Board of Ed. of Cent. School Dist. No. 1, Towns of East Greenbush Rensselaer County v. Allen

• Decision Date: 01 June 1967
• Citation: 281 N.Y.S.2d 799,20 N.Y.2d 109,228 N.E.2d 791
• Court: New York Court of Appeals Court of Appeals
• Parties: , 228 N.E.2d 791 BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1, TOWNS OF EAST GREENBUSH ET AL., RENSSELAER COUNTY, and Chatham, Columbia County, et al., Appellants, v. James E. ALLEN, Jr., as Commissioner of Education of the State of New York, Respondent, and Michael Rock et al., Intervenors-Respondents.

Page 799

281 N.Y.S.2d 799

20 N.Y.2d 109, 228 N.E.2d 791

BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1, TOWNS

OF EAST GREENBUSH ET AL., RENSSELAER COUNTY, and Chatham, Columbia County, et al., Appellants, v. James E. ALLEN, Jr., as Commissioner of Education of the

State of New York, Respondent, and Michael Rock et

al., Intervenors-Respondents.

Court of Appeals of New York.

June 1, 1967.

Marvin E. Pollock, New York City, for appellants.

Louis J. Lefkowitz, Atty. Gen. (Jean M. Coon and Ruth Kessler Toch, Albany, of counsel), for respondent.

Porter R. Chandler, New York City, James J. MacKrell, Latham, Richard E. Nolan, and Jerome M. Congress, New York City, for intervenors-respondents.

Michael M. D'Auria, New York City, Thomas J. Ford, Brooklyn, and Edward J. Walsh, Jr., Rockville Centre, for Catholic Lawyers Guild of the Diocese of Rockville Centre, amicus curiae.

David Orlin, New York City, for Executive Boards of the Parent-Teachers' Associations of Public Schools 6 and 198 and others, amici curiae.

Whitman Knapp and Thomas V. Urmy, Jr., New York City, for Public Education Association, amicus curiae.

Theodore D. Hoffman, Mineola, and Stephen J. Masse, Jamaica, for Atlantic District of the Lutheran Church-Missouri Synod and others, amici curiae.

Lester I. Goodman, New York City, for National Jewish Commission on Law and Public Affairs, amicus curiae.

Reuben E. Gross, Staten Island, for Agudath Israel of America, amicus curiae.

Arnold Forster, Theodore Ellenoff, Edwin J. Lukas, Harvey Feuerstein, Abraham H. Foxman, Bertram S. Halberstadt, Paul Hartman, New York City, Samuel Rabinove and Sol Rabkin, New York City, for Anti-Defamation League of B'nai B'rith and another, amici curiae.

Murray A. Gordon, Marvin M. Karpatkin, Leo Pfeffer, Howard M. Squadron, David I. Ashe, Joseph B. Robison and Lester Greenberg, New York City, for American Jewish Congress and others, amici curiae.

SCILEPPI, Judge.

Section 1 of chapter 320 of the Laws of 1965 provides in part: 'It is hereby declared to be the public policy of the state that the public welfare and safety require that the state and local communities give assistance to educational programs which are important to our national defense and the general welfare of the state.' (L.1965, ch. 320, § 1.)

In keeping with this declaration of policy, the Legislature enacted subdivision 2 (renum. subd. 3 by L.1966, ch. 795) of section 701 of the Education Law, Consol.Laws c. 16, permitting the appropriate school authorities 'to purchase and to loan upon individual request, to all children * * * who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law, text-books. Text-books loaned to children enrolled in grades seven to twelve of said private schools shall be text-books which are designated for use in any public, elementary or secondary schools of the state or are approved by any boards of education, trustees or other school authorities. Such text-books are to be loaned free to such children subject to such rules and regulations as are or may be prescribed by the board of regents and such boards of education, trustees or other school authorities.'

Plaintiffs seek judgment that this statute violates both the State and Federal Constitutions. (N.Y.Const., art. XI, § 3; U.S.Const., 1st and 14th Amdts.) The defendant Commissioner of Education and the intervenors-defendants, parents of children residing in plaintiffs' school district who attend parochial schools, moved for dismissal of the complaint for failure to state a cause of action or for summary judgment declaring the statute constitutional. The plaintiff Boards of Education cross-moved for summary judgment declaring the statute unconstitutional.

