State ex rel. Warren v. Nusbaum, S

• Decision Date: 07 July 1972
• Docket Number: No. S,S
• Citation: 198 N.W.2d 650,55 Wis.2d 316
• Parties: STATE ex rel. Robert W. WARREN, Atty. Gen., Petitioner, v. Joe E. NUSBAUM, Secy., Wis. Dept. of Administration, Respondent. tate 226.
• Court: Wisconsin Supreme Court

Page 650

198 N.W.2d 650

55 Wis.2d 316

STATE ex rel. Robert W. WARREN, Atty. Gen., Petitioner, v. Joe E. NUSBAUM, Secy., Wis. Dept. of Administration, Respondent.

No. State 226.

Supreme Court of Wisconsin.

July 7, 1972.

Chapter 44, Laws of 1971, creates sec. 39.36, Stats., directing the state to contract with 'a private nonprofit higher educational institution of this state' for the provision of dental education services, paying $3,500 annually for each resident of Wisconsin enrolled as a full-time undergraduate student in dentistry.

The statute's statement of legislative intent declares that it is in the public interest, advantage and welfare to assure the continued availability of dental education in Wisconsin. The only accredited dental school in Wisconsin is the School of Dentistry of Marquette University and such School of Dentistry had a deficit of $62,611 in 1969--70. The declaration of intent states that the continued existence of a dental school within the state is important in the maintenance and improvement both as to numbers and quality of service of dental personnel in the state.

As the statute authorizes, on December 23, 1971, a contract was entered into between Marquette University and the State of Wisconsin Higher Educational Aids Board. Under the contract, Marquette University agreed to continue offering 'courses and programs in dentistry conformably to academic and professional standards.' The state agreed to pay $3,500 for each resident of Wisconsin who is regularly enrolled as a full-time undergraduate student in dentistry therein.

Formal demand was made upon Joe E. Nusbaum, Secretary of the Wisconsin Department of Administration, for $3,500 to be paid to Marquette University under the contract. Payment was refused, the department secretary stating that the law was unconstitutional. A detailed statement of facts has been agreed to by the parties as Appendix A of the original petition for leave to commence the original action as provided in sec. 5 of Ch. 44, Laws of 1971, the statute challenged.

Robert W. Warren, Atty. Gen., Allan P. Hubbard, Asst. Atty. Gen., Madison, for petition.

Charne, Glassner, Tehan, Clancy & Taitelman, Milwaukee, for respondent.

Marshall E. Fredrich, Milwaukee (Franklin C. Salisbury, Washington, D.C., of counsel), for Americans United for Sep. of Church & State, Milw. Chapter of Americans United & P.O.P.S., amicus curiae.

Foley & Lardner, Milwaukee, for Marquette Univ., amicus curiae.

Michael, Best & Friedrich, Frank J. Pelisek, John K. MacIver, Milwaukee, for Wisconsin State Dental Society, amicus curiae.

ROBERT W. HANSEN, Justice.

The statute challenged authorizes and the contract establishes a contractual relationship between the state and a church-related university for the providing of dental education in the state's only dental school. Does the relationship created violate either the First Amendment to the United States Constitution, ¹ or Article 1 of the Wisconsin Constitution ² prohibiting state establishment of religion and state interference with free exercise of religion?

CONTRACT FOR SERVICES.

The relationship between the state and the university, authorized by the statute and established by the contract, is that of parties to a bilateral contract. The university agrees to provide dental educational facilities and services. The state agrees to make a contribution to the cost of educating each Wisconsin resident provided dentistry education. Wee see nothing inappropriate in such contractual approach. The state may contract for the procurement of supplies or services required for the carrying on of its public purposes. ³ It may purchase from or even aid a religious or church-related institution in securing goods or services for a public purpose. ⁴ However, when it does do, the relationship existing must not invade or violate federal and state constitutional provisions relating to establishment and free exercise of religion.

In a recent United States Supreme Court case, the high court dealt with a statute that authorized the state superintendent of schools to 'purchase' certain specified 'secular educational services' from nonpublic schools. ⁵ Under the 'contracts' authorized by the statute, the state in that case directly reimbursed nonpublic schools for their actual expenditures for teachers' salaries, textbooks and instructional materials. The high court made no mention of anything improper in the contract approach, but proceeded to discuss and test the relationship established exactly as if it had been a grant or state financial aid provided without a contract being entered into. ⁶ We will do the same, beginning with the issues of applicability of the First Amendment of the United States Constitution to the statute and contract.

