Johnson v. Sanders

• Decision Date: 15 October 1970
• Docket Number: Civ. A. No. 13432.
• Citation: 319 F. Supp. 421
• Parties: Rita JOHNSON et al., Plaintiffs, v. William J. SANDERS, Secretary of the State Board of Education of the State of Connecticut, et al., Defendants.
• Court: U.S. District Court — District of Connecticut

319 F. Supp. 421

Rita JOHNSON et al., Plaintiffs, v. William J. SANDERS, Secretary of the State Board of Education of the State of Connecticut, et al., Defendants.

Civ. A. No. 13432.

United States District Court, D. Connecticut.

October 15, 1970.

COPYRIGHT MATERIAL OMITTED

John Q. Tilson, Wiggin & Dana, New Haven, Conn., for Conn. Assoc. of Independent Schools.

Jeffrey Mines, Hartford, Conn., Richard Belford, New Haven, Conn., of counsel, for plaintiff Jewish Community Relations Council.

Peter L. Costas, Paul W. Orth, Hartford, Conn., for Americans United for Separation of Church & State; Leo Pfeffer, New York City, John A. Berman, Hartford, Conn., of counsel.

Robert K. Killian, Atty. Gen., F. Michael Ahern, Asst. Atty. Gen., Hartford, Conn., for William J. Sanders, et al.

Joseph P. Cooney, Cooney & Scully, Hartford, Conn., Joseph G. Skelly, William B. Ball, Ball & Skelly, Harrisburg, Pa., for intervenors James Buckley, et al.

Before ANDERSON, Circuit Judge, and BLUMENFELD and CLARIE, District Judges.

MEMORANDUM OF DECISION

ANDERSON, Circuit Judge:

This is an action seeking a declaration that Connecticut's Public Act 791, C.G.S. § 10-281a to § 10-281v (1969), designated the "Nonpublic School Secular Education Act," violates the First and Fourteenth Amendments to the United States Constitution, and also seeking to enjoin the defendant State officials from allocating or expending funds under this statute. Jurisdiction is based on 28 U.S.C. § 1331(a) and this statutory three-judge court has been convened to consider the injunction request pursuant to 28 U.S.C. §§ 2281 and 2284.

The Act in question authorizes the Secretary of the State Board of Education to contract with the operators of certain privately-owned non-profit elementary and secondary schools for the public purchase of "secular educational services" to be supplied to children who are Connecticut residents. Each school sells the State a service defined as "providing instruction in a secular subject," which includes instruction in any course also presented as part of "the curricula of the public schools" of Connecticut. The amount which operators of contracting schools may receive for providing such services is limited to a sum totalling twenty per cent of the salaries they in turn pay teachers of "secular subjects," plus an additional amount based on the cost of textbooks used for such subjects by each resident student attending these schools.¹

The Act also provides that contracting non-public schools must use the funds with which the State purchases "secular educational services" from them in specific ways. Not only is the amount which these schools receive determined by the cost of teachers' salaries and textbooks, but public funds may be used only for these two components of the actual expense of providing the "instruction" in "secular subjects." The Secretary may "reimburse" contracting schools only after they have used their own funds for designated teachers' salaries and textbooks.²

In addition, the Act includes a set of specifications concerning the admissions policies of schools through which the State arranges for the furnishing of "secular educational services" to Connecticut children. It requires that each school file an annual certificate of compliance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-5, which concerns an absence of racial discrimination in federally-assisted programs.³ In the next sentence, the Act specifies a policy of "open enrolment for all qualified students meeting an individual school's academic and other reasonable admission requirements without regard to race, religion, creed or national origin." The sentence goes on to reveal, however, that this "open" policy is applicable only to a statutorily-fixed quota of admissions available at contracting schools. A school which is "financially supported by regular contributions" of "parishioners or other supporters," independent of fees for any individual child's attendance at the school, "may give a preference" to the children of members of the parish or of such contributors. The number of registrations "open" to all other "qualified" applicants meeting "academic or other reasonable admission requirements" is limited to that fraction of enrollment which corresponds to the percentage which State funds, paid under the Act, represent of the total yearly operating cost of the school.

