West Morris Regional Bd. of Ed. v. Sills

• Decision Date: 25 June 1971
• Citation: 279 A.2d 609,58 N.J. 464
• Parties: WEST MORRIS REGIONAL BOARD OF EDUCATION, et al., Plaintiffs-Respondents, Cross- Appellants, v. Arthur J. SILLS, et al., Defendants-Appellants, Cross-Respondents.
• Court: New Jersey Supreme Court

Page 464

58 N.J. 464

279 A.2d 609

WEST MORRIS REGIONAL BOARD OF EDUCATION, et al., Plaintiffs-Respondents, Cross- Appellants, v. Arthur J. SILLS, et al., Defendants-Appellants, Cross-Respondents.

Supreme Court of New Jersey.

Argued April 26, 1971.

Decided June 25, 1971.

Virginia Long Annich, Deputy Atty. Gen., for defendants-appellants, cross-respondents (George F. Kugler, Jr., Atty. Gen., attorney).

Garret A. Hobart, IV, Morristown, for plaintiffs-respondents, cross-appellants (Schenck, Price, Smith & King, Morristown, attorneys).

Arnold H. Chait, Morristown, for defendant-appellant, cross-respondent The Board of Education of The Township of Morris (Vogel, Chait & Wacks, Morristown, attorneys).

The opinion of the Court was delivered by

WEINTRAUB, C.J.

Plaintiffs sought a declaration that a statute providing for free transportation of children to private schools was unconstitutional. The principal attack was twofold: (1) that the statute violated the establishment clause of the church-state provision of the First Amendment to the Constitution of the United States, and (2) that the statute discriminated arbitrarily among pupils attending private schools, in violation of the equal protection clause of the Fourteenth Amendment. The trial court found against plaintiffs as to the establishment issue, but for them with respect to their equal protection complaint. The trial court also placed its decision on two additional grounds which we find untenable and which require but passing mention. ¹ West Morris Regional Board of Education, Morris County v. Sills, 110 N.J.Super. 234, 265 A.2d 162 (Ch.Div.1970).

Defendants appeal and plaintiffs cross-appeal. The cross-appeal seeks no modification of the judgment itself; rather the object is to place the result upon the more pervasive thesis that the church-state provision bars free public transportation to parochial schools. We certified the matter before argument in the Appellate Division.

The statute under attack is N.J.S.A. 18A:39--1. ² It deals with pupils residing 'remote' from any schoolhouse and authorizes the local board of education to make rules and contracts for their transportation, not only to public schools, but also to private schools, subject, however, to certain exceptions. The equal-protection argument arises out of those exceptions. The church-state issue arises out of the fact that the required transportation includes transportation to parochial schools.

The statute has a relevant history. In an earlier form, it was upheld against the charge that it violated the establishment clause. Everson v. Board of Ecucation of Ewing Township, 133 N.J.L. 350, 44 A.2d 333 (E. & A.1945), affirmed, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The statute then required that when a school district provides transportation for public school children living remote from any schoolhouse, it must also supply transportation 'from any point in such established school route to any other point in such established school route' to school children residing in such school district 'in going to and from school other than a public school, except such school as is operated for profit in whole or in part.' R.S. 18:14--8, as amended by L.1941, c. 191. The local board of education there provided for transportation by reimbursing the parent of public school pupils for fares paid a common carrier. Obedient to the statute, the board also provided for reimbursement to parents of students who used the same bus routes in attending private schools, all of which were operated by the Roman Catholic Church. The statute was upheld in Everson by a divided vote in our State court and by a vote of 5 to 4 in the United States Supreme Court.

After Everson, the subject was dealt with expressly in our State Constitution of 1947, to the end that the establishment clause of that Constitution, Art. I, 4, could not be construed to bar transportation for private school pupils. 1 Constitutional Convention of 1947, Convention Proceedings, pp. 704--726. The Constitution of 1947 accordingly provides, Art. VIII, § 4, 3:

The Legislature may, within reasonable limitations as to distance to be prescribed, provide for the transportation of children within the ages of five to eighteen years inclusive to and from any school.

