Board of Ed. of Borough of Woodbury Heights v. Gateway Regional High School Dist.

Decision Date19 December 1968
Docket NumberL--2941
PartiesThe BOARD OF EDUCATION OF the BOROUGH OF WOODBURY HEIGHTS, Plaintiff, v. GATEWAY REGIONAL HIGH SCHOOL DISTRICT, J. Harvey Shue, Superintendent of Schools for Gloucester County, and Dr. Carl L. Marburger, Commissioner of Education of the State of New Jersey, Defendants. No
CourtNew Jersey Superior Court

Falciani, Cotton & Chell, Woodbury, (Eugene P. Chell, Woodbury, appearing), for plaintiff.

Hannold & Hannold, Woodbury, (Harold W. Hannold, Woodbury, appearing), for defendant Gateway Regional High School Dist.

Arthur J. Sills, Atty. Gen. (Stephen G. Weiss, Deputy Atty. Gen., appearing), for defendants J. Harvey Shue and Dr. Carl L. Marburger.

BROWN, R. COOPER, J.S.C.

Plaintiff seeks a declaratory judgment construing the meaning and legal effect, as to it, of L.1967, c. 74, since amended by L.1968, c. 29 and now known as N.J.S. 18A:39--1 et seq., N.J.S.A. Plaintiff also seeks a determination as to whether it shall be obligated to pay Gateway Regional High School District (hereinafter 'Gateway') for transporting nonpublic school students who live within the Borough of Woodbury Heights ans who attend private, nonprofit schools from kindergarten through sixth grade and also from grades seven through twelve, to such schools as are not more than 20 miles from the residence of such pupils.

The facts are not disputed and all parties have moved for summary judgments.

Defendant Gateway is a regional junior high school and a high school district composed of students from grades 7 through 12 from the Boroughs of Woodbury Heights. Wenonah, Westville and National Park, all in Gloucester County, New Jersey.

Plaintiff (hereinafter 'Woodbury Heights') does not now, nor has it ever, transported or paid for the transportation of any students living within its jurisdiction to any school within or without its jurisdiction, with the exception of providing certain transportation under R.S. 18:14--9. When the voters in Woodbury Heights on June 28, 1962 elected to become a part of Gateway, the ballot stated specifically that the grades for which they were joining were 7 through 12, inclusive. Thereafter, and down to the present time, none of the pupils from grades 7 through 12, attending Gateway are afforded any public transportation, although that regional district does provide public transportation for its students from the other three municipalities.

On August 17, 1967 Woodbury Heights, having been made aware of the fact that Gateway intended to provide transportation for students within the jurisdiction of Woodbury Heights who attend private, nonprofit schools from kindergarten through grade 6, as well as those from grades 7 through 12, notified Gateway in writing that it would not accept the responsibility of reimbursing Gateway for such transportation, alleging that such transportation was not within the meaning of the statute referred to above. Gateway, nevertheless, is providing such transportation and does intend to charge Woodbury Heights therefor under the provisions of the above act.

On May 26, 1967 Governor Hughes signed into law Assembly Bill No. 21, as amended (L.1967, c. 74). The bill expanded the then existing school transportation provisions in several substantial respects, beginning July 1, 1967. One portion pertained specifically to regional school district transportation. Thus, it was provided that 'Whenever any regional school district provides any transportation for pupils attending schools other than public schools pursuant to this act, said regional district shall assume responsibility for the transportation of all such pupils, and the cost of such transportation for pupils below the grade level for which the regional was organized, shall be prorated by the regional district to the constituent districts on a per pupil basis after approval of such cost by the county superintendent of schools.' N.J.S. 18A:39--1, N.J.S.A.

Woodbury Heights is the governing body of a school district composed of the Borough of Woodbury Heights. The district is a 'Type II' school district (formerly 'Chapter 7') organized for grades kindergarten through six.

There are residing in Woodbury Heights some nine children who attend private, nonprofit schools in grade levels below grade 7 and who are transported to school pursuant to N.J.S. 18A:39--1, N.J.S.A. These children, since they live 'remote,' are being transported to school by Gateway. In accordance with the requirement of N.J.S. 18A:39--1, N.J.S.A., the cost of such transportation is being prorated by the regional district among the constituent districts on a per pupil basis, and Gateway has billed Woodbury Heights for the costs so incurred. Woodbury Heights has challenged this billing, asserting that since no kindergarten to grade 6 public school pupils residing in Woodbury Heights are being transported, there was no responsibility placed upon it to pay for the transportation by Gateway of private, nonprofit school pupils in grade levels below that for which Gateway is organized (7 through 12).

Woodbury Heights, in its motion for summary judgment, advances the following four main arguments:

I. R.S. 18:14--8, as revised, is not intended to compel the Borough of Woodbury Heights to provide payment for transportation of private school students, grades kindergarten to 6 Wherein it does not provide a like service for those attending public schools.

