630 F.2d 855 (1st Cir. 1980), 79-1660, Rhode Island Federation of Teachers, AFL CIO v. Norberg

Docket Nº:79-1660.
Citation:630 F.2d 855
Party Name:RHODE ISLAND FEDERATION OF TEACHERS, AFL-CIO et al., Plaintiffs-Appellees, v. John H. NORBERG, Defendant-Appellant.
Case Date:September 17, 1980
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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630 F.2d 855 (1st Cir. 1980)

RHODE ISLAND FEDERATION OF TEACHERS, AFL-CIO et al.,

Plaintiffs-Appellees,

v.

John H. NORBERG, Defendant-Appellant.

No. 79-1660.

United States Court of Appeals, First Circuit

September 17, 1980

Argued May 5, 1980.

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William G. Brody, Asst. Atty. Gen., Providence, R. I., with whom Dennis J. Roberts,

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II, Atty. Gen., and John S. Foley, Sp. Asst. Atty. Gen., Providence, R. I., were on brief, for defendant-appellant.

Lynette Labinger, Providence, R. I., with whom Julius C. Michaelson and Abedon, Michaelson, Stanzler, Biener, Skolnik & Lipsey, Providence, R. I., were on brief, for plaintiffs-appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The principal question presented by this appeal is whether the district court properly concluded that a Rhode Island statute granting a state income tax deduction for tuition, textbook and transportation expenses incurred in sending dependents to primary and secondary schools in New England contravenes the Establishment Clause of the first amendment. Although judicial responses to the complexities of modern society have transformed the once "high and impregnable" wall erected between church and state by the first amendment, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), into a "blurred, indistinct and variable barrier," Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971), we agree with the district court's conclusion that, if allowed to stand, the statute would form an unconstitutional bridge between church and state.

In May of 1979, Rhode Island Governor Garrahy signed an amendment to the Rhode Island income tax statute 1 allowing as a deduction from gross income amounts paid to others for tuition, transportation and textbooks in sending dependents to public and private schools in New England. R.I.Gen.Law § 44-30-12(c)(2). 2 The deduction was limited to five hundred dollars for each dependent enrolled in kindergarten or grades one through six and seven hundred dollars for each dependent enrolled in grades seven through twelve. 3 The term "textbooks" included only secular instructional material and equipment. Id.

In August of 1979, a coalition of individuals and labor and civic organizations brought suit pursuant to 42 U.S.C. § 1983 alleging violation of the first amendment, 4 as applied to the states by the fourteenth amendment, challenging the constitutionality of the statute and seeking injunctive relief against its enforcement by John H. Norberg, Tax Administrator of the State of Rhode Island. A temporary restraining order issued pending a hearing on the merits. After the hearing, the district court found the statute violative of the Establishment Clause of the first amendment and enjoined its enforcement. Rhode Island Federation

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of Teachers v. Norberg, 479 F.Supp. 1364 (D.R.I.1979).

The State contends, on appeal, that the district court erred in concluding that (1) the tuition deduction had the primary effect of advancing religion; (2) the textbook and instructional materials and equipment deduction would have necessitated surveillance of the choice and use of materials selected, resulting in excessive government entanglement with religion; and (3) the transportation deduction could not be severed from the unconstitutional portions of the statute. We discuss these issues seriatim.

The Tuition Deduction

The State challenges the district court's conclusion that the primary effect of the tuition deduction was to advance religion on two grounds. First, the State argues that the court erred in assuming that the receipt of a tax benefit by parents whose children attend sectarian schools would result in receipt of a benefit by religious schools themselves. Second, the State contends that the court erred in applying Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), to this case, asserting instead that the case is controlled by Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).

In regard to the first argument, we observe that the district court found "that the primary effect of the tuition tax deduction is the advancement of religion," Rhode Island Federation of Teachers v. Norberg, 479 F.Supp. at 1371 (emphasis added), not religious institutions, as implied by the State. There is no requirement in this case that the plaintiffs prove that religious schools are directly benefited by the tuition deduction. It is sufficient that the plaintiffs show that a primary effect of the tuition deduction is to confer a special benefit on the parents who choose to send their children to sectarian institutions. The law carries the rest of the plaintiffs' burden, assuming, as a matter of common sense and experience, that conferral of a benefit for the performance of a religious act will make people more likely to continue to perform the act or to begin to perform it if they are not already doing so. The Supreme Court has stated in declaring tuition reimbursement grants for attendance at sectarian schools unconstitutional:

(I)f the grants are offered as an incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions.

Committee for Public Education v. Nyquist, 413 U.S. at 786, 93 S.Ct. at 2972. The Court made clear that conferral of similar benefits by tax device is equally unconstitutional, regardless of whether the dollars not paid in taxes ever reach the religious institution:

In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition grant allowed under § 2. The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State.

Id. at 790-91, 93 S.Ct. at 1274. By encouraging parents to send their dependents to religious institutions, the tax benefits aid the institutions themselves:

Special tax benefits, however, cannot be squared with the principle of neutrality established by the decisions of this Court. To the contrary, insofar as such benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions.

Id. at 793, 93 S.Ct. at 2975-2976.

Since the statute is facially neutral and does not speak in terms of sectarian schools,

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the more important question is whether the district court properly concluded that the tuition deduction had the primary effect of conferring a tax benefit on parents who send their children to sectarian schools. After reviewing the facts found by the district court, undisputed here by the State, and analyzing the facts which may properly be inferred as flowing from the Rhode Island income tax statute, we find the district court's conclusion to be sound.

The Rhode Island income tax system, like that of some other states, piggybacks on the federal income tax system. Rhode Island taxpayers may determine their state income tax liability in either of two ways. The first method simply sets the State tax at nineteen percent of the taxpayer's federal income tax. R.I.Gen.Law § 44-30-2(a). The second method requires reference to tax tables prepared by the State Tax...

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