Cunningham v. Lutjeharms

• Decision Date: 07 April 1989
• Docket Number: No. 87-754,87-754
• Court: Nebraska Supreme Court
• Parties: , 52 Ed. Law Rep. 1233 James R. CUNNINGHAM, Individually and as Next Friend of his Minor Daughter, Janelle C. Cunningham, Appellee, v. Joseph E. LUTJEHARMS, Commissioner of Education, et al., Appellants.

Page 806

437 N.W.2d 806

231 Neb. 756, 52 Ed. Law Rep. 1233

James R. CUNNINGHAM, Individually and as Next Friend of his Minor Daughter, Janelle C. Cunningham, Appellee, v. Joseph E. LUTJEHARMS, Commissioner of Education, et al., Appellants.

No. 87-754.

Supreme Court of Nebraska.

April 7, 1989.

Syllabus by the Court

1. Constitutional Law: Schools and School Districts. The loan of textbooks designated for use in public schools to private school students under Neb.Rev.Stat. § 79-4,118 (Reissue 1987) is permissible under the Constitutions of Nebraska and the United States.

2. Constitutional Law: Statutes. A three-pronged analysis is used in determining whether legislation is violative of the first amendment's establishment clause. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; and, third, the statute must not foster an excessive government entanglement with religion.

3. Constitutional Law: Equal Protection. The establishment clause of the U.S. Constitution is applicable to the states through the 14th amendment to the U.S. Constitution.

4. Constitutional Law: Schools and School Districts. Neb.Rev.Stat. § 79-4,118 (Reissue 1987) does have a secular purpose: It provides all schoolchildren, public or private, with free textbooks designated for use in the public schools.

5. Constitutional Law: Schools and School Districts. Since the contents of the textbooks to be loaned to nonpublic students will be secular in nature, the principal or primary effect of Nebraska's textbook loan program will neither advance nor inhibit religion.

6. Constitutional Law: Schools and School Districts. Merely loaning secular textbooks to nonpublic school students, as provided in Neb.Rev.Stat. § 79-4,118 (Reissue 1987), will not require close supervision of nonpublic school teachers by government and will not foster an excessive government entanglement with religion.

7. Constitutional Law: Statutes. Although most decisions invoking the void for vagueness doctrine have dealt with criminal statutes, the doctrine applies equally to civil statutes.

8. Constitutional Law: Statutes. The established test for vagueness in a statute is whether it either forbids or requires the doing of an act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application.

9. Constitutional Law: Statutes. Even in criminal statutes, the language adopted need not afford an interpretation approaching mathematical certainty.

10. Constitutional Law: Schools and School Districts: Words and Phrases. The language of Neb.Rev.Stat. § 79-4,118 (Reissue 1987) is not so vague that a school board will be required to guess at its meaning. Upon individual request means upon request of the student.

11. Constitutional Law: Schools and School Districts. A parent or legal guardian may request textbooks on behalf of his or her nonpublic school student.

Robert M. Spire, Atty. Gen., and Harold Mosher, Lincoln, for appellants.

Steven G. Seglin and Robert B. Crosby, of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

This appeal seeks to have declared unconstitutional legislation requiring public school districts to purchase and loan textbooks to students in private schools. Textbook purchases would be funded through appropriations by Nebraska's Legislature.

We find the legislation, Neb.Rev.Stat. § 79-4,118 (Reissue 1987), constitutional.

James R. Cunningham brought this action in the Lancaster County District Court, seeking to borrow fourth-grade textbooks for his daughter, Janelle C. Cunningham, from the Lincoln, Nebraska, public school district in which she resides. Janelle Cunningham attends St. John's Elementary School in Lincoln.

Named as defendants are Joseph E. Lutjeharms, Commissioner of Education; the State Board of Education; and the State Department of Education. This lawsuit was presented as a case stated pursuant to Neb.Rev.Stat. § 25-903 (Reissue 1985). The statute at issue, § 79-4,118, provides in part:

