676 F.2d 1195 (8th Cir. 1982), 81-1569, Mueller v. Allen

Docket Nº:81-1569.
Citation:676 F.2d 1195
Party Name:Van D. MUELLER, individually and on behalf of the taxpayers of the State of Minnesota; June Noyes, individually and on behalf of the taxpayers of the State of Minnesota, Appellants, v. Clyde E. ALLEN, Jr., Commissioner of the Department of Revenue for the State of Minnesota, and Dennis J. Berthiaume; Karen F. Berthiaume; Thomas W. Dzik; Mary J. Dzi
Case Date:April 30, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1195

676 F.2d 1195 (8th Cir. 1982)

Van D. MUELLER, individually and on behalf of the taxpayers

of the State of Minnesota; June Noyes,

individually and on behalf of the

taxpayers of the State of

Minnesota, Appellants,


Clyde E. ALLEN, Jr., Commissioner of the Department of

Revenue for the State of Minnesota, and Dennis J.

Berthiaume; Karen F. Berthiaume; Thomas W. Dzik; Mary J.

Dzik; Edward F. Fujan and Joleen A. Fujan, and Brenda B.

Becker; Richard C. and Marjorie Hollingsworth; Roger and

Dorothy Haan, each individually and on behalf of the

taxpayers of the State of Minnesota, Appellees.

No. 81-1569.

United States Court of Appeals, Eighth Circuit

April 30, 1982

Submitted Dec. 15, 1981.

Meier, Kennedy, Quinn & Shumaker and Timothy P. Quinn and Gordon W. Shumaker, St. Paul, Minn., for intervenors-appellees Dennis J. Berthiaume, et al.

Briggs & Morgan and John R. Kenefick, St. Paul, Minn., for intervenors-appellees Brenda B. Becker, et al.

Warren Spannaus, Atty. Gen., State of Minn., Douglas C. Blomgren, William P. Marshall, Sp. Asst. Attys. Gen., St. Paul, Minn., for appellee Clyde E. Allen, Jr.

William I. Kampf, St. Paul, Minn., for appellants.

Leo Pfeffer, New York City, for amicus curiae.

Before LAY, Chief Judge, and HENLEY and ARNOLD, Circuit Judges.

LAY, Chief Judge.

Minnesota Statute § 290.09, subdivision 22, authorizes a limited income tax deduction to Minnesota taxpayers for certain school-related expenses incurred on behalf of dependents. The plaintiffs-taxpayers in this action claim that the statute advances an establishment of religion and restrains free exercise of religion in violation of the first and fourteenth amendments of the United States Constitution. The district court granted the Commissioner's and intervening taxpayers' motions for summary judgment and held that the statute is "neutral on its face and in its application and does not have a primary effect of either advancing or inhibiting religion." Mueller v. Allen, 514 F.Supp. 998, 1003 (D.Minn.1981).

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1 This appeal followed. We affirm the judgment of the district court.


Section 290.09, subdivision 22, 2 authorizes a deduction to gross income for tuition, textbook, and transportation expenses incurred on behalf of dependents attending elementary or secondary schools. The deduction is limited to actual expenses incurred up to a $500 maximum per dependent in grades K to 6 and a $700 maximum per dependent in grades 7 to 12. Deductible expenses under subdivision 22 are restricted to those incurred in conjunction with schools which, inter alia, enable a Minnesota resident to fulfill state compulsory attendance laws. This restriction apparently encompasses public and nonpublic, secular and sectarian, educational institutions.

The district court found deductible tuition expenses to include:

1. Tuition in the ordinary sense.

2. Tuition to public school students who attend public schools outside their residence school districts.

3. Certain summer school tuition.

4. Tuition charged by a school for slow learner private tutoring services.

5. Tuition for instruction provided by an elementary or secondary school to students who are physically unable to attend classes at such school.

6. Tuition charged by a private tutor or by a school that is not an elementary or secondary school if the instruction is acceptable for credit in an elementary or secondary school.

7. Montessori School tuition for grades K through 12.

8. Tuition for driver education when it is part of the school curriculum.

514 F.Supp. at 1000. 3

The statute itself restricts deductible textbook expenses by excluding expenditures for books for courses not legally and commonly taught in public schools, books whose purpose is to teach or inculcate religious tenets, doctrines or worship, and books or materials for certain extracurricular activities. 4

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The district court found that subdivision 22 operates as a true tax "deduction," as opposed to a "credit." The taxpayer realizes a tax benefit only in the event that the resulting decrease in net taxable income places the taxpayer in a lower tax bracket. 514 F.Supp. at 1000.

