AMERICANS UNITED FOR SEP. OF CHURCH & STATE v. Paire

• Decision Date: 13 September 1972
• Docket Number: Civ. A. No. 72-3.
• Citation: 348 F. Supp. 506
• Parties: AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE et al. v. Newell J. PAIRE, as Commissioner of Education of the State of New Hampshire et al.
• Court: U.S. District Court — District of New Hampshire

348 F. Supp. 506

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE et al. v. Newell J. PAIRE, as Commissioner of Education of the State of New Hampshire et al.

Civ. A. No. 72-3.

United States District Court, D. New Hampshire.

September 13, 1972.

Walter C. Wright, Jr., Woodbury, N. J., Kenneth E. Scott, Wilton, N. H., for plaintiffs.

Robert E. Hinchey, Burns, Bryant, Hinchey, Cox & Shea, Dover, N. H., for Roman Catholic Bishop of Manchester.

Howard B. Myers, Concord, N. H., for Attorney General of State of New Hampshire.

OPINION

BOWNES, District Judge.

The plaintiffs in this action challenge on First Amendment grounds the constitutionality of a facilities lease and dual enrollment agreement between the Nashua School District and the Holy Infant Jesus School of the Roman Catholic Bishop of Manchester whereby the School District leases classroom space in the building of the Holy Infant Jesus School and uses the leased space for the teaching of only secular courses solely to the students of the Holy Infant Jesus School.

Jurisdiction is based on 28 U.S.C. § 1331, with the matter in controversy exceeding $10,000, exclusive of interest and costs.

New Hampshire has a dual enrollment statute which became effective July 1, 1969:

School Attendance

Dual Enrollment. Notwithstanding any other provision of the law, the full-time attendance requirement may be met by attendance at more than one school provided the total time spent in the schools is equivalent to full-time attendance and further that the attendance at more than one school may include attendance at a nonpublic school provided that the school district and the state board of education have given prior approval to the detailed dual enrollment agreement, which is to be effectuated for this purpose. NH RSA 193:1-a.

The financing of a dual enrollment program is provided by NH RSA 198:21:

Dual Enrollment Grants

I. Any school district which has in operation an approved dual enrollment agreement under the provisions of RSA 193:1-a shall be granted for the first school year that such agreement is in operation the full operational costs of implementing such agreement, exclusive of any part of the cost and carrying charges of any capital improvements; and for the next succeeding school year, if such operation is then continued, one half of such costs.

* * * * * *

The plaintiffs do not challenge the constitutionality of either of the above statutes, but have concentrated their attack on the lease and dual enrollment agreement.¹

THE FACTS

The essential facts have been stipulated by the parties. The dual enrollment agreement and lease are admitted to be in full force and effect and are typical of agreements and leases entered into between other church schools and other school districts in the State of New Hampshire.² The leased facilities consist of five contiguous classrooms and an office all located on one corridor in one end of the second floor of the Holy Infant Jesus School building. The facilities are leased at a reasonable rate of $2.50 per square foot and contain no crucifixes, religious symbols or artifacts either in the classrooms or in the corridor connecting the leased classrooms. The name assigned to these facilities is the Arlington Street Annex School, all of whose students are also students of the Holy Infant Jesus School.

The Holy Infant Jesus School is a Roman Catholic parochial school controlled by a religious organization for the purpose of propagating and promoting the Roman Catholic faith. It contains identifying religious symbols both on the exterior and interior of the building. The teaching staff of the Holy Infant Jesus School consists of nine nuns of various religious orders, who wear a distinctive religious uniform.

The curriculum of the Arlington Street Annex School is composed of entirely secular subjects consisting of Language Arts, Science, Math, Music, and Physical Education which are taught exclusively by teachers employed by the Nashua School District. These teachers are certified by the State Board of Education, are subject to the supervision and direction of the Superintendent of the Nashua Public Schools, and are subject to the same rules and regulations as all other teachers in the Nashua public school system. One of these teachers serves as principal of the Arlington Street Annex School.

