McCanna v. Sills

• Decision Date: 08 November 1968
• Docket Number: No. C--17,C--17
• Citation: 103 N.J.Super. 480,247 A.2d 691
• Parties: Henry A. McCANNA, Dorothy Belle Pollack, A. Milton Bell, Lamar Jones, Boris S. Bierstein, Board of Education of the Township of Teaneck, in the County of Bergen, Shirley Yost, Peter E. Stokes, and Marjorie A. Stokes, Plaintiffs, v. Arthur J. SILLS, Attorney General of the State of New Jersey, Carl L. Marburger, Commissioner of Education of the State of New Jersey, The New Jersey State Board of Education, Abram A. Vermeulen, Director, Division of Budget and Accounting of the State of New Jersey, John A. Kervick, Treasurer of the State of New Jersey, Archie F. Hay, Jr., Superintendent of Schools of Bergen County, New Jersey, Board of Education of the Borough of Closter, in the County of Bergen, Board of Education of the Township of River Vale, in the County of Bergen, and the Board of Education of the Pascack Valley Regional School District, in the County of Bergen, Defendants.
• Court: New Jersey Superior Court

Page 480

103 N.J.Super. 480

247 A.2d 691

Henry A. McCANNA, Dorothy Belle Pollack, A. Milton Bell Lamar Jones, Boris S. Bierstein, Board of Education of the Township of Teaneck, in the County of Bergen, Shirley Yost Peter E. Stokes, and Marjorie A. Stokes, Plaintiffs, v. Arthur J. SILLS, Attorney General of the State of New Jersey, Carl L. Marburger, Commissioner of Education of the State of New Jersey, The New Jersey State Board of Education, Abram A. Vermeulen, Director, Division of Budget and Accounting of the State of New Jersey, John A. Kervick Treasurer of the State of New Jersey, Archie F. Hay, Jr. Superintendent of Schools of Bergen County, New Jersey, Board of Education of the Borough of Closter, in the County of Bergen, Board of Education of the Township of River Vale, in the County of Bergen, and the Board of Education of the Pascack Valley Regional School District, in the County of Bergen, Defendants.

No. C--17.

Superior Court of New Jersey, Chancery Division.

Nov. 8, 1968.

Robert D. Gruen, Hackensack, for plaintiffs (Morton R. Covitz, Hackensack, appearing).

Arthur J. Sills, Atty. Gen., for defendants Arthur J. Sills, Attorney General of New Jersey; Carl L. Marburger, Comr. of Education of New Jersey; The New Jersey State Bd. of Education; Abram A. Vermeulen, Director, Div. of Budget and Accounting of N.J.; John A. Kervick, Treasurer of N.J., and Archie F. Hay, Jr., Superintendent of Schools of Bergen County, N.J. (Stephen G. Weiss, Deputy Atty. Gen., appearing).

Burke, Sheridan & Hourigan, Union City, for defendant Board of Education of Closter.

Parisi, Evers & Greenfield, Hackensack, for defendants Board of Education of River Vale Township, and Board of Education of Pascack Valley Regional School Dist.

LORA, J.S.C.

Plaintiffs bring this action alleging that chapter 74 of the Laws of 1967, as amended by chapter 29 of the Laws of 1968, the School Transportation Law, is unconstitutional in that it is violative of the First Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, in that it affects the establishment or advancement of religion.

The statute, in pertinent part, states: 'Whenever in any district there are pupils residing remote from any schoolhouse, the board of education of the district may make rules and contracts for the transportation of such pupils to and from school, including the transportation of school pupils to and from school other than a public school, except such school as is operated for profit in whole or in part.

When any school district provides any transportation for public school pupils to and from school pursuant to this section, transportation shall be supplied to school pupils residing in such school district in going to and from any remote school other than a public school, not operated for profit in whole or in part, located within the State not more than 20 miles from the residence of the pupil (provided) the per pupil cost of the lowest bid received does not exceed $150.00 and if such bid shall exceed said cost then the parent, guardian or other person having legal custody of the pupil shall be eligible to receive said amount toward the cost of his transportation to a qualified school other than a public school, regardless of whether such transportation is along established public school routes.'

This has been codified in N.J.S. 18A:39--1, N.J.S.A. which, in pertinent part, is identical with the above-quoted statute.

The case was submitted to the court on cross-motions for summary judgment based upon a written stipulation of facts with exhibits annexed.

