New York State School Boards Ass'n v. Sobol

• Decision Date: 31 March 1992
• Citation: 79 N.Y.2d 333,591 N.E.2d 1146,582 N.Y.S.2d 960
• Parties: , 591 N.E.2d 1146, 60 USLW 2646, 74 Ed. Law Rep. 278 NEW YORK STATE SCHOOL BOARDS ASSOCIATION, Appellant, v. Thomas SOBOL, as New York State Commissioner of Education, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 960

582 N.Y.S.2d 960

79 N.Y.2d 333, 591 N.E.2d 1146, 60

USLW 2646, 74 Ed. Law Rep. 278

NEW YORK STATE SCHOOL BOARDS ASSOCIATION, Appellant, v. Thomas SOBOL, as New York State Commissioner of Education et al., Respondents.

Court of Appeals of New York.

March 31, 1992.

[79 N.Y.2d 334] [591 N.E.2d 1147] Jay Worona and Pilar Sokol, for appellant.

Stanley Geller, for Committee for Public Educ. and Religious Liberty, amicus curiae.

[79 N.Y.2d 335] Deborah Goldberg, Donna Lieberman, Arthur N. Eisenberg, Laurie R. Rockett, William B. Rubenstein, of the Pennsylvania and District of Columbia Bars, admitted pro hac vice, Ruth E. Harlow and Janet Benshoof, for New York Civil Liberties Union et al., amici curiae.

OPINION OF THE COURT

BELLACOSA, Judge.

Plaintiff New York State School Boards Association (Association) appeals as of right on Establishment Clause constitutional grounds (U.S. Const. 1st Amend.). The Appellate Division order, 168 A.D.2d 188, 570 N.Y.S.2d 716, upheld the State Education Department regulations which mandate the inclusion of "representatives from religious organizations" on advisory councils in public school development of education and instruction programs to combat the epidemic of Acquired Immune Deficiency Syndrome (AIDS). The key sentence and challenged clause of the regulations directs: "The advisory council shall consist of parents, school board members, appropriate school personnel, and community representatives, including representatives from religious organizations " (8 NYCRR 135.3[b][2]; [c][2] [emphasis added]. We agree with the two courts below that the regulations, as facially challenged, meet the guidelines established by the United States Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 and do not violate the Establishment Clause. We therefore affirm.

In 1977, the Legislature authorized respondent, State Commissioner of Education (Commissioner), to "prescribe in regulations such health education courses * * * as * * * may [be] deem[ed] necessary and desirable for the welfare of pupils and the community" (Education Law § 804[4]. In 1987, the Commissioner promulgated regulations (eff. Jan. 6, 1988) requiring all elementary and secondary schools to provide AIDS instruction to schoolchildren (8 NYCRR 135.3[b][2]; [c][2]. The instruction is to be "age appropriate and consistent with community values" (id.). The regulations express mandated goals: to "provide accurate information to pupils concerning the nature of the disease, methods of transmission, and methods of prevention" (id.). The instruction must "stress abstinence as the most appropriate and effective premarital protection against AIDS" (id.). Students, with parental permission, may "opt out" of the school instruction, provided assurance is given that they will receive instruction at home. The local boards of education or trustees are responsible for formulating the content of the instruction and approving and evaluating its implementation. In public schools, the boards and trustees are required to establish advisory councils to make recommendations regarding the content, implementation and evaluation of the instruction. The mandated composition of the advisory councils reflects a desire for broad and early community input, coupled with the objective of avoiding student "opt outs" from the ultimately adopted education program, thus reaching the greatest number of pupils with accurate, effective information.

The Association sues for declaratory judgment that the regulations violate the Establishment Clause of the First Amendment of the United States Constitution (U.S. Const. 1st Amend.). It urges facial unconstitutionality of the regulations, and does not advance, develop or urge an "as applied" unconstitutionality argument. The record is barren of any evidence describing the manner in which the regulations are being implemented in the myriad of school districts throughout the State.

Supreme Court, Albany County, applying the still-governing tripartite test of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, supra; see, Matter of Klein [Hartnett], 78 N.Y.2d 662, 666, 578 N.Y.S.2d 498, 585 N.E.2d 809, granted the Commissioner's cross motion for summary judgment. The Appellate Division technically modified, agreeing substantively with Supreme Court that the regulations passed facial constitutional muster (168 A.D.2d 188, 570 N.Y.S.2d 716). Those courts concluded that the regulations properly reflect that "representatives from religious organizations" have some role to contribute in addressing the AIDS epidemic, and that the challenged portion of the regulations has only an incidental and remote, not primary, effect on the advancement of religion. Those courts emphasized the advisory nature of the councils in rejecting the Association's argument that the regulations created a symbolic link between religion and State, and rebuffed the Association's excessive entanglement theory as speculative.

