State ex rel. Warren v. Nusbaum
| Citation | 219 N.W.2d 577,64 Wis.2d 314 |
| Decision Date | 28 June 1974 |
| Docket Number | No. S,S |
| Parties | STATE of Wisconsin ex rel. Robert W. WARREN, Attorney General, Petitioner, and Mindy Linda Panitch, By Aaron E. Goodstein, her Guardian ad Litem, Individually and as a member of a class, Intervening Petitioner, v. Joe E. NUSBAUM, Secretary, State Department of Administration, Respondent. tate 2. |
| Court | United States State Supreme Court of Wisconsin |
Robert W. Warren, Atty. Gen., John-William Calhoun, Asst. Atty. Gen., Madison, for petitioner.
Alan Marcuvitz and Howard B. Schoenfeld, Milwaukee, for intervening petitioner.
Cohen, Grant, Liebmann & Conway, Ltd., Steven I. Cohen, Green Bay, for respondent.
Chapter 89, Laws of 1973, became effective on August 9, 1973. Chapter 89 is a comprehensive act whose purpose is to provide comparable educational benefits without charge to those children with exceptional educational needs. Such, the legislature declared, was the policy of the State of Wisconsin.
'(2) Furthermore, it is the policy of this state to ensure that each child who has exceptional educational needs is provided with the opportunity to receive a special education at public expense suited to his individual needs. To obtain this end, the legislature recognizes the necessity for a flexible program of special education and for frequent reevaluation of the needs, capabilities and progress of a child with exceptional educational needs.
Sec. 1(2) and (3) of Chapter 89, Laws of 1973.
There are approximately 1,188,166 children presently enrolled in the public and private schools in the State of Wisconsin. Of these children, it is estimated that about 10% are handicapped 1 in some fashion. 2 Prior to the enactment of Chapter 89, Laws of 1973, these children were generally without services from those public schools of the State of Wisconsin 3 which were created to provide free public education to the children of Wisconsin.
Under Chapter 89, Laws of 1973, children are to be screened by the school district at the time of their enrollment in order to determine whether the child has any exceptional needs. 4 Additionally, any parent, physician, nurse, social worker or administrator of a social agency who has reasonable cause to believe that a child has exceptional education needs must report such information to the school board. 5 Thereafter the child is examined by a 'multi-disciplinary team' and a recommendation is made as to whether special education 'fitted to the child's individual needs' is in his 'best interest.' 6 If such special education is required, it is the responsibility of the school district to so provide. 7
In order to implement the provisions of Chapter 89, Laws of 1973, and so provide for the needs of those children with exceptional needs, a great investment in services and capital is required. For example, it is estimated that the number of teachers necessary to serve the children with exceptional educational needs would be more than those presently employed. 8 Generally the present public facilities in Wisconsin for the education of handicapped children are inadequate to meet their educational needs. Thus the legislature provided for alternative sources for procuring special educational services if local public services were not available.
Initially, if the school district or the cooperative educational service agency for the school district in which the child resides operates a special educational program, then the child must be placed in that program. 9 If such a program does not exist, then the child must be placed in a public agency of this state offering such an educational program as near as possible to the child's residence. 10 If such a program is not available, and if no such educational program may be procured from a public agency in another state, 11 then the school board may, on approval of the state superintendent, contract with a private educational service so as to provide such a special educational program. 12 The governing board, faculty, student body and teachings of that private special educational service must not, however, be 'chosen or determined by any religious organization for any sectarian purpose.' 13
The reason the provision for use of the special educational programs of private institutions is necessary at least temporarily if the state is to provide equal educational opportunities to handicapped children is obvious and so stipulated. There are not enough programs presently existing. It is this provision, however, that the respondent contends is unconstitutional as violating the First Amendment of the United States Constitution 14 and art. 1, sec. 18 of the Wisconsin Constitution. 15 We must determine whether the provisions of Sec. 115.85(2)(d), Stats. transgresses on either the 'establishment' or 'free exercise' clauses of the First Amendment or whether it can be determined to be in '. . . the boundaries of the neutral area between these two provisions within which the legislature may legitimately act.' Tilton v. Richardson (1971), 403 U.S. 672, 677, 91 S.Ct. 2091, 2095, 29 L.Ed. 790, rehearing denied, in 404 U.S. 874, 92 S.Ct. 25, 30 L.Ed.2d 120. Likewise we must determine whether this legislative enactment violates any provisions of art. 1, sec. 18 of the Wisconsin Constitution.
In an attempt to focus on the three main evils which the '(Establishment Clause was intended to afford protection:) sponsorship, financial support, and active involvement of the sovereign in religious activity' Walz v. Tax Commission (1970), 397 U.S. 664, 668, 90 S.Ct. 1409--1411, 25 L.Ed.2d 697, the United States Supreme Court has promulgated a three-pronged test to be applied in determining the constitutionality of a legislative pronouncement.
Lemon v. Kurtzman (1971), 403 U.S. 602, 612, 613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745.
It is this test that must be applied in determining the constitutionality of Sec. 115.85(2)(d), Stats. Since this action is before this court on the pleadings and stipulation of facts, our decision is necessarily limited thereto. Under the facts we can only determine whether Sec. 115.85(2)(d), Stats. is unconstitutional on its face. While in application thereof, some constitutional infirmity may arise. Such a situation would, however, have to be determined on its individual facts.
'Individual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact possess these characteristics. We cannot, however, strike down an Act of Congress on the basis of a hypothetical 'profile. " Tilton v. Richardson, supra, 403 U.S. at p. 682, 91 S.Ct. at page 2097.
The legislative purpose of Chapter 89, Laws of 1973 is made clear in the legislature's recitation of policy. 16
'. . . (T)o ensure that each child who has exceptional educational needs is provided with the opportunity to receive a special education at public expense suited to his individual needs.' Sec. 1(2) of Chapter 89, Laws of 1973.
Such a legislative declaration of policy is given great weight. 17
The propriety of providing for the special educational needs of handicapped children in the state of Wisconsin goes without question. Such is beyond a doubt the most bona fide of public purposes. However, the propriety of such a legislative purpose does not immunize Chapter 89, Laws of 1973, from further constitutional challenge. If Sec. 115.85(2)(d), Stats. either has a primary effect which advances religion or if it fosters excessive entanglements between church and state, then said section is constitutionally infirm and must be struck down.
The question is whether a contractual arrangement between a local school board and a sectarian special educational service to provide a special educational program to the handicapped children residing in that school district is unconstitutional in that it renders aid and directly subsidizes that sectarian institution in furtherance of its religious purpose.
Initially it must be recognized that the mere contracting for goods or services for a public purpose with a sectarian institution is appropriate state action. 18 It is only when such a contract has a primary effect of advancing religion that the constitutional prohibitions come into effect.
In identifying the primary effect the court in Hunt v. McNair (1973), 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 stated: '. . . whatever may be its initial appeal, the proposition that the Establishment Clause prohibits any program which in some manner aids an institution with a religious affiliation has consistently been rejected.' E.g., Bradfield v. Roberts (1899), 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168; Walz v. Tax Comm. (1970), 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697; Tilton v. Richardson, supra. Stated another way, the court has not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.
Aid may normally be thought of as having the primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise...
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