The facts show that as of April 1967, 363,560 students were enrolled in New Jersey nonpublic schools, grades kindergarten through twelfth. Of this number 332,519 students attended 644 schools operated under the auspices of the Roman Catholic Church. Therefore, 91.4% Of the total nonpublic school population attended Roman Catholic schools. 88,782 students, or 26.6% Of the Roman Catholic school population, lived two miles or more from the schools they attended. Of that number 69,656 were transported to school by bus. This bus transportation was provided by 47 Roman Catholic schools, but counsel were unable to determine if the parents paid for the same. Bus transportation to 327 of the Catholic parochial schools was provided directly by parents. (Plaintiffs contend that said schools are now relieved at least of an administrative burden.)

During the 1967--68 school year the Board of Education of Teaneck Township transported 462 students to and from private schools, and of that total 402 students, or 87.01%, were transported to parochial schools run by various religious societies or groups. During this same school year defendant Pascack Valley Regional High School District Board of Education transported a total of 295 students to private schools at an average per pupil cost of $198.89. ¹ It also transported 741 public school pupils at an average per pupil cost of $114.98. The facts also show that the boards of education of Closter and Teaneck made expenditures in excess of $150 per pupil for the purpose of transporting pupils to private schools. Teaneck's cost for transporting 1,196 public school students to and from school was $51.73 per pupil during the 1966--67 school year. In 1965--66 the average per pupil cost was $57.90, and in 1964--65 it was $55.06.

The parochial schools have a course of education which is substantially the same as that of the public schools in New Jersey. However, the curriculum in each of these schools includes certain courses concerned with the tenets of the various religions sponsoring said schools, and organized sectarian prayer is included in the curriculum. Some of the faculty of these schools consist of Roman Catholic clergy, nuns, Protestant clergy and Jewish clergy.

In 1947 the United States Supreme Court upheld the constitutionality of N.J.S.A. 18:14--8, the predecessor of the statute here under consideration, in Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, affirming 133 N.J.L. 350, 44 A.2d 333 (E. & A. 1945). The continuing vitality of that decision was assured by the Supreme Court this year in the case of Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 242, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), wherein the court relied on the principles of Everson in upholding a New York law which made textbooks available to private school students on an equal basis with public school students. The majority opinion therein stated:

'Of course books are different from buses. Most bus rides have no inherent religious significance, while religious books are common.' (at p. 244, 88 S.Ct. at p. 1927.)

And Mr. Justice Douglas in his dissenting opinion noted:

'Whatever may be said of Everson, there is nothing idealogical about a bus.' (at p. 257, 88 S.Ct. at p. 1933.)

Mr. Justice Black, also dissenting, said:

'It is not difficult to distinguish books, which are the heart of any school, from bus fares, which provide a convenient and helpful general public transportation service. * * * a general and nondiscriminatory transportation service in no way related to substantive religious views and beliefs.' (at pp. 252--253, 88 S.Ct. at p. 1931.)

Plaintiffs contend, however, that Everson is not dispositive of the issues herein for the reason that N.J.S. 18A:39--1 N.J.S.A., is not identical with N.J.S.A. 18:14--8 which was under consideration in that case. The current statute differs from the former in that it does not restrict the bussing of private school students to established public school routes, and in that the former statute did not provide for a $150 maximum per pupil assistance, which the evidence establishes is more than the average cost of bussing public school students.

The criteria for decision in the present case were set down by the United States Supreme Court in School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963):

'The test may be stated as follows: What are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that 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. Everson v. Board of Education.' (at p. 222, 83 S.Ct. at p. 1571)

Mr. Justice White prefaced his application of the Schempp test in Allen by stating that

'* * * This test is not easy to apply, but the citation of Everson by the Schempp Court to support its general standard made clear how the Schempp rule would be applied to the facts of Everson.' Board of Education v. Allen, supra, 392 U.S. at p. 243, 88 S.Ct. at p. 1927.

Thus, the United States Supreme Court has approved of Everson as complying with the Schempp test.

In accordance with the Schempp test, plaintiffs' argument is two-pronged. First, they contend that the purpose of N.J.S. 18A:39--1 N.J.S.A., is to aid religion through aid to parochial schools. Secondly, they argue that the Primary effect of the statute is to support religion.

Plaintiffs seek to substantiate their position that the Legislature passed the bill for the purpose of aiding religion by inferences sought to be drawn from circumstances surrounding enactment. Initially, they point to the fact that most of the individuals who supported passage of the statute at public hearings were clergymen of various religions. Secondly, they maintain that a religious purpose is shown by the very fact that more than 91% Of all nonpublic school students in New Jersey attend schools which are operated under the auspices of various religions. Finally, it is plaintiffs' position that the language of the statute itself clearly demonstrates that the Legislature...