II. R.S. 18:14--8, as amended, if intended to compel the Borough of Woodbury Heights to provide payment for transportation of private school students, grades kindergarten to 6, whereas it does not provide a like service for those attending public schools, violates the 'equal protection' guarantee afforded plaintiff's constitutent taxpayers under the Fourteenth Amendment of the United States Constitution.

III. R.S. 18:14--8, as amended, reviewed by standards established by recent United States Supreme Court decisions, contravenes the separation of Church and State, as guaranteed by the 'establishment clause' of the First Amendment of the United States Constitution.

IV. By joining in the formation of Gateway, Woodbury Heights did not surrender its right to determine who, in its territorial jurisdiction should be transported to school in grade levels below 7.

All defendants contend that N.J.S. 18A:39--1, N.J.S.A., is valid and constitutional, and that Woodbury Heights is, by its terms, required to pay its pro rata share of costs incurred by Gateway in transporting the children in question to private, nonprofit schools in grade levels below 7.

The complaint in this action does not specifically raise any issues of constitutional dimension. Indeed, it appears to allege only that N.J.S. 18A:39--1, N.J.S.A., simply does not require Woodbury Heights to pay any sums for the transportation by Gateway of kindergarten through grade 6, private, nonprofit students residing in Woodbury Heights. Nevertheless, Woodbury Heights's brief is primarily devoted to a discussion of federal constitutional issues. Defendants contend that plaintiff, being a local school board, is without standing to impugn the constitutionality of the act.

A brief statutory history of this law may prove helpful in understanding and interpreting the intention of the Legislature.

The earliest pupil transportation law in New Jersey was enacted in 1894. See L.1894, c. 335, § 22. It vested discretion in local boards of education to provide transportation to public school for children living remote and to levy a special tax for that purpose.

In 1900 the law was amended to provide as follows:

'Whenever in any school district there shall be children living remote from any school house, the board of education of such district may make rules and contracts for the transportation of such children to and from school.' L.1900, c. 96, § 118.

The school transportation law remained in the above form, except for minor changes, until 1941.

In the interim, a substantial question was raised as to whether local school boards were required (rather than simply permitted) to transport to public school any child living remote therefrom. Prior to 1907, N.J.S.A. 18:11--1 (now N.J.S. 18A:33--1, N.J.S.A.) provided that 'each school district shall provide suitable school facilities and accommodations for all children residing in the district and desiring to attend the public schools therein.' In Board of Education, Frelinghuysen Tp. v. Atwood, 73 N.J.L. 315, 62 A. 1130 (Sup.Ct.1906), affirmed 74 N.J.L. 638, 65 A. 999 (E. & A.1906), the court held that a board of education was under no statutory obligation to provide for the transportation of public school children. In 1907 N.J.S.A. 18:11--1 was amended with the term 'suitable school facilities' broadened so as to expressly include 'convenience of access to the public schools.' L.1907, c. 123, § 1. Thus, N.J.S.A. 18:11--1 provided as follows:

'Each school district shall provide suitable school facilities and accommodations for a children who reside in the district and desire to attend the public schools therein. Such facilities and accommodations shall include proper school buildings, together with furniture and equipment, convenience of access thereto, and course of study suited to the ages and attainments of all pupils between the ages of five and twenty years. Such facilities and accommodations may be provided either in schools within the district convenient of access to the pupils, or as provided in sections 18:14--5 to 18:14--9 of this title.'

The Legislature specifically stated then that each school district 'shall' provide suitable school facilities and accommodations for all children who wish to attend public school in the district and that such facilities and accommodations 'shall include * * * convenience of access thereto.' Thus, in the discharge of its mandatory obligation to provide 'convenience of access' a board of education was henceforth...

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3 cases
  • West Morris Regional Bd. of Ed. v. Sills
    • United States
    • United States State Supreme Court (New Jersey)
    • June 25, 1971
    ...violated the establishment clause of the First Amendment, and was sustained in Board of Education of Borough of Woodbury Heights v. Gateway Regional High School, 104 N.J.Super. 76, 248 A.2d 564 (Law. Div.1968), against a charge that the statute discriminated against pupils in public schools......
  • West Morris Regional Bd. of Ed., Morris County v. Sills
    • United States
    • Superior Court of New Jersey
    • April 28, 1970
    ...Clause. Thereafter, Judge R. Cooper Brown reached the same conclusion in Board of Education of Woodbury Heights v. Gateway Regional High School Dist., 104 N.J.Super. 76, 248 A.2d 564 (Law Div.1968). No appeal was presented in either case. Plaintiffs here contend that these two trial court d......
  • Board of Educ. of Tp. of Wayne v. Kraft
    • United States
    • New Jersey Superior Court – Appellate Division
    • June 2, 1994
    ...because the purpose behind N.J.S.A. 18A:39-1 is the safety and welfare of the children. See Board of Educ. v. Gateway Reg. High Sch. Dist., 104 N.J.Super. 76, 86, 248 A.2d 564 (Law Div.1968) (explaining that the legislative purpose is to guard children "against the hazards attendant upon tr......

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