(2) Boards of education shall have the power and duty to purchase and to loan textbooks to all children who are enrolled in kindergarten to grade twelve of a public school and, upon individual request, to children who are enrolled in kindergarten to grade twelve of a private school which is approved for continued legal operation under rules and regulations established by the State Board of Education pursuant to subdivision (5)(c) of section 79-328. The Legislature may appropriate funds to carry out the provisions of this subsection. A school district shall not be obligated to spend any money for the purchase and loan of textbooks to children enrolled in private schools other than funds specifically appropriated by the Legislature to be distributed by the State Department of Education for the purpose of purchasing and loaning textbooks as provided in this subsection. Textbooks loaned to children enrolled in kindergarten to grade twelve of such private schools shall be textbooks which are designated for use in the public schools of the school district. Such textbooks are to be loaned free to such children subject to such rules and regulations as are or may be prescribed by such boards of education. The State Department of Education shall adopt and promulgate rules and regulations to carry out the provisions of this section. The rules and regulations shall include provisions for the distribution of funds appropriated for textbooks. The rules and regulations shall include a deadline for applications from school districts for distribution of funds. If funds are not appropriated to cover the entire cost of applications, a pro rata reduction shall be made.

(Emphasis supplied.)

A "private school," for the purposes of this opinion, is synonymous with "nonpublic school," both of which include church-related schools. Based upon previous decisions by this court, the district court determined that the statute is constitutional. The appellants assign as error the district court's finding that § 79-4,118 does not violate the Constitution of Nebraska or the Constitution of the United States.

Stipulated facts show that in November of 1986, James Cunningham made a written request of the Lincoln Public Schools for the loan of textbooks designated for use in the fourth grade in the public school district. Cunningham's request was made individually and on behalf of his daughter. The Lincoln Public Schools made a written request of Joseph Lutjeharms, Commissioner of Education of the State of Nebraska, for the distribution of funds appropriated by the Legislature for the purchase of textbooks to be loaned to Janelle. Commissioner Lutjeharms refused to distribute the funds until the statute's constitutionality had been tested in court. This action ensued.

Appellants claim: (1) that the statute violates article VII, § 11, of the Nebraska Constitution; (2) that the statute violates the establishment clause of the first amendment to the U.S. Constitution; and (3) that the statute is impermissibly vague, in violation of article I, § 3, of the Nebraska Constitution and the 14th amendment to the U.S. Constitution.

Article VII, § 11, of the Nebraska Constitution, as amended in 1972, states: "[A]ppropriation of public funds shall not be made to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof...."

We have previously held that this section of the Nebraska Constitution, as amended, prohibits appropriations by the Legislature to nonpublic schools. See, State ex rel. Bouc v. School Dist. of City of Lincoln, 211 Neb. 731, 320 N.W.2d 472 (1982); Lenstrom v. Thone, 209 Neb. 783, 311 N.W.2d 884 (1981). Section 79-4,118 does not permit public funds to be distributed to nonpublic schools, nor does it permit publicly owned textbooks to be loaned to private schools. The statute authorizes and directs that, under certain conditions, public schools must loan to private school students, without charge, textbooks which are designed for use in public schools of the school district. Reading the statute in its entirety, the loan of textbooks treats all kindergarten to 12th-grade students alike, whether public or private students.

Before it was amended by the voters in 1972, article VII, § 11, of Nebraska's Constitution prohibited appropriation of public funds "in aid of" any nonpublic school.

In interpreting article VII, § 11, of Nebraska's Constitution when it prohibited appropriation of public funds "in aid of" any nonpublic school, this court held unconstitutional a statute requiring the loan of textbooks by public schools to nonpublic schools for students grades 7 to 12. Gaffney v. State Department of Education, 192 Neb. 358, 220 N.W.2d 550 (1974).

Appellants argue that whether it uses "to" any nonpublic school or "in aid of" any nonpublic school, article VII, § 11, of Nebraska's Constitution should be interpreted to prevent the loan of textbooks to private school students. Similar arguments were raised and rejected in Bouc, supra, Lenstrom, supra, and State ex rel. Creighton Univ. v. Smith, 217 Neb. 682, 353 N.W.2d 267 (1984). After the 1972 amendment, Bouc held it was constitutional to permit students, under certain conditions, to ride public school buses to private schools. In Lenstrom, it was held constitutional to issue grants of public funds to students who in turn used them to attend private colleges. A contract between the state and a nonpublic medical school involving cancer research was found constitutional in Smith. The discussions in those cases are thorough and will not be repeated here. For the reasons given in Bouc, Lenstrom, and Smith, § 79-4,118 does not violate article VII, § 11, of the Nebraska...