We digress for a moment to deal with the question whether Art. VIII, § 4, 3, quoted immediately above, interdicts the statutory scheme here involved. As we mentioned in footnote 1, Supra, the trial court found that the statute violated this provision. 110 N.J.Super. at 251 and 254, 265 A.2d 162. The thesis of that finding is that the phrase, 'within reasonable limitations as to distance to be prescribed,' sets forth the exclusive basis upon which the Legislature may differentiate or classify students. But the purpose of this constitutional provision being to make it clear that the Legislature may (but need not) transport students to private schools, the quoted phrase seems clearly to be a restriction upon the amount of transportation which may be furnished rather than a prescription of a single basis upon which the beneficiaries of a transportation program may be determined. Hence this section of the Constitution does not bear upon the issue in this case.

Returning to the history of the statute, we note that in Fox v. Board of Education of West Milford Township, 93 N.J.Super. 544, 226 A.2d 471 (Law Div.1967), it was held that the statute did not authorize transportation to nonpublic school children other than along established public school routes. Thereupon, the Legislature adopted L.1967, c. 74, which eliminated the 'established school route' provision and directed that free transportation be given children attending a nonpublic school 'not more than 20 miles from the residence of the pupil.' ³ The statute was further amended by L.1968, c. 29, to place a limit of $150 upon the sum to be paid for the transportation of a student attending a nonpublic school.

The statute as it presently stands was sustained in McCanna v. Sills, 103 N.J.Super. 480, 247 A.2d 691 (Ch.Div.1968), against a charge that it violated the establishment clause of the First Amendment, and was sustained in Board of Education of Borough of Woodbury Heights v. Gateway Regional High School, 104 N.J.Super. 76, 248 A.2d 564 (Law. Div.1968), against a charge that the statute discriminated against pupils in public schools in the circumstances of that case. Neither decision was appealed.

I.

As we have said, the trial court rejected plaintiffs' claim that the statute violates the First Amendment ban of any 'law respecting an establishment of religion.' We agree with the trial court's treatment of that issue. The statute, in all respects relevant to that issue, is as it was when it was upheld in Everson. ⁴ It remains a measure to aid the student rather than the school he attends; its purpose and primary effect are not to advance religion.

Nor does it appear that the Supreme Court of the United States has withdrawn from the majority position in Everson. On the contrary, Everson was reaffirmed in Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), where the majority upheld a New York statute requiring local public school authorities to lend textbooks without charge to students attending public and private schools, including parochial schools.

II.

We turn to the question whether the statute violates the equal protection clause of the Fourteenth Amendment. The trial court succinctly summarized plaintiffs' claim that the statute fails to include all the private school children who plaintiffs say must be included, 110 N.J.Super. at 241, 265 A.2d at 166:

Plaintiffs assert that the operation of N.J.S.A. 18A:39--1 violates the Equal Protection Clause by reason of 'under-inclusion.' Plaintiffs cite six categories of school children who are excluded from transportation by reason of the operation of the act, to wit: (1) New Jersey residents attending out-of-state schools; (2) students outside the 20-mile radius; (3) pupils attending profit-making private schools; (4) pupils living in districts which only transport handicapped children pursuant to N.J.S.A. 18A:46--23; (5) students living in districts which only provide transportation to children attending public vocational schools, and (6) private or parochial non-profit school pupils residing in a district which provides no transportation to its public schools. Plaintiffs maintain that, by reason of these exclusions, the challenged act denies equal protection to pupils in the excluded categories.

The trial court rejected the first five criticisms. It concluded, however, that the sixth was correct, and upon that basis held that the statute is invalid and hence that transportation may not be provided any private school student. We will deal first with the equal protection charge the trial court upheld and then with the equal protection charges the trial court rejected.

The statute must be considered in the context of other legislation. Attendance at school is mandated with respect to children between the ages of 6 and 16, N.J.S.A. 18A:38--25. It having been held to be the constitutional right of a parent to choose to send the child to a private school, Pierce v. Society of Sisters, etc., 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), a statute, N.J.S.A. 18A:38--25, permits a parent to seek equivalent instruction elsewhere. Thus children, whether attending a public or a private school, are pursuing a process of education mandated for them, at least between the ages of 6 and 16.

Although N.J.S.A. 18A:39--1, the statute here challenged, seems on its face to leave it to each school district to decide whether to transport children living 'remote' from a schoolhouse, defendants say the school district is obliged to do so by reason of still another statute. ⁵ Defendants refer to N.J.S.A. 18A:33--1, which imposes...