Attorney General v. School Committee of Essex

• Decision Date: 31 August 1982
• Citation: 439 N.E.2d 770,387 Mass. 326
• Parties: , 6 Ed. Law Rep. 382 ATTORNEY GENERAL v. SCHOOL COMMITTEE OF ESSEX.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 770

439 N.E.2d 770

387 Mass. 326, 6 Ed. Law Rep. 382

ATTORNEY GENERAL v. SCHOOL COMMITTEE OF ESSEX.

Supreme Judicial Court of Massachusetts,

Essex.

Argued May 3, 1982.

Decided Aug. 31, 1982.

John F. Tierney, Salem, for defendant.

Maria I. Lopez, Asst. Atty. Gen., for plaintiff.

Before HENNESSEY, C. J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

The Attorney General brought this action in the Superior Court for declaratory and injunctive relief to enforce the provisions of G.L. c. 76, § 1, which requires the school committee of the town of Essex to provide to residents of Essex attending private school in fulfillment of compulsory attendance requirements the same rights and privileges as to transportation as are provided by law for residents attending public school.

The defendant answered claiming that, inter alia, that portion of G.L. c. 76, § 1, mandating private school transportation, as then amended through St. 1950, c. 400, ¹ is unconstitutional pursuant to art. 46, § 2, as amended by art. 103, of the Amendments to the Massachusetts Constitution, known as the "anti-aid amendment." ²

The Attorney General moved for summary judgment. Mass.R.Civ.P. 56, 365 Mass. 824 (1974). After a hearing, a Superior Court judge rendered partial summary judgment for the Attorney General. The judge ruled that the school committee must provide transportation to private school students under the age of sixteen years to the extent that it was provided to public school students. The judge also ruled that the school committee lacked standing to challenge the constitutionality of G.L. c. 76, § 1.

Both parties appealed and the judge reported to the Appeals Court the question of the meaning of the term "to the same extent that [transportation] is provided to [public school] students" as applied in his decision, and as discussed in Quinn v. School Comm. of Plymouth, 332 Mass. 410, 412, 125 N.E.2d 410 (1955), and Murphy v. School Comm. of Brimfield, 378 Mass. 31, 35, 389 N.E.2d 399 (1979). We conclude that the providing of transportation to private school students at public expense does not violate our anti-aid amendment.

1. Facts. The town of Essex does not have a public high school and, pursuant to G.L. c. 71, § 4, has been exempted from having one. As a consequence, those students who wish to attend public high school are provided transportation to the high school in Gloucester. Students attending private high schools, also outside Essex, have requested transportation to and from those schools. The school committee has not provided such transportation.

2. Standing of the school committee to challenge the statute. In general, the constitutionality of a statute may be litigated only by persons whose interests are affected. Boston Licensing Bd. v. Alcoholic Beverages Control Comm'n, 367 Mass. 788, 794, 328 N.E.2d 848 (1975), and cases cited. This court has held that a school committee lacked standing to challenge G.L. c. 76, § 1, because no "personal or property rights of the committee [were] involved." Quinn v. School Comm. of Plymouth, 332 Mass. 410, 413, 125 N.E.2d 410 (1955). The court in Quinn cited Assessors of Haverhill v. New England Tel. & Tel. Co., 332 Mass. 357, 362, 124 N.E.2d 917 (1955), as the authority for its holding on the issue of standing. In Assessors of Haverhill, quoting from Horton v. Attorney Gen., 269 Mass. 503, 513, 169 N.E. 552 (1929), the court stated that it " 'is a general principle that no one can question in the courts the constitutionality of a statute already enacted except one whose rights are impaired thereby.' ... This rule extends to public officers whose private rights are not involved.... In general, an administrative officer cannot refuse to proceed in accordance with statutes because he believes them to be unconstitutional" (citations omitted). Assuming, without deciding, that the defendant lacks standing, cf. Trustees of Smith College v. Assessors of Whately, 385 Mass. 767, 771 & n.3, 434 N.E.2d 182 (1982), we shall consider the issues raised because the Attorney General, who is the officer with standing to raise these challenges, see G.L. c. 12, §§ 8, 8A-8M, is a party to this action. The constitutional issues are important. They have been fully argued and are likely to recur. Accordingly, we shall deal with these issues.