Plaintiffs contend that statistical evidence allegedly demonstrates that an overwhelming majority of taxpayers who utilize the deduction authorized by Minn.Stat. § 290.09, subd. 22, have dependents attending parochial schools; thus, it is urged that the statute has the primary effect of supporting and advancing religion in violation of the Establishment Clause of the first amendment. Plaintiffs also argue that the statute does not have a valid secular purpose and that it fosters an impermissible entanglement between church and state.


The first amendment states in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S.Const., amend. I. 5 Despite the apparent absolute prohibition contained in the Establishment and Free Exercise Clauses, a strict policy of total separation of church and state has been neither advocated nor enforced in this nation. As Justice Powell observed, existing standards do not necessarily afford "bright line" guidance. Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 760-61, 93 S.Ct. 2955, 2959-2960, 37 L.Ed.2d 948 (1973).

Without repeating the history of the Establishment Clause, 6 we note that, although a law may be one respecting the establishment of religion while aiding all religions equally and without promoting a state religion, see Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947), a law that indirectly benefits religion or religious institutions is not invalid per se on those grounds. See, e.g., Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977) (law providing loan of textbooks purchased with state funds and provision of diagnostic services to nonpublic schools upheld); Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973) (law providing aid to church colleges through revenue bonds for construction upheld); Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) (law providing grants to church colleges for construction of buildings used for secular purposes upheld); Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (law providing real estate tax exemptions to churches upheld); Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) (law providing for loan of state textbooks to nonpublic schools upheld). See also Widmar v. Vincent, --- U.S. ----, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (Establishment Clause does not preclude

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use of state university facilities by registered student religious organization).

Much of the recurring case law in this area has evolved around the troublesome relationship between religion and education, see Nyquist, 413 U.S. at 772, 93 S.Ct. at 2965, and, while seemingly inconsistent, has developed into a three-part test. In order to pass constitutional muster, a statute which allegedly violates the Establishment Clause must, first, have a secular legislative purpose; second, have a principal or primary effect that neither advances nor inhibits religion; and third, not foster an excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).

Plaintiffs allege that Minn.Stat. § 290.09, subd. 22, does not satisfy the secular purpose requirement of Lemon v. Kurtzman. 7 The gist of plaintiffs' argument is that the preeminent purpose of the statute must necessarily be to aid religion because statistics show that the overwhelming effect of the statute is to aid taxpayers with dependents in sectarian schools. Cf. Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 193, 66 L.Ed.2d 199 (1980) (preeminent purpose of Kentucky statute requiring posting Ten Commandments in public school classrooms is religious notwithstanding avowed secular purpose). Defendants urge that plaintiffs are "boot strapping" their "secular purpose" attack with the "primary effects" prong of their argument, and that a statute may violate the Establishment Clause and still have a valid secular purpose. See Meek v. Pittenger, 421 U.S. 349, 363, 95 S.Ct. 1753, 1762, 44 L.Ed.2d 217 (1975); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 2965-2966, 37 L.Ed.2d 948 (1973). Defendants further urge that section 290.09, subd. 22, has the valid secular purpose of seeking to assist Minnesota taxpayers in providing dependents with a safe, effective and diverse educational environment. Cf. Wolman v. Walter, 433 U.S. 229, 236, 97 S.Ct. 2593, 2599, 53 L.Ed.2d 714 (1977) (purpose of Ohio statute authorizing funding for use of nonpublic school children for, inter alia, purchase of secular textbooks was to reflect state's "legitimate interest in protecting the health of its youth and in providing a fertile educational environment for all the schoolchildren of the State").

The district court found no indicia of an invalid nonsecular purpose of Minn.Stat. § 290.09, subd. 22. 514 F.Supp. at 1001. We concur. The manifest purpose of the challenged statute is to provide all taxpayers a benefit which will operate to enhance the quality of education in both public and private schools.

Plaintiffs focus their constitutional challenge on the "primary effect" of the tuition portion of the statute. 8 At trial they relied upon statistical calculations based upon data provided by the Minnesota Department of Education indicating that of the 90,954 pupils who attended nonpublic schools in 1979-80, 9 4.56% attended purportedly nonsectarian schools. During 1978-79, 3.71% of the 88,524 pupils in nonpublic schools attended nonsectarian schools.

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Plaintiffs urge here...

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