THE FIRST AMENDMENT.

There are numerous United States Supreme Court decisions dealing with the 'establishment' and 'free exercise' clauses of the First Amendment. Nothing the internal tension in the First Amendment between the two clauses, these decisions have sought '. . . to define the boundaries of the neutral area between these two provisions within which the legislature may legitimately act.' ⁷ We are bound by the results and interpretations given the First Amendment in these high court decisions. Ours not to reason why; ours but to review and apply. That limited assignment is not made easier by apparent shifts in emphasis and differences between majority, plurality, concurring and dissenting opinions. ⁸ However, reading two decisions announced on the same day, ⁹ leads to the conclusion that the majority of the present court, in Tilton, would have us ask and answer the following four questions:

1. Does the Act (the law challenged) reflect a secular legislative purpose?

2. Is the primary effect of the Act to advance or inhibit religion?

3. Does the administration of the Act foster an excessive governmental entanglement with religion?

4. Does the implementation of the Act inhibit the free exercise of religion? ¹⁰

We would change the order in which the questions are reached, nothing more, by analogizing the guidelines set forth to taking a ship through a harbor entrance to a dock for unloading. The trip can be made but only to a primarly secular port or destination. Two well marked reefs mark the outer harbor entrance. One is the 'establishment' clause of the First Amendment. The other is the 'free exercise' clause. Both must be avoided. Additionally, the ship must make the port entry, almost on automatic pilot, so that constant steering, backing and checking of the course are not needed to stay on course and off the reefs.

SECULAR LEGISLATIVE PURPOSE?

Little time or space will be given to the issue of whether a contract or aid to a dental school for providing dental education serves a valid secular purpose. Not only is the legislative statement of intent to be given great weight, ¹¹ but the very nature of dental education reassures as to the completely secular nature of the teaching of dentistry. There is no Catholic way to pull a tooth. Nor is there a Lutheran or Jewish or Mohammedan way to repair a tooth. Exodontists may disagree as to whether to remove or repair an aching molar, but religious beliefs have nothing to do with the difference of opinion. Likewise, the public interest in assuring the continued availability of dental education and qualified dental personnel in the state is clear. As this court has said of a private medical college, so with aiding or contracting for services with a private dental school. ¹² That other colleges or schools within a university complex may not be similarly insulated against religious indoctrination does not reach, affect or permeate the entirely secular education provided by the dental school here involved. Tilton rejected the concept that religion so permeates the secular education provided by church-related universities that their religious and secular educational functions are in fact inseparable. ¹³ The dental school here is secular in nature, and, on this record, aiding such dental school is an entirely secular and completely valid public purpose.

PRIMARY EFFECT TO ADVANCE?

Now as to the twin reefs. The first such is that the primary effect of the law must not be to advance religion. If the law and the contract were limited to insuring the maintenance of a dental college and the education of Wisconsin residents in dentistry, the ship would come nowhere near the 'establishment' reef. However, the contract between the university and state expressly provides that:

'The Institution (the university) agrees that all amounts received pursuant to this contract shall be used exclusively in support of its operatig costs.' (Emphasis supplied.)

If this is read, as seems entirely reasonable, to require or permit amounts paid under the contract, not used or needed in the dental school for dental education, to be used elsewhere in the university, it runs aground on the 'establishment' reef. It is no answer to contend that the needs of the dental school are so great and the state payments so partial a defrayment that, predictably, no 'surplus' will exist that could or would be used to pay university operating costs other than those of the dental school. It is with the coin of possibilities, not probabilities, that we must deal.

In Tilton, the United States Supreme Court had before it a statute that provided if, for a twenty-year period, the church-related recipients of the federal construction grant violated any of the restrictions as to use of the facilities built with federal money, the government was 'to recover an amount equal to the proportion of the facility's present value which the federal grant bore to its original cost.' ¹⁴ This penalty provision obviously was intended to ensure that the impact of the federal aid would not advance religion. However, the high court found that limitation placed on the use of the building for twenty years was 'inadequate.'...