Bloom v. School Committee of Springfield

• Decision Date: 20 July 1978
• Citation: 376 Mass. 35,379 N.E.2d 578
• Parties: Elonora F. BLOOM et al. 1 v. SCHOOL COMMITTEE OF SPRINGFIELD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 578

379 N.E.2d 578

376 Mass. 35

Elonora F. BLOOM et al. ¹ v. SCHOOL COMMITTEE OF SPRINGFIELD et al.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Feb. 15, 1978.

Decided July 20, 1978.

Martin B. Margulies, Springfield (Laura Fieber, Springfield, with him), for plaintiffs.

James S. Kaufman, Associate City Sol., Springfield, for School Committee of Springfield.

Mitchell J. Sikora, Jr., Asst. Atty. Gen., for the Attorney General.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

KAPLAN, Justice.

The court is presented with the question whether a statute requiring school committees to loan textbooks to pupils attending private schools (sectarian and nonsectarian) offends against the provision of the Constitution of the Commonwealth which forbids the use of public money or property "for the purpose of founding, maintaining or aiding" such schools.

1. Statement. Thirteen taxable inhabitants of Springfield (see G.L. c. 40, § 53) sued the local school committee in Hampden Superior Court seeking a declaration and eventual injunctive relief that would prevent the committee from expending money for textbooks under the second paragraph of G.L. c. 71, § 48, which they claimed to be unconstitutional. The Attorney General was allowed to intervene in the action, ² and the defendant and intervenor moved to dismiss the complaint for failure to state a claim. ³ The motions were granted without opinion, and from the ensuing judgment the plaintiffs appealed. We granted direct appellate review.

2. The complaint. The complaint (as somewhat amplified by an agreed statement) ⁴ ran thus. By St.1973, c. 1196 (with amendment by St.1975, c. 652) the following was added to G.L. c. 71, § 48, which in its first paragraph contains a general authorization of school committees to purchase textbooks and other school supplies: "The committee, at the individual request of a pupil in a private school which has been approved under section one of chapter seventy-six, ⁵ and which does not discriminate in its entrance requirements on the basis of race or color, ⁶ shall lend free of charge to him text books which shall be the same as those purchased by the committee for use in the public schools. Such text books shall be loaned free to such pupils subject to such regulations as the committee may prescribe."

The defendant school committee made preparations to carry out the quoted provision, specifying a line item expenditure of $200,000 in its 1976-1977 budget for the purchase of textbooks for use by children attending private elementary and secondary schools in Springfield. (This was approximately 32% Of the total authorized budget for textbooks and library books.) The committee also adopted a "Procedure for Ordering Textbooks for Pupils Attending Private Schools." Pupils could sign up for the books by subject and grade at their respective schools, and school officials would forward the lists to the Springfield school department. Vendors were to deliver the books direct to the schools where they would be stamped with the Springfield public school stamp, and issued to the pupils. In the spring the books would be inventoried at the schools, and those books requested by pupils for the following year were to be collected and stored at the schools, the others returned to the school department by mutual arrangement.

In view of potential litigation, the school committee on advice of counsel did not expend the $200,000 for the stated purpose but transferred the sum to other accounts; ⁷ nor was any amount budgeted for the book loans for 1977-1978.

The plaintiffs alleged, and now argue, two constitutional points. First, they say the statutory provision is invalid on its face under the terms of our "anti-aid" amendment art. 46 of the Amendments to the Constitution of the Commonwealth. Second, conceding that the Supreme Court has held textbook loan provisions similar to that in question here to be not invalid on their face under the "no-establishment" clause of the First Amendment, the plaintiffs say that the Court has left open the possibility under that clause that a particular program could be held unconstitutional on a showing that the books might be put to sectarian uses; ⁸ and the plaintiffs offer to make such a showing if the action is permitted to go to trial.

We agree with the plaintiffs' first contention and need not pass on the second.

