Resnick v. East Brunswick Tp. Bd. of Ed.

• Decision Date: 26 June 1975
• Citation: 343 A.2d 127,135 N.J.Super. 257
• Parties: Abraham RESNICK, Plaintiff, v. EAST BRUNSWICK TOWNSHIP BOARD OF EDUCATION et al., Defendants.
• Court: New Jersey Superior Court

Page 257

135 N.J.Super. 257

343 A.2d 127

Abraham RESNICK, Plaintiff, v. EAST BRUNSWICK TOWNSHIP BOARD OF EDUCATION et al., Defendants.

Superior Court of New Jersey,

Chancery Division.

June 26, 1975.

Sanford Rader, Perth Amboy, for plaintiff (Kovacs, Anderson, Horowitz & Rader, Perth Amboy, attorneys).

Frank J. Rubin, New Brunswick, for defendant East Brunswick, Township Bd. of Ed. (Rubin & Lerner, New Brunswick, attorneys).

Samuel H. Davis, Edison, and Ira S. Novak, Newark, for defendant Reform Temple of East Brunswick (Dubowsky & David, Edison, and Gross, Novak & Klein, Newark, attorneys).

Seymour Gelzer, East Brunswick, for defendant East Brunswick Baptist Church (Iaria & Gelzer, East Brunswick, attorneys).

Stephen R. Philpitt, New Brunswick, for defendant Nativity Evangelical Lutheran Church of East Brunswick.

FURMAN, J.S.C.

Plaintiff citizen and taxpayer seeks to enjoin use of public schools within his municipality for religious services and religious education. He charges violations of the governing statute (N.J.S.A. 18A:20--34) and of the United States and New Jersey Constitutions (U.S.Const., Amend. I and Amend. XIV; N.J.Const. (1947), Art. I, par. 3 and par. 4).

The facts established at trial are as follows. Since 1962 defendant board of education has leased school facilities at hours not interfering with the school curriculum and activities to various religious groups, as well as to other nonprofit social, civic, recreational and charitable groups. A rental is assessed approximating the cost of janitorial services, except that if the meeting is for fund-raising purposes or admission is charged, a substantially higher rental is assessed in accordance with a rental schedule. By way of illustration, a religious group would pay $125 for four hours use of an all-purpose room and ten classrooms under the rental schedule, only $18 at present towards the cost of janitorial services.

Defendant East Brunswick Baptist Church rents an all-purpose room in an elementary school for religious services and ten classrooms for religious instruction on Sundays, and the all-purpose room for a prayer meeting on Wednesday evenings. Bibles, hymnals and a wooden pulpit with a cross are stored in a closet off the all-purpose room, together with school recreational equipment. The East Brunswick Baptist Church owns a five-acre building site in the township, has retained an architect and an engineer and has applied for site plan approval to the township planning board. Its initial rental of public school facilities was in October 1968. Its application for for an indefinite period of time. Defendant board of education has approved yearly renewals.

Defendant Nativity Evangelical Lutheran Church limits its use of the facilities of a second elementary school to 1 1/2 hours of religious instruction in ten classrooms on Sundays, with the all-purpose room as a headquarters. Sunday School literature and materials are locked in a cabinet. The Nativity Evangelical Lutheran Church has its own church in the township for religious services. It has retained an architect, who is working on plans for a religious education building. Its initial rental of public school facilities was in September 1968. Its application was for an indefinite period of time. Defendant board has approved yearly renewals.

Defendant Reform Temple of East Brunswick rents most of a third elementary school building for religious services and religious instruction for five hours on Sundays, its gymnasium for religious services and a social gathering on Friday evenings, and five classrooms for Hebrew language instruction, limited to children of the congregation, to Tuesday and Thursday evenings. Some religious artifacts are stored at the school. The Reform Temple has a building site in the township under option to purchase and has retained an architect. Its initial rental of public school facilities was in March 1973. Its application was for an indefinite period of time. Defendant board has approved yearly renewals.

Defendant board is limited in its exercise of powers to those granted expressly or by necessary or fair implication in state legislation. Botkin v. Westwood, 52 N.J.Super. 416, 427, 145 A.2d 618 (App.Div.1958), app. dism. 28 N.J. 218, 146 A.2d 121 (1958). N.J.S.A. 18A:20--34 authorizes boards of education to permit use of school facilities, when not in use for school purposes, for:

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 entertainments and such other purposes as may be approved by the board.

