; speech and hearing diagnostic services, physician, nursing, dental and optometric services, and diagnostic psychological services, to be provided in the nonpublic schools, § 3317.06(D), (E), (F) O.R.C.; therapeutic psychological and speech and hearing services, guidance and counseling services, remedial services, and programs for the deaf, blind, emotionally disturbed, crippled and physically handicapped children, to be provided in the public school, in public centers or in mobile units located off the nonpublic school premises, and transportation as needed, § 3317.06(G), (H), (I), (K) O.R.C.; standardized tests and scoring services such as are in use in the public schools of the state, § 3317.06(J) O.R.C.; field trip transportation and services as are provided to public school students, § 3317.06(L) O.R.C.

Under the statute, funds appropriated by the legislature are allocated by the Ohio Department of Education to the various local public school districts twice per year, based upon the estimated annual average daily membership in nonpublic elementary and high schools located within the district. Each local school district will then utilize the money either to purchase approved secular textbooks, instructional materials and equipment, standardized testing and scoring services and field trip transportation or to provide the diagnostic, remedial and therapeutic services authorized by the statute.

Textbooks, instructional materials and equipment, and standardized tests and scoring services are to be purchased directly from the supplier by the local public school district. Auxiliary health and special educational service personnel will be hired and paid by the local public school districts. Such personnel, furthermore, are to be controlled and supervised by the local public school districts.

Provision of the services or materials authorized by the statute is initiated by an application submitted to the local public school district from nonpublic school representatives. This application receives administrative approval or disapproval by the local public school district after consultation with a field service coordinator from the Ohio Department of Education, and formal approval from the local public school board of education.

The statute makes clear that the materials and services available under the statute are limited to those available to pupils attending the public schools within the district and, further, that the materials and services are to be made available to pupils attending only those nonpublic schools whose admission policies make no distinction as to race, creed, color or national origin of either its pupils or of its teachers.

II

According to the stipulations of the parties, approximately 96 percent of Ohio's nonpublic schools are denominational, and during the 1974-1975 academic year, Ohio's nonpublic schools educated over 250,000 students. The parties have furnished to the Court information regarding the operations of the Columbus Catholic elementary and secondary schools, stipulated to be fairly representative of the Catholic schools throughout the State of Ohio, which constitute approximately 86 percent of Ohio's nonpublic schools. These schools operate under the general supervision of the diocesan Bishop. While most (but not all) of the principals of such schools are religious personnel, more than two-thirds of the teachers in such schools are not. Further, most religious teachers no longer wear distinctive religious habits. Finally, the facilities of these schools often display a Christian symbol as well as the American flag.

All such schools teach the secular subjects required to meet the state minimum standards, and the parties have stipulated that, during the required secular courses, the pupils attending nonpublic schools are taught a course content generally equivalent to that taught in public schools. The state mandated five-hour school day is expanded in such schools to accommodate religious instruction and devotion for Catholic students. Discussion of topics upon which the Catholic Church has articulated a position is programmed to take place only in religion classes.

Teachers in such schools, a majority of whom are members of the Catholic faith, are employees of the schools in which they teach. However, no teacher in any such school is required to teach religious doctrine as a part of or to integrate religious doctrine into the required secular courses taught in the school.

Finally, it is to be noted that the statute challenged in this action extends the benefits provided thereunder only to those pupils attending nonpublic schools whose admission policies and hiring practices with respect to teachers make no distinction as to race, creed, color or national origin.

Although the stipulations of the parties evidence several significant points of distinction, the character of these schools is substantially comparable to that of the schools involved in Lemon v. Kurtzman, 403 U.S. 602, 615-18, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).¹

III

The Establishment Clause prohibits "sponsorship, financial support, and active involvement of the sovereign in religious activity." Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970). However, the Constitution does not compel an absolute separation between the state and religious institutions. Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 760-61, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). Thus some benefits extended to the public at large are constitutionally permissible, despite the resulting indirect and incidental benefits flowing to religious...