Special Term denied all defendants' motions and granted plaintiffs' cross motion, holding that the plaintiffs had standing to sue; that the statute contravenes section 3 of article XI of the State Constitution (the 'Blaine Amendment'); and that the statute violates the establishment and free exercise clauses of the First Amendment.

The Appellate Division reversed upon the ground that the plaintiffs had no standing.

Since we must reach the merits in this case ¹, we come to the question whether this statute violates section 3 of article XI of the New York State Constitution: 'Neither the state nor any subdivision thereof shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institutional of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning.'

The last portion of this section, relating to the transportation of children, was added by special amendment to obviate the decision in Judd v. Board of Educ. (278 N.Y. 200, 15 N.E.2d 576, 118 A.L.R. 789 (1938)).

In Judd, this court by a vote of four to three declared that a law which provided for school busing of parochial school children could not be sustained because it constituted indirect aid to schools which was in violation of the Blaine Amendment. Judd determined that, although school busing was primarily for the benefit of the child, it still had the effect of giving an incidental benefit to sectarian schools and thus ran afoul of section 3 of article XI prohibiting indirect aid. It is now argued that the statute before the court providing for textbook loans to all children, including those attending parochial schools, must be unconstitutional for the same reason. We cannot agree with the reasoning of the majority in the Judd case and accordingly hold that it should not be followed. The New York State Constitution prohibits the use of public funds for a particular purpose; that is, aiding religiously affiliated schools. Certainly, not every State action which might entail some ultimate benefit to parochial schools is proscribed. Examples of co-operation between State and church are too familiar to require cataloguing here. As we said, although in a different context: 'It is thus clear beyond cavil that the Constitution does not demand that every friendly gesture between church and State shall be discountenanced. The so-called 'wall of separation' may be built so high and so broad as to impair both State and church, as we have come to know them'. (Matter of Zorach v. Clauson, 303 N.Y. 161, 172, 100 N.E.2d 463, 467, affd. 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954.) The architecture reflected in Judd would impede every form of legislation, the benefits of which, in some remote way, might inure to parochial schools. It is our view that the words 'direct' and 'indirect' relate solely to the means of attaining the prohibited end of aiding religion as such.

The purpose underlying section 701, found in the Legislature's own words (L.1965, ch. 320, § 1, supra), belies any interpretation other than that the statute is meant to bestow a public benefit upon all school children, regardless of their school affiliations. There can be no serious suggestion that the declaration of purpose by the Legislature was a verbal smoke screen designed to obscure a nefarious scheme to circumvent the New York State Constitution. No one in the last third of the 20th Century can doubt that a program aimed at improving the quality of education in all schools is a matter of legitimate State concern.

Since there is no intention to assist parochial schools as such, any benefit accruing to those schools is a collateral effect of the statute, and, therefore, cannot be properly classified as the giving of aid directly or indirectly.

Only textbooks designated for use by the public schools or approved by Boards of Education, trustees or school authorities may be lent (Education Law, § 701, subd. 3). The State and local governments have long provided public libraries with books for use by all persons. It is not uncommon for schools, public and private alike, to assign various 'outside readings' to pupils. Children often, then, fulfill assignments for courses in both public and private schools by means of using and borrowing from public libraries. We do not consider this indirect aid to private or parochial schools.

At a time when we have large-scale Federal and State aid to education, it is justly feared that children who are denied these benefits may receive education inferior to children in public schools. Unless certain types of aid can be made available to All children, we run the risk of creating an educational lag between children in public and private schools. We cannot perpetuate an erroneous interpretation of the State Constitution merely because it is contained in the reports of this court.

Having decided that section 701 entails no aid to the parochial schools, we thus hold that there is no Federal constitutional question under the establishment clause of the First Amendment. The State makes no affirmation of religious beliefs or activities within the public schools. Section 701 remains completely neutral with respect to religion, merely making available secular textbooks at the request of the individual student and asking no question about what school he attends. Despite the flexibility of the English language, it is impossible to conclude that loaning nonreligious textbooks to all students, including those who attend a parochial school, establishes a religion or constitutes the use of public funds to aid religious schools (cf. Everson v. Board of Educ. of Ewing Tp., 330 U.S. 1, 16, 18, 67 S.Ct. 504, 91 L.Ed. 711). ²

As a practical matter, to deny private school children the benefit of the State aid provided by section 701 could widen the gap between those children in deprived areas who attended parochial...