Members of Jamestown School Committee v. Schmidt

• Decision Date: 15 August 1979
• Docket Number: No. 78-60-A,78-60-A
• Citation: 122 R.I. 185,405 A.2d 16
• Parties: MEMBERS OF the JAMESTOWN SCHOOL COMMITTEE et al. v. Dr. Thomas C. SCHMIDT et al. ppeal.
• Court: Rhode Island Supreme Court

Page 16

405 A.2d 16

122 R.I. 185

MEMBERS OF the JAMESTOWN SCHOOL COMMITTEE et al. v. Dr. Thomas C. SCHMIDT et al.

No. 78-60-Appeal.

Supreme Court of Rhode Island.

Aug. 15, 1979.

[122 R.I. 210] Revens, DeLuca & Najarian, Amato A. DeLuca, Warwick, for plaintiffs.

Dennis J. Roberts, II, Atty. Gen., John R. McDermott, Sp. Asst. Atty. Gen., for defendants.

Thomas W. Pearlman, David Hassenfeld, Providence, Joseph E. Marran, Jr., Pawtucket, Arnold E. Johnson, North Providence, for intervenors.

OPINION

BEVILACQUA, Chief Justice.

The United States District Court for the District of Rhode Island has certified for our resolution ¹ three questions concerning G.L.1956, §§ 16-21.1-1, -2, -3 (Supp.1978) (hereinafter referred to as the act). This statute provides a program for busing pupils to schools not within the limits of the city or town in which the students reside. The plaintiffs, both individually as taxpayers of their towns and collectively as members of the School Committees of Jamestown and Charlestown, brought an action in the Federal District Court against the Commissioner of Education (the commissioner) and other state defendants, seeking a declaratory judgment that the act violates both the State and Federal Constitutions and an injunction against administration of the statute. The following questions were certified:

1. Does the act violate article XII of the Rhode Island Constitution?

2. Does the act violate article IV, section 2 of the Rhode Island Constitution?

3. Can the act be fairly construed to avoid federal constitutional infirmities?

Before addressing the certified questions, we note that while the Federal District Court has the fundamental obligation to determine whether the act violates the Federal Constitution, the function of this court is to construe the act ² and to decide whether it contravenes the Rhode Island Constitution.

Nowak, Rotunda, Young, Handbook on Constitutional Law 21 (1978).

The General Assembly has divided Rhode Island into five transportation districts. Section 16-21.1-2. The act further provides that students, whether they attend public schools or nonpublic, nonprofit, regionalized or consolidated schools, shall be transported to school by bus in two instances. First, a student who both resides in and attends school in the same transportation district receives transportation. Section 16-21.1-2. Second, under certain conditions, a pupil who attends a school outside the transportation region in which he resides, but within 15 miles of his residence, may obtain busing services by acquiring a variance from the commissioner. The latter provision is predicated upon findings by the commissioner that no similar school exists within the region in which the pupil resides and that bus transportation is necessary to enable the student to enjoy an educational opportunity that is rightfully his or hers to pursue. Only upon making such findings may the commissioner grant a variance requiring a city or town to provide bus transportation. Section 16-21.1-3.

I

The plaintiffs contend that the act violates article XII of the Rhode Island Constitution by diverting tax dollars appropriated for the support of public schools to the transportation of students enrolled in nonpublic schools. The relevant sections of article XII are as follows:

" § 1. Duty of general assembly. The diffusion of knowledge, as well as of virtue, among the people, being essential to the preservation of their rights and liberties, it shall be the duty of the general assembly to promote public schools, and to adopt all means which they may deem necessary and proper to secure to the people the advantages and opportunities of education.

" § 2. Permanent school fund. The money which now is or which may hereafter be appropriated by law for the establishment of a permanent fund for the support of public schools, shall be securely invested, and remain a perpetual fund for that purpose.

" § 4. Implementation of article Diversion of funds. The general assembly shall make all necessary provisions by law for carrying this article into effect. They shall not divert said money or fund from the aforesaid uses, nor borrow, appropriate, or use the same, or any part thereof, for any other purpose, under any pretence whatsoever."

The plaintiffs note the clear mandate in section 2 of article XII that the permanent school fund be applied specifically for the support of public schools and interpret section 4 in conjunction with section 1 of the same article as prohibiting the diversion of funds from the support of public schools to the promotion of private schools. Typical of what plaintiffs perceive as an unconstitutional diversion of funds is the allocation of money for the purpose of transporting students by publicly funded buses to private schools.

At the outset we note that this court must construe a duly enacted statute to be constitutional if such a construction is reasonably possible. State v. Authelet, R.I., 385 A.2d 642, 647 (1978); J. M. Mills, Inc. v. Murphy, 116 R.I. 54, 71, 352 A.2d 661, 670 (1976). Before we decide whether the act corresponds to the intent of the constitutional framers, we shall first seek to glean that intention from the language in section 1 of article XII.

