RHODE ISLAND FEDERATION OF TCHRS. v. Norberg

• Decision Date: 16 November 1979
• Docket Number: Civ. A. No. 79-0429.
• Citation: 479 F. Supp. 1364
• Parties: RHODE ISLAND FEDERATION OF TEACHERS, AFL-CIO, et al. v. John H. NORBERG, in his capacity as Tax Administrator of the State of Rhode Island.
• Court: U.S. District Court — District of Rhode Island

479 F. Supp. 1364

RHODE ISLAND FEDERATION OF TEACHERS, AFL-CIO, et al. v. John H. NORBERG, in his capacity as Tax Administrator of the State of Rhode Island.

Civ. A. No. 79-0429.

United States District Court, D. Rhode Island.

November 16, 1979.

Julius C. Michaelson, Lynette Labinger, Providence, R.I., Natale L. Urso, Thomas J. Liguori, Jr., Westerly, R.I., for plaintiffs.

William G. Brody, Asst. Atty. Gen., John S. Foley, Sp. Asst. Atty. Gen., William T. Murphy, Providence, R.I., Robert M. Andersen, Milwaukee, Wis., for defendant.

OPINION

PETTINE, Chief Judge.

This case raises a challenge under the Free Exercise and Establishment Clauses of the First Amendment to the constitutionality of R.I.G.L. § 44-30-12(c)(2) as amended.¹ The law provides for deductions from gross income under the Rhode Island Income Tax Act for amounts paid by parents and guardians for their dependents' tuition, textbooks (including instructional materials and equipment), and transportation. As used in the statute, "textbooks" specifically excludes instructional books and materials used in the teaching of religious tenets, doctrines or worship. The benefits of the statute are available equally to parents whose children attend public as well as private elementary and secondary schools in any of the New England states.

The plaintiffs, a number of organizations and individual taxpayers, seek declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the United States Constitution. Plaintiffs have obtained a temporary restraining order preventing the defendant, the Tax Administrator of the State of Rhode Island, from taking any steps to prepare or print forms and instructions for the 1979 income tax returns that incorporate, refer or relate to the challenged deductions contained in the Act, and from permitting any taxpayer to claim deductions thereunder on 1979 tax returns. The Order has remained in effect pending entry of the decision and judgment of the Court. The matter is now before the Court for decision on the merits.

Based on a hearing and documentary evidence, the Court makes the following findings of fact. Of the 29,066 tuition-paying children who attend nonpublic schools in Rhode Island, over 94% attend sectarian schools.² The total number of students attending public schools in Rhode Island on an other than tuition-free basis is 321 students.³ Combining the foregoing figures, 93.4% of the children attending school in Rhode Island whose parents are eligible for the challenged tuition deductions attend sectarian schools.

Since the Act applies equally to taxpayers whose children are enrolled in elementary and secondary schools in the other five New England states, those enrollment figures would also be pertinent. No data seem to exist, however, that indicate either the number of Rhode Island children attending school outside the state or whether this number is large or small in relation to the number attending school within the state. Uncontroverted evidence does exist that at least 79% of the students enrolled in private schools in New England attend sectarian institutions.⁴ In the absence of contrary evidence, the Court believes that a reasonable inference can be drawn that the percentage of Rhode Island children attending sectarian schools in New England is consistent with this figure. In any event, the Court doubts that the number of Rhode Island children attending school in the other New England states is sufficient to significantly alter the conclusion that the overwhelming majority of parents eligible for the challenged tuition deduction send their children to sectarian schools. Accord, Public Funds for Public Schools v. Byrne, 444 F.Supp. 1228, 1229 (D.N.J.1978), aff'd, 590 F.2d 514 (3d Cir.), aff'd mem., ___ U.S. ___, 99 S.Ct. 2818, 61 L.Ed.2d 273 (1979).

No evidence has been submitted concerning transportation or textbook costs incurred by parents.

I. The First Amendment

Once again this Court is faced with the difficult and sensitive task of examining a Rhode Island statute within the framework of the religion clauses of the First Amendment. Although the Supreme Court and various commentators have devoted countless pages to discussions of the philosophical and historical underpinnings of these two clauses, they remain peculiarly immune from precise definition. The result has been that the Supreme Court's decisions in this area have, by the Court's own admission, reflected "considerable internal inconsistency." Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). These inconsistencies, perplexing even to constitutional experts, are particularly evident in the area of state aid to parochial schools, where, for example, the Court has made such fine distinctions as that between permissible state aid for textbooks, Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), and impermissible aid for maps, Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975).

Despite the inconsistencies and fine distinctions made by the Supreme Court, certain broad principles have emerged from the cases. Most important have been the principles that "the state should not become involved in religious affairs and that sectarian differences should not be allowed to fragment the body politic." Tribe, American Constitutional Law at 819. These principles, which trace their roots to James Madison's Memorial and Remonstrance, developed in response to the situation in the American colonies in which government-established religions led to cruel persecutions against nonbelievers. Justice Black, writing in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), depicted the situation in the colonies as follows:

A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches. . . .

These practices of the old world were transplanted to and began to thrive in the soil of the new America. The very charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized these individuals and companies to erect religious establishments which all, whether believers or nonbelievers, would be required to support and attend. An exercise of this authority was accompanied by a repetition of many of the old world practices and persecutions. Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects . . .. And all of these dissenters were compelled to pay tithes and taxes to support government-sponsored churches whose ministers preached inflammatory sermons designed to strengthen and consolidate the established faith by generating a burning hatred against dissenters.

Id. at 8-10, 67 S.Ct. at 508-09.

The Religion Clauses are no less valid today. Though it may be argued that state aid to parochial schools is a far cry from the establishment of religion typical of colonial times, the danger nevertheless exists that a law which extends material benefits to citizens along religious lines will greatly increase the risk of religious rancor. Justice Brennan has aptly noted that "government and religion have discrete interests which are mutually best served when each avoids too close a proximity to the other. It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government." Abington School District v. Schempp, 374 U.S. 203, 259, 83 S.Ct. 1560, 1591, 10 L.Ed.2d 844 (1963). Though separation of church and state is primarily to ensure an independent and neutral political system, it in turn keeps sacred the holy tenets of each individual's personal convictions.

It should be pointed out, however, that the wall of separation between civil and sectarian is not absolute. No one has seriously argued, for instance, that the state should be prohibited from providing churches and other religious institutions with police and fire protection. The state can undoubtedly provide religious institutions with incidental benefits that are afforded to all persons or institutions within a society. Walz v. Tax Commission, 397 U.S. 664, 676, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). It is the difficulty in determining whether the benefits are conferred on all members of society that has caused the Supreme Court to draw such perplexing distinctions.

In deciding the constitutionality of the Rhode Island statute at issue in this case, this Court cannot hope to reconcile all the fine distinctions made by the Supreme Court in the area of state aid to parochial schools. Rather, it is this Court's function to analyze the issues now before it, aided by the teachings of the various cases, and render a considered judgment in accord with the principles of the Constitution.

The Supreme Court has applied a three-part test in judging the constitutionality of various statutes under the Establishment Clause.⁵ See, e. g., Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). First, the statute must have a secular legislative purpose; second, it must have a primary effect that neither advances nor inhibits religion; third, the statute and its administration must avoid excessive government entanglement with religion. Although this three-part test is more difficult to apply than it is to state, it constitutes a convenient and accurate distillation of the Supreme Court's efforts over the years to adjudicate cases...