Resnick v. East Brunswick Tp. Bd. of Ed.
| Decision Date | 11 July 1978 |
| Citation | 389 A.2d 944,77 N.J. 88 |
| Parties | Abraham RESNICK, Plaintiff-Respondent, v. EAST BRUNSWICK TOWNSHIP BOARD OF EDUCATION, Defendant-Appellant, and Reform Temple of East Brunswick, East Brunswick Baptist Church, Nativity Evangelical Lutheran Church of East Brunswick, Defendants, and New Jersey Council of Churches, Intervenors. Abraham RESNICK, Plaintiff-Respondent, v. REFORM TEMPLE OF EAST BRUNSWICK, Defendant-Appellant, and East Brunswick Township Board of Education, East Brunswick Baptist Church, Nativity Evangelical Lutheran Church of East Brunswick, Defendants, and New Jersey Council of Churches, Intervenors. |
| Court | New Jersey Supreme Court |
David B. Rubin, New Brunswick, for appellant East Brunswick Tp. Bd. of Ed. (Rubin & Lerner, New Brunswick, attorneys; Frank J. Rubin, New Brunswick, on the brief).
Samuel H. Davis, Edison, for appellant Reform Temple of East Brunswick (Dubowsky & Davis, Edison, attorneys).
William J. Brennan, III, Princeton, for intervenor-appellant (Smith, Stratton, Wise & Heher, Princeton attorneys; William J. Brennan and Ann Reicheldfer, Princeton, on the brief).
Sanford Rader, Perth Amboy, argued the cause for respondent (Kovacs, Anderson, Horowitz & Rader, Perth Amboy, attorneys).
The opinion of the court was delivered by
The relationship of church and state has become one of the most sensitive areas in the law. Permitting religious observances to take place on public school property raises important and vexing constitutional issues. To some persons, use of school premises by any group necessarily carries with it the appearance of government approval of that body and its activities. Thus, whenever an issue involving the use of school property for religious purposes arises, our inquiry must be particularly searching. The specific controversy in this appeal concerns the extent to which public school facilities may be used for religious instruction and services when they are not being used for regular educational purposes.
Since 1962 defendant East Brunswick Township School Board has allowed a number of local groups to use its school facilities during non-school hours. The lessees of school premises have included various religious groups as well as other nonprofit social, civic, recreational and charitable groups. The diversity and plenitude of the organizations using the school are reflective of Board policy, related in its "Rules and Regulations Governing Use of East Brunswick School Facilities."
I. Statement of Philosophy
It is the feeling of this Board of Education that each of the East Brunswick Public Schools, build (Sic ) and maintained through the expenditure of public funds, should be utilized to the fullest extent possible by East Brunswick community groups and agencies. Provisions for the control and protection of these facilities as hereafter established emanate from the Board's position as the responsible body for the upkeep and maintenance of such facilities.
A rental is assessed which approximates the cost of janitorial services. 1 Where a group is using the facilities for fund raising purposes or if admission is charged, a substantially higher rental is assessed in accordance with a published rental schedule. 2 The Board's policy provides that applications for use of the school premises be made to the principal of the school involved. Groups such as religious organizations which use the facilities on a steady basis for an indeterminate period make annual reapplications. This was done by all of the religious organizations discussed herein.
Starting in 1969 the East Brunswick Baptist Church had rented an all-purpose room in an elementary school for religious services and ten classrooms for religious instruction on Sundays. The all-purpose room was also rented for Wednesday evening prayer meetings. Bibles, hymnals and a wooden pulpit with a cross were stored in a closet off the all-purpose room, along with school recreational equipment. The Church owned a five-acre building site in the township and as of the trial date had retained an architect, an engineer and had applied for site plan approval to the township planning board. At the time of oral argument before this Court, the East Brunswick Baptist Church no longer used the school. 3
Nativity Evangelical Lutheran Church began renting facilities in an elementary school in September 1968. It used the school for religious instruction on Sundays, occupying the all-purpose room and some ten classrooms. Sunday school literature and materials were locked in a cabinet. The Church has a separate building for worship. At the time of the trial the Church had employed an architect to plan an addition to its building for purposes of having classrooms for religious education. At present, the Lutheran Church is not making use of school facilities.