3. The anti-aid amendment. Under the rather uncertain language of art. 18 of the Amendments as adopted in 1855, ⁹ public aid had been granted in several instances to private schools, and a major subject of the constitutional convention of 1917 was proposals for a more specific amendment that would prohibit the practice altogether. See 1 Debates in the Massachusetts Constitutional Convention, 1917-1918, at 1-230 (particularly at 63, 174-176, 194) (1919); R. L. Bridgman, The Massachusetts Constitutional Convention of 1917, 22-40 (1923); Opinion of the Justices, 214 Mass. 599, 102 N.E. 464 (1913). Proponents of such an amendment urged that liberty of conscience was infringed whenever a citizen was taxed to support the religious institutions of others; that the churches would benefit in independence and dignity by not relying on governmental support; and, more generally or colloquially, that to promote civic harmony the irritating question of religion should be removed from politics as far as possible, and with it the unseemly and potentially dangerous scramble of religious institutions for public funds in ever-increasing amounts. 1 Debates, Supra at 68, 74-79, 161-164.

The amendment that emerged from the convention and was voted by the people, going into effect on October, 1918, was sweeping in its terms: it prohibited any use of public money or property for the aid of any private school, whether or not parochial, and whether elementary, secondary, or on college or university level. The text of the five sections of the amendment as adopted in 1917 is set out in the margin. ¹⁰ In 1974 the core prohibitory language of § 2 was recast without (as we think) any change of meaning here material, but an exception was engrafted: the Commonwealth may now make grants-in-aid to private institutions of higher education or their students. ¹¹ We reproduce in the margin the whole of the present § 2, ¹² inserted by art. 103 of the Amendments to the Constitution, and set out here the part, important for our present purpose, which carries forward the basic prohibition of 1917: "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 infirmary, hospital, institution, primary or secondary school, or charitable or religious undertaking 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 think it must be accepted that it would be a transgression of the Constitution for a city or town to loan textbooks to private primary or secondary schools. A program of that order would be a use of public property for the purpose of aiding such schools in carrying out their essential function.

It is suggested, however, that the program envisaged by the statute is saved because possession of the books is (at least nominally) in the pupils rather than in the schools they attend. We believe the difference is without significance under the terms of our anti-aid amendment. For the stricture of our amendment is not limited to direct transfer of money or property from the government to the treasuries or possession of the schools. Rather it speaks of the "use" of public money or property for "maintaining or aiding" the schools. The textbook loan scheme of the challenged statute makes a "use" of public property, and the effect is to "aid" the schools, and in their very teaching function. To fall within the natural meaning of the constitutional prohibition the scheme need not necessarily replicate the features of a direct transfer; but as a matter of fact it does so substantially. Suppose the books had been turned over to the schools directly. ¹³ In that case the schools would distribute the books to their pupils. Portions of the books would be assigned for reading or for exercises within them, all as part of the class regimen. Teachers would develop the meaning of the books by classroom methods or exercises. The material would form the basis of examinations. But this is just the homely pattern of conduct that would be followed with the books provided under the statute. ¹⁴

The immateriality or unreality of the distinction proffered in defense of the statute is borne out by opinions of the Justices in the context of the anti-aid amendment itself. Legislation proposed in 1970 would have authorized the Commonwealth to reimburse private schools for part of the cost of their secular instruction in effect, a partial subsidy. Because "(t)he language (of the amendment) unquestionably was designed to preclude entirely aid to all nonpublic institutions from appropriated public funds with minor exceptions not here relevant," the Justices found the plan impermissible and so informed the Senate. Opinion of the Justices, 357 Mass. 836, 844, 258 N.E.2d 779, 784 (1970). ¹⁵ Shortly afterwards the House of Representatives sought advice about a plan to issue to the parents of private school pupils vouchers to be drawn on the Treasurer of the Commonwealth and to be used toward tuition payments. The Justices said: "The present bill seems to us to involve an indirect form of aid to nonpublic schools which, if enacted, would have in substance the same practical effect as the measure which we recently considered. We are of opinion that the present bill would violate § 2 of art. 46." Opinion of the Justices, 357...