Americans United v. Rogers, 59410

• Court: United States State Supreme Court of Missouri
• Writing for the Court: MORGAN; BARDGETT; SEILER; BARDGETT; The foregoing is set forth because of the dissenting opinion of SEILER, C.J., although it is quite clear under the majority opinion of MORGAN; SEILER; HENLEY; DONNELLY
• Citation: 538 S.W.2d 711
• Parties: AMERICANS UNITED, a corporation, et al., Respondents, v. H. Lang ROGERS et al., Appellants, and Independent Colleges and Universities of Missouri, Intervenor-Appellant.
• Docket Number: No. 59410,59410
• Decision Date: 26 July 1976

Page 711

538 S.W.2d 711 AMERICANS UNITED, a corporation, et al., Respondents,
v.
H. Lang ROGERS et al., Appellants,
and
Independent Colleges and Universities of Missouri,
Intervenor-Appellant. No. 59410. Supreme Court of Missouri, En Banc. July 26, 1976.
Rehearing Denied Aug. 6, 1976.

Page 713

John C. Danforth, Atty. Gen., by Daniel P. Card, II, Asst. Atty. Gen., Jefferson City, R. H. McRoberts, Sr. and Thomas C. Walsh, Bryan, Cave, McPheeters & McRoberts, St. Louis, for appellants.

Frank Susman, Susman, Schermer, Willer & Rimmel, St. Louis, for respondents.

Flavius B. Freeman, Neale, Newman, Bradshaw & Freeman, Springfield, Wayne L. Millsap, Millsap, Weil, Eyerman & Schenberg, Clayton, for amici curiae.

MORGAN, Judge.

On January 26, 1976, the trial court entered a judgment declaring that: 'The statutory scheme contained in Missouri Revised Statutes, Sections 173.200 to 173.235, popularly known as 'The Financial Assistance Program' and providing for tuition grants to college students at certain approved public and private colleges, is hereby declared to be unconstitutional and void under the guarantees and rights provided within the First Amendment of the United States Constitution and provided within Article I, Sections 6 and 7, Article III, Section 38(a), Article IX, Section 8, and Article X, Section 3, all of the Missouri Constitution (1945).' The state Coordinating Board for Higher Education and certain Independent Colleges and Universities, defendants, have appealed. Jurisdiction of the cause is vested in this court by virtue of Article V, § 3, of the constitution of this state. We reverse.

The challenged statutory scheme was enacted by the General Assembly in 1972. During the 1975--76 school year, approximately 10,000 college students received financial assistance while enrolled in 57 different institutions in Missouri--26 public and 31 private--approved by the Coordinating Board for Higher Education. The latter in § 173.210 is designated as the administrative agency for implementation of the program and is empowered to promulgate reasonable rules and regulations to effectuate the same. The Board has the sole authority to '. . . select qualified recipients to receive financial assistance, make such awards of financial assistance to qualified recipients and determine the manner and method of payment to the recipient.'

§ 173.200 is entitled 'Purpose of sections 173.200 to 173.235' and reads: 'The general assembly, giving due consideration to the historical and continuing interest of the people of the state of Missouri in encouraging deserving and qualified youths to realize their aspirations for higher education, finds and declares that higher education for residents of this state who desire such an education and are properly qualified therefor, is important to the welfare and security of this state and the nation, and consequently is an important public purpose. The general assembly finds and declares that the state can achieve its full economic and social potential only if every individual

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has the opportunity to contribute to the full extent of his capabilities and only when financial barriers to his economic, social and educational goals are removed. It is therefore, the policy of the general assembly and the purpose of sections 173.200 to 173.235 to establish a financial assistance program to enable qualified full-time students to receive nonreligious educational services in a public or private institution of higher education of their choice.'