The students in the Holy Infant Jesus School are all between the ages of five and fourteen, and the students in the Arlington Street Annex School are in grades four through eight. The students spend one-half day in the Holy Infant Jesus School. The Arlington Street Annex School operates on the same calendar basis as all other public schools in Nashua and has the same holidays and vacation schedule. The Holy Infant Jesus School and the Arlington Street Annex School each maintain separate attendance records. All of the textbooks and other educational equipment and aids except notebooks used in the Arlington Street Annex School are furnished by the Nashua School District and are the same as those used in other public schools. Students may purchase notebooks independently from other sources. The students who receive instruction in the Arlington Street Annex School receive a separate report card from the Nashua School District evaluating their work.

The Nashua School District makes lease payments to the Holy Infant Jesus School. These payments cover leased space and custodial care. The School District makes no other payments of any kind and receives no other services from the Holy Infant Jesus School. The funds required to pay the rent under the lease between the Holy Infant Jesus School and the Nashua School District and in other dual enrollment programs throughout the state exceed $10,000 and are ultimately obtained by the taxing power of the State of New Hampshire or a subdivision thereof and are transmitted to the lessor by an agency of the state government.

The New Hampshire State Department of Education published "Guidelines for Applying for Dual Enrollment and Child Benefit Services Grants" as provided by the New Hampshire Revised Statutes Annotated, Chapter 193, Section 1-a, which are part of the record in this case.

THE LAW

It has long since been apparent that, despite the eloquence and intent of Thomas Jefferson, the First Amendment did not create a solid wall between church and state. Judicial interpretations given to the words, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof", have permitted openings and breaches in the wall separating church and state as long as they do not undermine the basic foundation and structure. The latest judicially developed test for determining whether a statute or state program can breach the First Amendment wall between church and state is tripartite. 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, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L. Ed.2d 1060 (1968); finally, the statute must not foster "an excessive government entanglement with religion. Walz v. Tax Commission of City of New York, 397 U.S. 664, at 674, 90 S.Ct. at 1414 1409, 25 L.Ed.2d 697 (1970). 403 U.S. at pages 612-613, 91 S.Ct. at page 2111.

The dual enrollment statute, the guidelines promulgated pursuant to it, and the lease and enrollment agreement have a secular legislative purpose. They are the direct result of the current financial crisis in Roman Catholic grammar and high school education which is not peculiar to New Hampshire, but which is manifest in every state with a sizeable Roman Catholic population.³

Because of rising costs, due particularly to the decline in teaching nuns and the consequent increase in lay teachers, Roman Catholic parishes in New Hampshire, as elsewhere, are finding it increasingly difficult to support their parochial schools.⁴ In New Hampshire, as in all other states with a sizeable Roman Catholic population, the curtailment and closing of parochial schools means a sharply increased burden not only on the taxpayers but on existing public school facilities which in many instances are already inadequate. This attempt to breach the First Amendment wall between church and state is not being made to propagate or proselytize a religious faith but rather represents a frantic effort to postpone and lessen the impact of the breakdown of what has hitherto been a dual educational system.⁵ The existence of parochial grammar and secondary schools in New Hampshire, as elsewhere, has been so common and widespread that, until recently, local school boards have based their planning for future public school educational needs on the accepted fact that a certain percentage of children in the community would not be attending public schools. The lease and dual enrollment agreement, therefore, pass the first requirement of having a secular legislative purpose.

The second criterion that the principal effect of the program must be one that neither advances nor inhibits religion is a different matter. Under the lease and contract agreement public school teachers are furnished to the Holy Infant Jesus School for the teaching of secular subjects in classrooms leased from that school. Despite the careful wording of the guidelines and the lease, the only accurate characterization of this practice is that it amounts to a direct subsidy. Semantics cannot change the facts. The State of New Hampshire pays the salaries of the teachers who teach only parochial school pupils. In addition, the state pays the Holy Infant Jesus School the sum of $8,937 for the classroom space which the public school teachers use during the school year. To be precise, this amounts to a double subsidy. Such a public subsidy is constitutionally...