The text of article XII, section 1 is facially ambiguous. It is unclear whether the duties of the General Assembly "to secure to the people the advantages and opportunities of education" was intended by the constitutional framers to be limited to public education. If we apply the maxim Noscitur a sociis ³ to this language, then the word "education" would be read in light of the less comprehensive idea "public education." See Commonwealth v. Baker, 368 Mass. 58, 68, 330 N.E.2d 794, 800 (1975); Deignan v. Cowan Plastic Products Corp., 99 R.I. 193, 196, 206 A.2d 534, 536 (1965). See also 2A Sutherland, Statutory Construction § 47.16 at 101 (4th ed. Sands 1973). As a result, the word "education" is qualified by the word "public" and all the duties of the General Assembly would be read as bounded by the domain of public education.

On the other hand, section 1 is worded in the conjunctive:

"it shall be the duty of the general assembly to promote public schools, And to adopt all means which they may deem necessary and proper to secure to the people the advantages and opportunities of education." (Emphasis added.)

Generally, the conjunctive "and" should not be considered as the equivalent of the disjunctive "or." See Earle v. Zoning Board of Review, 96 R.I. 321, 324, 191 A.2d 161, 163 (1963). Use of the conjunctive implies separate, as opposed to dependent, duties. See 1A Sutherland, Statutory Construction § 21.14 at 90-91 (4th ed. Sands 1972). Therefore, we could interpret the duty of the General Assembly to promote public schools as entirely independent of its duty to adopt all means necessary and proper to secure to the people the advantages and opportunities of education. Because both interpretations of article XII, section 1 are equally viable, we choose to view the constitutional mandate of that section in broad terms and hold that the right of the General Assembly to bus students is not limited to public-school pupils for the reasons set forth below.

State courts have diverged on whether school-busing legislation violates their state constitutions. A minority of courts, relying on now-defunct precedent, has held that it is not constitutional for states to use public funds to implement a statute providing for the transportation of nonpublic-school students. See, e. g., Matthews v. Quinton, 362 P.2d 932 (Alaska 1961); Opinion of the Justices, 9 Storey 196, 59 Del. 196, 216 A.2d 668 (1966); Spears v. Honda, 51 Haw. 1, 449 P.2d 130 (1968); Epeldi v. Engelking, 94 Idaho 390, 488 P.2d 860 (1971); Board of Education v. Antone, 384 P.2d 911 (Okl.1963); Gurney v. Ferguson, 190 Okla. 254, 122 P.2d 1002 (1942); Visser v. Nooksack Valley School District No. 506, 33 Wash.2d 699, 207 P.2d 198 (1949); State ex rel. Reynolds v. Nusbaum, 17 Wis.2d 148, 115 N.W.2d 761 (1962). In so ruling, these courts relied on the reasoning of the New York Court of Appeals in Judd v. Board of Education, 278 N.Y. 200, 15 N.E.2d 576 (1938), which held that nonpublic-school busing is an indirect contribution made in aid of the maintenance and support of private schools. Id. at 211-12, 15 N.E.2d at 582. Approximately thirty years later, however, the New York court expressly overruled Judd In Board of Education v. Allen, 20 N.Y.2d 109, 115, 281 N.Y.S.2d 799, 803, 228 N.E.2d 791, 794 (1967), Aff'd in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), thereby weakening the impact of cases premised on Judd.

A growing number of jurisdictions, however, adopting what is commonly referred to as the child-benefit theory, has rejected the view that legislation permitting busing to nonpublic schools, thus contributing indirectly to the maintenance and support of those schools, is constitutionally infirm. See, e. g., Bowker v. Baker, 73 Cal.App.2d 653, 663, 167 P.2d 256, 261 (1946); Snyder v. Town of Newtown, 147 Conn. 374, 391, 161 A.2d 770, 777 (1960); Board of Education v. Bakalis, 54 Ill.2d 448, 461, 299 N.E.2d 737, 743 (1973); Nichols v. Henry, 301 Ky. 434, 439, 191 S.W.2d 930, 932 (1945); Bloom v. School Committee, Mass., 379 N.E.2d 578, 585 (1978); Rhoades v. Abington Township School District, 424 Pa. 202, 220, 226 A.2d 53, 64 (1967); State ex rel. Hughes v. Board of Education, 154 W.Va. 107, 121-22, 174 S.E.2d 711, 720 (1970). Under this theory, transportation of pupils is viewed as a legitimate function of the governmental police power to protect the health and safety of all students who are compelled by law to attend school. In order to fall within this theory, however, the benefit must reach children attending public as well as private schools. Note, Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Tilton v....