Purportedly pursuant to this authorization defendant board adopted rules and regulations permitting use of its facilities by 'any East Brunswick organization which is non-profit in nature,' including, as implemented, religious bodies without preference or distinction among them. No judicial decision is cited in support, and only one administrative ruling, McGuire Air Force Base v. North Hanover Tp. Bd. of Ed., S.L.D. 62 (1963), directing the North Hanover board to permit use of public school facilities owned by the Federal Government, in the absence of any other suitable accommodation, for weekend religious and moral training of dependent children of United States military personnel, an obligation of the Commander of the base to provide by Air Force regulation. In openings allusions were made to a widespread practice in the State of religious use of school buildings during nonschool hours, but the proofs dwindled to one such current use and two such former uses.

Religious uses are not specified in N.J.S.A. 18A:20--34(c), although constitutional and legislative enumeration of 'religion' or related terms is commonplace. E.g., N.J.Const. (1947), Art. VIII, § 1, par. 2; N.J.S.A. 10:1--3; N.J.S.A. 15:14--6; N.J.S.A. 18A:38--5.1; N.J.S.A. 18A:72A--3; N.J.S.A. 39:4--139; N.J.S.A. 45:24--7.

To encompass religious meetings and purposes within 'social, civic and recreational' in N.J.S.A. 18A:20--34(c) overlooks the Legislature's meticulous listing of 'religion' or 'creed' in other statutes. Expressio unius est exclusio alterius is applicable as a rule of construction. The phrase 'such other purposes' in (c) is not an Imprimatur for purposes other than 'social, civic and recreational.' The contention that N.J.S.A. 18A:20--34(c) authorizes religious services and education in public school buildings along with 'social, civic and recreational' uses must be rejected.

As to N.J.S.A. 18A:20--34(a) a religious service is not 'instruction.' Rather it is an assemblage of persons offering worship and homage to divinity according to established exercises and rituals. Defendant board lacks statutory authorization to rent its facilities for religious services. Only the Sunday School and Hebrew language instruction fit within the sanction in (a) of 'instruction in any branch of education, learning or the arts,' which must be construed to embrace religious literature and dogma. Cf. Lewis v. New York City Bd. of Ed., 157 Misc. 520, 285 N.Y.S. 164, 169 (Sup.Ct.1935).

The constitutional issue must therefore be met whether indefinite use of public school facilities for Sunday School and Hebrew language instruction by organized religious bodies, at rentals defraying only the cost of janitorial services, is such governmental assistance to religion or such entanglement between government and religion as to offend the United States and New Jersey Constitutions.

The United States Constitution, First Amendment, provides: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ..' That amendment is applicable to the States under the Fourteenth Amendment. Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948); Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), reh. den. 330 U.S. 855, 67 S.Ct. 962, 91 L.Ed. 1297 (1947).

The New Jersey Constitution provides in Art. I, par. 3:

No person shall be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience; nor under any pretense whatever be compelled to attend any place of worship contrary to his faith and judgment; nor shall any person be obliged to pay tithes, taxes or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform.

The New Jersey Constitution provides in Art. I, par. 4: 'There shall be no establishment of one religious sect in preference to another; no religious or racial test shall be required as a qualification for any office or public trust.'

Chief Justice Vanderbilt reviewed the history of the separation of church and state and the prohibition against the establishment of religion in Tudor v. Rutherford Bd. of Ed., 14 N.J. 31, 100 A.2d 857 (1953), Cert. den. Gideons International v. Tudor, 348 U.S. 816, 75 S.Ct. 25, 9 L.Ed. 644 (1954) holding unconstitutional the distribution of King James version bibles in the public schools to students voluntarily accepting them.

Illinois ex rel. McCollum v. Board of Education, supra, struck down as unconstitutional a public school program of released time during the school day for religious education classes conducted by sectarian teachers in public school buildings. The rationale was that the program had a predominant purpose to benefit religious and thus, although without preference or discrimination, infringed the First and Fourteenth Amendments.

Unquestionably instruction of the young in the beliefs, writings and...