The plaintiffs, six Connecticut taxpayers, include parents of children attending public schools and the Superintendent of Schools for the Town of East Lyme. Two of the plaintiffs are parents of Negro children. They all contend that Act 791 creates both an unconstitutional establishment of religion and a set of enrollment rules which violate their rights to equal protection of the laws.⁴ The plaintiffs, the defendant officials, and twelve parents of children attending Connecticut non-public schools, who have been granted permission to intervene as defendants, have filed motions and cross-motions for summary judgment under Rule 56, F.R.Civ.P.

I. Establishment of religion

By the date of the hearing on these motions, institutions maintaining some 263 Connecticut non-public schools, attended by approximately 91,357 Connecticut resident pupils in 1969-70, had contracted with the State under the Act; and all are scheduled to receive initial disbursements on September 1, 1970. Of these schools, 217 or more are operated by religious bodies. The denominational or parochial schools, of which at least 210 are Roman Catholic,⁵ enroll about 87.5% of the total number of pupils receiving state-funded "secular educational services" from contracting schools. The plaintiffs contend that the provisions for payment of general public tax funds to these 217 schools under the Act constitute an establishment of religion. As Connecticut citizens and taxpayers, all six have standing to raise this question.⁶ Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1967); DiCenso v. Robinson, 316 F.Supp. 112 (D.R.I. 1970); cf. Lemon v. Kurtzman, 310 F. Supp. 35 (E.D.Pa.1969), prob. juris. noted, 397 U.S. 1034, 90 S.Ct. 1354, 25 L.Ed.2d 646 (1970).

When a state education statute's validity is called into question by such a challenge, "to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968), quoting from Abington School District v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). The purposes and effects to be considered under this test vary with the specific type of legislative enactment in question, and courts which apply it must beware "the hazards of placing too much weight on a few words or phrases" extracted selectively from opinions dealing with very different facts. Walz v. Tax Commission of City of New York, 397 U.S. 664, 670, 90 S.Ct. 1409, 1412, 25 L.Ed.2d 697 (1970). For this reason we see no special significance in the dictum emphasized by the plaintiffs, which states that "No tax in any amount, large or small, can be levied to support any religious activities or institutions. * * *" Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). A distinct "Everson principle" mechanically barring any public financial aid which is paid directly to religiously-affiliated institutions cannot be spun from this verbal cobweb on the theory that it represents controlling precedent, in the absence of a holding in a case actually resembling the one before us. Tilton v. Finch, 312 F.Supp. 1191, 1197 (D.Conn.) prob. juris. noted, 399 U.S. 904, 90 S. Ct. 2200, 26 L.Ed.2d 558 (1970). Accord, DiCenso v. Robinson, supra; Lemon v. Kurtzman, supra. The Establishment Clause test to be applied to this Act is a complex one of "purpose" and "primary effect."

The legislative purpose for the enactment of Act 791 appears with sufficient clarity on its face. Cf. Tilton v. Finch, supra. Section 2, C.G.S. § 10-281b, sets out a state policy of assuring that all Connecticut children "be furnished a good education," either in public or in appropriate non-public schools. It further enunciates an intention to "render some financial aid" to non-public schools, in tandem with governmental "support" of public schools, as part of the State's "general program to promote education." "To the extent that such schools teach religious subjects," it adds, "the intent of this act is that no financial assistance to them shall support or advance any religion or any instruction in religious tenets, doctrine or worship." But insofar as parochial non-public schools "teach secular subjects in a secular manner," the legislation states, "they are entitled to the same assistance as other nonpublic schools." The Act thus announces the purpose of providing funds for certain secular activities of parochial and other non-public schools as an integral part of a general state program of financially "assisting" or "promoting" elementary and secondary education for all Connecticut children. See Board of Education v. Allen, 392 U.S. at 243, 88 S.Ct. 1923, 20 L.Ed.2d 1060; see also Note, Legislative purpose and Federal Constitutional Adjudication, 83 Harv.L.Rev. 1887, 1891-93, 1898-99 (1970).

The "primary effect" of legislation, however, is not always precisely that which its authors optimistically predict in their statements of purpose. In the present case, the distribution of funds in accordance with the Act would certainly allow the State to "assist" or "promote" the education of children attending contracting schools, thereby contributing to the general welfare. But the primary effect of the type of "promotion" prescribed would be much more extensive, transforming a unitary public school system into a dual one which partially incorporates participating private schools as its...