Since March 1973 the Reform Temple of East Brunswick has rented most of an elementary school building for services and instruction for five hours on Sundays. It also rents the gymnasium for religious services and social gatherings on Friday evenings and five classrooms for Hebrew language instruction for children on Tuesday and Thursday evenings. A few religious artifacts were stored in the schools. The Reform Temple had an option to purchase a building site at the time of the trial and had also retained an architect. However, the building has not been completed, and use of the school continued as of the date of oral argument. 4 Upon learning of the use of East Brunswick schools for religious purposes, plaintiff Abraham Resnick complained to the Board of Education. When the Board did not take any action to prevent the religious groups from using the schools, Resnick filed a complaint in the Chancery Division in October 1974. He alleged that use of the schools by religious groups violated N.J.S.A. 18A:20-34, the statute governing the operation of public school facilities, and the federal and state constitutions. All three religious groups intervened as third party defendants.
The trial judge, in an opinion reported at 135 N.J.Super. 257, 343 A.2d 127 (Ch.Div.1975), held that N.J.S.A. 18A:20-34 neither contemplated nor permitted the use of public schools by religious groups for worship services but that Sunday School and Hebrew instruction were within the purview of the statute's permitted uses. However, the judge went on to hold that even a use limited to education involved some small outlay of taxpayer funds for utilities and thus violated the prohibition against public expenditures in support of religion found in N.J.Const. (1947), Art. I, par. 3. Nevertheless, he indicated that a rent schedule based on actual costs of utilities, administrative and janitorial services would cure that state constitutional difficulty.
The judge also held that the use of schools for religious worship and instruction violated the First and Fourteenth Amendments of the United States Constitution. He alluded to the significant financial benefit provided to the religious groups which used schools indefinitely and which were thus enabled to avoid making expenditures for other facilities at commercial rental rates or for constructing their own buildings. The judge also found administrative entanglement in record keeping and scheduling by employees of the Board, and political entanglement in subjecting defendant Board's members to pressures by those in favor of and those opposed to religious use of public school facilities. The court also found excessive entanglement in the storage of religious artifacts and books in school buildings where they were accessible to children during school hours.
The court limited its decision by indicating that its ruling did not deal with the rental of public school facilities to religious groups at rental rates approximating that which would be charged on the open market for comparable private facilities. Nor did it cover temporary use of public school facilities during emergencies such as after a fire or flood. The Board was given 45 days in which to submit a proposal for continued use of the facilities for a fixed time in order to allow the defendant religious organizations to secure other accommodations. The Board's proposal as slightly modified was included in the court's Final Judgment and Order of December 1, 1975. In essence, the religious groups 5 were permitted to continue using public school facilities for a period of one year at a rate approximating the cost paid by the Board for the rental of classroom space in a local church building which was used to handle pupil overflow. No religious artifacts were to be stored in the schools.
Both the Reform Temple and the Board appealed. Upon consolidating these appeals the Appellate Division heard arguments and affirmed "substantially for the same reasons" expressed by the trial court. 144 N.J.Super. 474, 366 A.2d 345 (App.Div.1976). The Board and Reform Temple appealed as of right pursuant to R. 2:2-1. Plaintiff cross-appeals. Of the original defendants, only the Board and Reform Temple appeared before this Court. We granted the New Jersey Council of Churches' petition to intervene as a party defendant on appeal.
Pursuant to N.J.S.A. 18A:20-34, boards of education are permitted to adopt rules by which school properties may be used when not in use for school purposes. That statute provides in pertinent part:
The board of education of any district may, pursuant to rules adopted by it, permit the use of any schoolhouse and rooms therein, and the grounds and other property of the district, when not in use for school purposes, for any of the following purposes:
a. The assembly of persons for the purpose of giving and receiving instruction in any branch of education, learning, or the arts, including the science of agriculture, horticulture, and floriculture;
c. The holding of such social, civic, and recreational meetings and...
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