3. Constitutionality of the statutory scheme. The issue, then, is whether G.L. c. 76, § 1, requiring that school committees provide to students attending private schools in fulfillment of compulsory attendance requirements "the same rights and privileges as to transportation to and from school as are provided by law for pupils of public schools" is violative of art. 46, § 2, which states, in pertinent part, that no "grant, appropriation or use of public money or property or loan of credit shall be made or authorized by the Commonwealth or any political subdivision thereof for the purpose of founding, maintaining or aiding any ... primary or secondary school ... which is not publicly owned and under the exclusive control, order and supervision of public officers or public agents authorized by the Commonwealth or federal authority or both."

We have recently addressed similar constitutional challenges to statutes. See, e.g., Commonwealth v. School Comm. of Springfield, --- Mass. ---, Mass.Adv.Sh. (1981) 502, 417 N.E.2d 408, where we held that disbursement, pursuant to St. 1972, c. 766, of public funds to private schools for provision of special education programs for children with special needs did not violate art. 46, § 2. See also Colo v. Treasurer and Receiver Gen., 378 Mass. 550, 392 N.E.2d 1195 (1979) (expenditure of public funds to provide for chaplains for the legislature not violative of art. 46, § 2); Bloom v. School Comm. of Springfield, 376 Mass. 35, 379 N.E.2d 578 (1978) (lending textbooks by a school committee to private school students is unconstitutional as a use of public property in maintaining or aiding private schools in violation of art. 46, § 2). The history and intent of the anti-aid amendment has been well stated in these decisions and we need not repeat such a discussion here.

In the most recent decision in which we examined a challenge under art. 46, § 2, we set forth three factors to consider and balance: "(1) whether the purpose of the challenged statute is to aid private schools; (2) whether the statute does in fact substantially aid such schools; and (3) whether the statute avoids the political and economic abuses which prompted the passage of art. 46." Commonwealth v. School Comm. of Springfield, supra --- Mass. at ---, Mass.Adv.Sh. (1981) at 512, 417 N.E.2d 408.

We turn to an examination of the constitutionality of G.L. c. 76, § 1, in light of these factors, noting, first, the heavy burden a party must meet to overcome the presumption that a statute is constitutional. Id. Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212, 402 N.E.2d 501 (1980). All rational inferences are to be made in favor of the constitutionality of legislation. Commonwealth v. King, 374 Mass. 5, 15-16, 372 N.E.2d 196 (1977).

The criteria outlined above guide our analysis of the crucial question of whether the provision of transportation to students attending private schools is for the purpose of aiding those schools.

a. Purpose test. Statute 1950, c. 400, added the paragraph mandating transportation to private school pupils, and also stated that "in order to protect children from the hazards of traffic and promote their safety, cities and towns may appropriate money for conveying pupils to and from any schools." On its face, then, this statute is intended to benefit children, and not schools. We have recognized, however, that in determining the validity of a statute under art. 46, § 2, we must look beyond the statutory language in order to discern whether the Legislature was attempting to circumvent the Constitution by the use of facially valid language. Commonwealth v. School Comm. of Springfield, supra, --- Mass. at ---, Mass.Adv.Sh. (1981) at 514, 417 N.E.2d 408. Bloom v. School Comm. of Springfield, supra, 376 Mass. at 47, 379 N.E.2d 578.

We have said, however, that "the purpose of school transportation [is to promote] the health and safety of school children." Murphy v. School Comm. of Brimfield, 378 Mass. 31, 41, 389 N.E.2d 399 (1979). We accept that statement as a general principle, but that does not necessarily mean that the right to be transported at public expense was extended to private school children for only that reason.

We have previously determined that the statute authorizing the expenditure of public funds to pay for the education of certain special needs children in private schools was not enacted for "an illegitimate State purpose to aid private schools." Commonwealth v. School Comm. of Springfield, supra --- Mass. at ---, Mass.Adv.Sh. (1981) at 514, 417 N.E.2d 408. Several factors which we found persuasive in that case must be examined here.

We looked at the avowed purpose of the statute which was found to be, as in the instant case, consistent with our Constitution. We found that "private placements [pursuant to St.1972, c. 766] are authorized only when the appropriate special education program ... is not available within the public school system. Even more significantly, the statute does not permit the reimbursement of money which is spent for a child who unilaterally enrolls in a private school." Id. at ---, Mass.Adv.Sh. (1981) at 514, 417 N.E.2d 408. To a limited degree, this point distinguishes the instant case. Under c. 766, the Commonwealth provides education for those who choose to be educated in public schools but who cannot be because facilities are not available. Children who attend private schools generally choose to do so at the cost of forgoing public education. We emphasized in Commonwealth v. School Comm. of Springfield, supra at ---, Mass.Adv.Sh. (1981) ...