Student Members of Playcrafters v. Board of Ed. of Teaneck Tp.

• Decision Date: 19 January 1981
• Citation: 177 N.J.Super. 66,424 A.2d 1192
• Parties: STUDENT MEMBERS OF the PLAYCRAFTERS, an Organization of Teaneck High School, Richard Strean, an infant by his Guardian ad Litem, Marcia Strean, Jeremy Feigelson, an infant by his Guardian ad Litem, Miriam C. Feigelson, Plaintiffs- Appellants and Cross-Respondents, v. The BOARD OF EDUCATION OF the TOWNSHIP OF TEANECK, Aubrey Sher, Superintendent of Schools of the Township of Teaneck, and James Delaney, Principal of Teaneck High School, and New Jersey State Commissioner of Education, Fred G. Burke, Defendants-Respondents and Cross-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 66

177 N.J.Super. 66

424 A.2d 1192

STUDENT MEMBERS OF the PLAYCRAFTERS, an Organization of Teaneck High School, Richard Strean, an infant by his Guardian ad Litem, Marcia Strean, Jeremy Feigelson, an infant by his Guardian ad Litem, Miriam C. Feigelson Plaintiffs- Appellants and Cross-Respondents, v. The BOARD OF EDUCATION OF the TOWNSHIP OF TEANECK, Aubrey Sher, Superintendent of Schools of the Township of Teaneck and James Delaney, Principal of Teaneck High School, and New Jersey State Commissioner of Education, Fred G. Burke Defendants-Respondents and Cross-Appellants.

Superior Court of New Jersey, Appellate Division.

Submitted Dec. 9, 1980.

Decided Jan. 19, 1981.

John L. Weichsel, Hackensack, for plaintiffs-appellants and cross-respondents (Stephen Nagler, ACLU of New Jersey, South Orange, of counsel).

Greenwood, Weiss & Shain, East Orange, for defendants-respondents and cross-appellants Board of Education of the Township of Teaneck and James Delaney, Principal of Teaneck High School (Robert H. Greenwood, East Orange, on brief).

John J. Degnan, Atty. Gen., for defendant-respondent and cross-appellant New Jersey State Commissioner of Education, Fred G. Burke (Stephen Skillman, Asst. Atty. Gen., of counsel; Mary Ann Burgess, Deputy Atty. Gen., on brief).

Daniel D. Chazin, Teaneck, submitted a brief on behalf of amicus curiae The National Jewish Commission on Law and Public Affairs (Martin B. Cowan, New York City, of the New York bar, of counsel).

Victoria B. Eiger, Morristown, submitted a brief on behalf of amicus curiae The American Jewish Congress (Marc D. Stern, New York City, of the New York bar, of counsel).

Before Judges MICHELS, ARD and FURMAN.

The opinion of the court was delivered by

MICHELS, P. J. A. D.

This is an appeal from a judgment of the Chancery Division which found that the "Policy on School Activities," adopted by defendant Board of Education of the Township of Teaneck (Board) was facially constitutional, yet unconstitutional as applied. At issue is whether the Board's policy, which effectively bans most extracurricular scholastic activities during times of traditional religious worship, namely Friday evenings, Saturday days and Sunday mornings, violates the Establishment Clauses of the Federal and State Constitutions. ¹

The policy was adopted by the Board in an effort to implement State statutory and regulatory enactments which had, as their objective, the elimination of all discriminatory practices in the New Jersey public schools. In 1974, our Legislature enacted N.J.S.A. 18A:36-20 which provides that:

No pupil in a public school in this State shall be discriminated against in admission to, or in obtaining any advantages, privileges or courses of study of the school by reason of race, color, creed, sex or national origin.

The New Jersey State Board of Education (State Board) developed and adopted regulations to implement the legislative mandate set forth in N.J.S.A. 18A:36-20. These regulations require each local school district to develop and adopt a policy of equal educational opportunity and two programs of affirmative action, the first relative to school and classroom practices and the second concerning employment and contract practices. N.J.A.C. 6:4-1.1 et seq., (effective, May 20, 1975). N.J.A.C. 6:4-1.5(a) specifically provides:

No student shall be denied access to or benefit from any educational program or activity solely on the basis of race, color, creed, religion, sex, ancestry, national origin or social or economic status.

N.J.A.C. 6:4-1.2 defines "educational activities and programs" as "all activities and programs conducted or sponsored by the school either during the school day or after regular school hours."

On March 9, 1977, the Board, pursuant to N.J.S.A. 18A:36-20 and N.J.A.C. 6:4-1.1 et seq., adopted a "Policy on School Activities." The Board, observing that the "scheduling of programs or activities on the Sabbath may result in a denial of equal opportunity based upon religion," passed a resolution which provided:

1. To the maximum feasible extent, school activities and programs will not be scheduled on a Friday night, Saturday day, or Sunday morning.