§ 173.205 contains definitions of academic year, approved private institution, approved public institution, coordinating board, financial assistance, financial need and fulltime student. Two, therein, are of immediate and special interest:

'(2) 'Approved private institution', a nonprofit institution, dedicated to education purposes, located in Missouri which: (a) Is operated privately under the control of an independent board and not directly controlled or administered by any public agency or political subdivision; (b) Provides at least a collegiate level course of instruction for a minimum of two years, leading or directly creditable toward an associate or baccalaureate degree; (c) Meets the standards for accreditation as determined by the North Central Association of Colleges and Secondary Schools; (d) Does not discriminate in the hiring of administrators, faculty and staff or in the admission of students on the basis of race, color, religion, sex, or national origin and is in compliance with the Federal Civil Rights Acts of 1964 and 1968 (42 U.S.C.A. §§ 2000a et seq., 3601 et seq.) and executive orders issued pursuant thereto; (e) Permits faculty members to select textbooks without influence or pressure by any source; * * * (6) 'Financial need', the difference between the financial resources available to an applicant as determined by the coordinating board, and the applicant's anticipated expenses, including tuition, mandatory fees, and board and room while attending an approved private or public institution of higher education. In determining need the coordinating board shall employ a formula similar to nationally recognized comprehensive mechanisms for determining need, such as those of the American College Testing Program or the College Scholarship Service; . . .'

§ 173.215 lists the basic qualifications of an applicant and, in part, provides: '1. An applicant shall be eligible for initial or renewed financial assistance only if, at the time of his application and throughout the period during which he receiving such assistance, he (1) Is a citizen of the United States; (2) Is a resident of the state of Missouri, as determined by reference to standards promulgated pursuant to section period during which he is receiving such or has been accepted for enrollment as a fulltime undergraduate student in an approved private or public institution; (4) Establishes that he has financial need; (5) Has never been convicted in any court of an offense which involved the use of force, disruption or seizure of property under the control of any institution of higher education to prevent officials or students in such institutions from engaging in their duties or pursuing their studies; and (6) No award shall be made under sections 173.200 to 173.235 to any applicant who is enrolled, or who intends to use the award to enroll, in a course of study leading to a degree in theology or divinity.'

§ 173.220 limits the amount of any grant or award to the least of (1) applicant's financial need, (2) one-half the tuition and mandatory fee charged at the institution attended or (3) the sum of Nine Hundred Dollars.

§ 173.230, in part, provides that 'A recipient of financial assistance may transfer from one approved public or private institution to another without losing his eligibility for assistance . . .'

By stipulation, the parties have agreed as to the manner in which awards are distributed, to-wit: 'Payment of the award is made by individual check in the amount of the award payable solely to the student. The Department (Board) sends the checks for all of the students attending each institution to the financial aid officer at the particular institution for distribution to the students, which, generally speaking, occurs

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as follows: Each student is notified that his check is available at the cashier's window and present the necessary identification to claim the check. The student is expected by the institution to take care of any and all educational expenses such as tuition, fees, and room and board (where applicable) that might be owed to the institution at the time he receives the check. If the amount of the student's indebtedness to the institution equals or exceeds the amount of the check, the student normally endorses the check over to the institution and receives a receipt for having made such payment. If the amount of the check exceeds the student's indebtedness, the student normally endorses the check over to the institution and receives back cash or the institution's check for the difference between his indebtedness and the amount of the check. If all of the charges of the institution for tuition, fees, and room and board (where applicable) have been paid from other sources, the check is turned over to the student to be used by him as he may see fit. The payment of a student's obligations to the institution is a matter to be worked out between the student and the institution.'

It seems agreed that forty of the fifty-seven institutions recipients now attend have no church affiliation whatever.

The judgment entered by the trial court reflects that it was predicated upon the following constitutional provisions.

United States Constitution, First Amendment (in part): Congress shall make no law respecting an establishment of religion . . .

Missouri Constitution:

Article I, § 6--That no person can be compelled to erect, support or attend any place or system of worship, or to maintain or support any priest, minister, preacher or teacher of any sect, church, creed or denomination of religion; but if any person shall voluntarily make a contract for any such object, he shall be held to the performance of the same.

Article I, § 7--That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.

Article III, § 38(a)--The general assembly shall have no power to grant public money or property, or lend or authorize the lending of public credit, to any private person, association or corporation, excepting aid in public calamity, and general laws providing for pensions for the blind, for old age assistance, for aid to dependent or crippled...