The Establishment Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion" (U.S. Const. 1st Amend.). These first words of the Bill of Rights, ratified just over 200 years ago, have deep roots in this Nation's history of religious freedom, diversity and tolerance. The evolution of the Establishment Clause has been traced fully in several United States Supreme Court decisions (see, Engel v. Vitale, 370 U.S. 421, 425-430, 82 S.Ct. 1261, 1264-266, 8 L.Ed.2d 601; Everson v. Board of Educ., 330 U.S. 1, 8-14, 67 S.Ct. 504, 507-510, 91 L.Ed. 711; see also, Edwards v. Aguillard, 482 U.S. 578, 605, 107 S.Ct. 2573, 2589, 96 L.Ed.2d 510 [Powell, J., concurring]; Wallace v. Jaffree, 472 U.S. 38, 93-106, 105 S.Ct. 2479, 2508-2515, 86 L.Ed.2d 29 [Rehnquist, J., dissenting]. Everson v. Board of Educ. (supra) summarizes the "essential precepts" of the Establishment Clause, which applies to the States under the Fourteenth Amendment, as follows:

"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence * * * person[s] to go to or remain away from church against [their] will or force [them] to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. " (330 U.S. 1, 15-16, 67 S.Ct. 504, 511-512, 91 L.Ed. 711, supra.)

The Establishment Clause, then, has emerged as "more than a pledge that no single religion will be designated as a state religion * * * [or] a mere injunction that governmental programs discriminating among religions are unconstitutional. * * * [I]nstead, [it] primarily proscribes 'sponsorship, financial support, and active involvement of the sovereign in religious activity.' " (Grand Rapids School Dist. v. Ball, 473 U.S. 373, 381, 105 S.Ct. 3216, 3221, 87 L.Ed.2d 267.)

In recent years, the United States Supreme Court has recognized that total separation between government and any governmental acknowledgment of the role of religion in citizens' lives is not possible or desirable, and would in fact exhibit hostility rather than a constitutionally correct neutrality towards religion (see, Lynch v. Donnelly, 465 U.S. 668, 672-673, 104 S.Ct. 1355, 1358-1359, 79 L.Ed.2d 604; Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745, supra; see also, Allegheny County v. Greater Pittsburgh Am. Civ. Liberties Union, 492 U.S. 573, 623, 109 S.Ct. 3086, 3117, 106 L.Ed.2d 472 [O'Connor, J., concurring]; Aguilar v. Felton, 473 U.S. 402, 420, 105 S.Ct. 3232, 3242, 87 L.Ed.2d 290 [Burger, Ch. J., dissenting]. Thus, in general, and especially on a facial challenge, so long as the government "maintain[s] a course of neutrality among religions, and between religion and nonreligion" (Grand Rapids School Dist. v. Ball, 473 U.S. 373, 382, 105 S.Ct. 3216, 3221, 87 L.Ed.2d 267, supra ), its actions will withstand Establishment Clause scrutiny.

Drawing on these general principles and the "cumulative criteria developed by the Court over many years," the United States Supreme Court in Lemon v. Kurtzman, (403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745, supra ) prescribed its tripartite "test" for evaluating the constitutionality of governmental actions under the Establishment Clause: first, the action must have a secular purpose; second, it must not have a principal or primary effect that advances or inhibits religion; third, it must not foster excessive governmental entanglement with religon (id., at 612-613, 91 S.Ct. at 2111). Although characterized as a "test", the United States Supreme Court has cautioned that the Lemon criteria " 'must not be viewed as setting the precise limits to the necessary constitutional inquiry, but serve only as guidelines' " or " 'helpful signpost[s].' " (Grand Rapids School Dist. v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d 267, supra, quoting Meek v. Pittenger, 421 U.S. 349, 359, 95 S.Ct. 1753, 1760, 44 L.Ed.2d 217; Lynch v. Donnelly, 465 U.S. 668, 679, 104 S.Ct. 1355, 1362, 79 L.Ed.2d 604, supra; Mueller v. Allen, 463 U.S. 388, 394, 103 S.Ct. 3062, 3066, 77 L.Ed.2d 721, quoting Hunt v. McNair, 413 U.S. 734, 741, 93 S.Ct. 2868, 2873, 37 L.Ed.2d 923). Indeed, individual Justices of the United States Supreme Court have expressed varying viewpoints on the continued utility and vitality of the Lemon...