2. A reasonable accommodation to requests for an exception will be made on an individual program or activity basis. Such requests setting forth reasons for exceptions must be submitted, in writing, by the principal to the Superintendent of Schools who will decide on the matter.

Thereafter, on April 21, 1977, the Board modified its policy. The Board directed the Superintendent of Schools "to schedule all school activities to the maximum feasible extent" to "increase participation (in school activities) among all students." The Board also appointed an advisory committee to help develop guidelines to be considered by the Superintendent in the scheduling of after school activities. The objective of these guidelines was:

... to assure that all students will have equal opportunity to participate in Board of Education-sponsored after-school activities. It is the responsibility of the school principal in scheduling after-school activities to be sensitive to the needs of the pluralistic population making up the Teaneck Public School System.

This matter arises as a result of the application of the Board's policy to the proposed scheduling of the play "Don't Drink the Water" during the Fall semester of the 1978-1979 school year. The play which was to be performed by The Playcrafters, the Teaneck High school drama club, was originally scheduled for Thursday, Friday and Saturday evenings, if double-cast. The faculty advisor for The Playcrafters was thereafter informed that the play could not be performed on Friday evening.

On November 14, 1978, plaintiffs instituted this action by a verified complaint and order to show cause, seeking to enjoin the implementation of the Board's policy so that the Fall play could be performed on Friday evening, November 17, 1978. The trial court enjoined the implementation of the policy, and consequently, the play was performed as scheduled. Thereafter, respondents Board, Aubrey Scher, Superintendent of Schools of the Township of Teaneck and James Delaney, Principal of Teaneck High School, filed an answer and moved to dismiss the action.

The trial court directed all parties to submit copies of their pleadings, briefs and other materials to respondent Fred G. Burke, New Jersey State Commissioner of Education (Commissioner) so that he could determine whether to participate in the matter as either a party defendant or as amicus curiae. After reviewing the submitted material, the Commissioner appeared in the case for the limited purpose of advancing the jurisdictional argument that the action should be dismissed and the parties should proceed before him as the controversy arose under the State's school laws. Thereupon, the trial court directed all parties to show cause why an order should not be entered (1) either joining the Commissioner as a party or authorizing him to appear amicus curiae ; (2) staying the present action pending an appeal to the Commissioner of those issues within his jurisdiction, and (3) determining which issues are properly cognizable before the Chancery Division and which are within the jurisdiction of the Commissioner. On the return date of the order to show cause, the trial court (1) denied the Commissioner's motion to dismiss the complaint for failure to exhaust administrative remedies; (2) joined the Commissioner as a party defendant, and (3) ordered the following educational issues be referred to the Commissioner for resolution based upon the record developed before it:

(1) whether the Policy on School Activities, adopted by the Teaneck Board of Education, represents a proper implementation of N.J.S.A. 18A:36-20 and N.J.A.C. 6:4-1.1 et seq., and

(2) whether the Policy on School Activities, adopted by the Teaneck Board of Education, so restricts the use of school facilities as to preclude the breadth of program offerings and activities necessary to a thorough and efficient system of public education.

The Commissioner, after reviewing the Board's Policy on School Activities, observed:

The Board's obvious purpose for establishing such a policy and guidelines was to avoid imposing upon pupils the difficult choice between participation in a school activity and a Sabbath observance. The record in this matter discloses a continuing sensitivity on the part of the Board to the values of the pluralistic community served by its public schools.

Consequently, the Commissioner found that the policy represented a proper implementation of N.J.S.A. 18A:36-20 and N.J.A.C. 6:4-1.1 et seq. The Commissioner also found that the Board's Policy did not curtail the breadth of extracurricular activities included in its total program and, therefore, did not prevent the Board from providing the pupils of Teaneck with a thorough and efficient system of education. Finally, the Commissioner reviewed the application of the Board's policy with regard to the scheduled Fall play, and concluded that:

... the Board erred in the particular instance of the Fall play, and should have permitted the performance on the originally scheduled Thursday, Friday and Saturday evenings. This is so, because the casting of the play was arranged to avoid any conflict for participating pupils. Since this was done, and no pupil was denied an opportunity to participate, the play should have been performed as approved by the Principal and the Superintendent. The Commissioner finds that the Board abused its discretion in the implementation of its policy in this particular instance.

Notwithstanding the Commissioner's views, the trial court found that the Board's policy saving pupils from having to choose between religion and extracurricular activities (1) did not serve a secular purpose; (2) had, as its primary effect, the advancement of religion, and (3) involved excessive entanglement by...