Fannin v. Williams
| Decision Date | 06 July 1983 |
| Citation | 655 S.W.2d 480 |
| Parties | 13 Ed. Law Rep. 549 Vyda FANNIN, et al., Appellants, v. Barbara WILLIAMS, as State Librarian of the Commonwealth of Kentucky, et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Jennifer B. Coffman, Lexington, for appellants; John J. Slattery, Jr., Gen. Counsel, Kentucky Educ. Ass'n, Louisville, of counsel.
B. Keefe Montgomery, Theodore H. Amshoff, Jr., Louisville, Monte Gross, Dept. of Finance, Frankfort, for appellees; Patrick Monaghan, Gen. Counsel, Catholic League for Religious and Civil Rights, Milwaukee, Wis., of counsel.
This is a declaratory judgment action challenging the validity of KRS 171.215, a statute supplying textbooks to children in the state's nonpublic schools (Kentucky Acts, 1978, Ch. 139, effective June 17, 1978).
The complaint attacked the nonpublic school textbook statute as unconstitutional under sections 3, 5, 171, 180, 184, 186 and 189 of the Kentucky Constitution; as an unconstitutional delegation of legislative power to administrative officials; and as unconstitutional under the First and Fourteenth Amendments to the Constitution of the United States. On motion for summary judgment, the trial court dismissed all of these grounds.
This summary judgment was appealed. The appeal was transferred from the Court of Appeals to the Supreme Court pursuant to CR 76.18.
The title of the statute in question is:
"AN ACT relating to textbooks and making an appropriation therefor."
The text of the statute is as follows:
(2) The chief school administrator of each eligible school may file a requisition with the state librarian for the books needed for the next ensuing school term. Textbooks eligible for distribution by grade level or subject shall conform to the schedule in use by the state board of education for distribution to the public schools.
(3) The state librarian shall develop rules and regulations governing the purchase, requisition, distribution, assignment to students, care, use and return of textbooks, and a plan for permanently labeling the textbooks as the property of the department of libraries. The rules and regulations shall provide for the allocation of textbooks in a manner reflecting, and not to exceed the expressly limited appropriation to fund the Act. The rules and regulations shall be developed in consultation with the department of education and shall conform, within statutory limits, to the rules and regulations already established by the state board of education.
(4) All textbooks purchased under the provisions of this Act are the property of the state. Each school administrator obtaining books through the department of libraries is custodian of the books in his school. He shall issue the books to the students according to the rules and regulations formulated by the state librarian.
(5) Funds appropriated by the general assembly to the department of libraries for this purpose shall not be expended for any textbooks which present a particular religious philosophy and shall not be considered as or commingled with common school funds and shall be allocated each year to the nonpublic school students as provided by rule and regulation of the department of libraries to the extent allowed by the appropriation provided in Section 2 of this Act.
Section 2. To carry out the provisions of this Act, there is appropriated to the department of libraries $25,000 for fiscal year 1978-79, which sum shall not lapse but shall be carried forward to the next fiscal year."
Because we have reached the conclusion, albeit reluctantly, that regardless of its salutory purpose the statute violates the Kentucky Constitution, it would extend this opinion unnecessarily to examine all of the complaints against the constitutionality of the statute and the responses thereto. It is only necessary to deal with the points that compel this conclusion.
Section 171 of the Kentucky Constitution specifies that "Taxes shall be levied and collected for public purposes only." Is the appropriation of tax money for educating children in nonpublic schools "for public purposes?" These textbooks are for "distribution without cost to pupils attending grade one (1) through grade twelve (12) of the state's nonpublic schools." Section 2 of the Act appropriates $25,000 for that purpose.
KRS 158.030 defines a "common school." It is "an elementary or secondary school of the state supported in whole or in part by public taxation." It is a term synonymous with "public" school. Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S.W.2d 963 (1943). It is a term treated as mutually exclusive with nonpublic school by the provisions of KRS 159.030, which require compulsory attendance at public school for school age children with certain exceptions, one of which is a child "enrolled and in regular attendance in a private or parochial regular day school approved by the state board of education." It is these "private or parochial schools" whose services are aided and assisted by the statute in question.
Under the terms of the statute in question, these "nonpublic schools" obtain textbooks for children in their schools on requisition filed by the chief school administrator of each eligible school with the state librarian. The school administrator is then "the custodian of the books in his school." He is directed to issue the books to the students according to the rules and regulations formulated by the state librarian in consultation with and conformity to rules and regulations established by the State Board of Education.
The only issue for purposes of Section 171 is whether the money is being used for a public purpose. This depends on whether the "use is a public one and is calculated to aid all the people in the state." Kentucky Building Commission v. Effron, Ky., 310 Ky. 355, 220 S.W.2d 836 (1949). Nonpublic schools are open to selected people in the state, as contrasted with public schools which are open to "all people in the state."
Section 184 of the Kentucky Constitution provides:
"No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation...."
In Brown v. Board of Education of Newport, 108 Ky. 783, 57 S.W. 612 (1900), we said:
"... (T)he text of (Section 184) shows clearly that the intention was to prohibit the collection of any taxes to any extent for educational purposes other than common schools, without the consent of the people."
The federal constitution is silent on the subject of education, leaving this most important function to the several states. Our state constitution provides for and regulates this function primarily under the title, "Education," Sections 183-189 inclusive. These sections start with the requirement that the General Assembly "provide for an efficient system of common schools throughout the state." They end with the requirement that "no portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian, or denominational school." A fair reading of these seven sections of the constitution compels the conclusion that money spent on education is to be spent exclusively in the public school system, except where the question of taxation for an educational purpose has been submitted to the voters and the majority of the votes cast at the election on the question shall be in favor of such taxation. Kentucky Constitution, Section 184, supra.
The statute in question seeks to evade constitutional limitations by a series of devices, which do more to point up the constitutional problems than to avoid them. These include:
(1) Directing the department of libraries to purchase and distribute the textbooks instead of the department of education. But the textbooks shall conform to the schedule in use by the state board of education and the rules and regulations for their purchase and use shall be developed in consultation with, and conform to those established by, the state board of education.
(2) The statute states the books are for distribution to the pupils. But it is the private or parochial school administrator who is charged with their requisition, their custodial care, their use and their return.
(3) The textbooks are to be purchased from money appropriated by the general assembly rather than the common school fund. But it is no less public money from public taxes.
The framers of our Constitution did not intend for the legislature to spend public money to support private schools by these devices.
Section 3 of the Kentucky Constitution prohibits payment of public money "to any man or set of men, except in consideration of public services."
If we were to arbitrarily assume, contrary to the facts, that the statute benefits only the children in the nonpublic schools, to the exclusion of any benefit to the function of the schools, if we were able to completely separate the two, we would then be in conflict with Section 3 of the Constitution. When the statute is confronted foursquare, the dilemma is insolvable.
In Barker v. Crum, 177 Ky. 637, 198 S.W. 211 (1917), the Court ruled that certain students were receiving an exclusive privilege without rendering a public service, so as to violate Section 3 of the Kentucky Constitution, under a law which provided that...
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