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419
U.S. 888, 95 S.Ct. 167
U.S.
Supreme Court
Urban
B. LUETKEMEYER et al.
v.
Harold
KAUFMANN et al.
No.
73-1612.
October
21, 1974
On
appeal from the United States District Court for the Western
District of Missouri.
Facts
and opinion, D.C., 364 F.Supp. 376.
The
judgment is affirmed.
Mr.
Justice WHITE, joined by THE CHIEF JUSTICE, dissenting.
Missouri
provides bus transportation to school for public-school
children, but not for private-school children, living specified
distances from their schools. Missouri Revised Statutes
§§ 167.231, 167.251, 163.161 (1969). Appellant Urban Luetkemeyer,
a Missouri taxpayer, sends his children, in accordance with
his religious conscience, to a school related to the Roman
Catholic Church. He brought this lawsuit claiming that the
denial of bus transportation to parochial-school children
violates his and his children's due process, equal protection,
and free exercise rights. The District Court, Judge Gibson
dissenting, ruled in favor of appellees, and this Court
now summarily affirms.
In
Everson v. Board of Education, 330 U.S. 1, 67 S.Ct.
504, 91 L.Ed. 711 (1947), the Court upheld a state statute
authorizing local school districts to provide bus transportation
to school for parochial-school children. This case presents
the question whether in some circumstances a State may be
constitutionally compelled to provide such transportation.
This Court has never ruled on this question. Cf. Norwood
v. Harrison, 413 U.S. 455, 462, 93 S.Ct. 2804, 37 L.Ed.2d
723 (1973); Everson v. Board of Education, supra,
330 U.S. at 16, 67 S.Ct. 504.
In
Everson the Court noted that persons could not be excluded
by a State 'because of their faith, or lack of it,
from receiving the benefits of public welfare legislation.'
Id. (emphasis in original). The Court found that the
New Jersey statute in question 'does no more than provide
a general program to help parents get their children, regardless
of their religion, safely and expeditiously to and from
accredited schools.' Id., at 18, 67 S.Ct. 504. Clearly
this Court viewed the program of bus transportation as a
service 'so separate and so indisputably marked off from
the religious function . . .' that it could not be considered
aid to religious schools in violation of the Establishment
Clause. Ibid. See also Committee for Public Education
& Religious Liberty v. Nyquist, 413 U.S. 756, 781,
782, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Board of Education
v. Allen, 392 U.S. 236, 242, 88 S.Ct. 1923, 20 L.Ed.2d 1060
(1968).
The
District Court in this case rejected appellants' equal protection
claim on the ground that the Missouri program, in excluding
private-school children from the bus service, was in pursuit
of a valid state interest in 'maintaining a very high wall
betwell church and state.' Luetkemeyer v. Kaufmann,
364 F.Supp. 376, 383 (WD Mo.1973). The enforcement of church-state
separation could in many instances be a valid state interest,
but after Everson it would be difficult to assert
that refusal to extend busing to parochial-school children,
without more, furthers a legitimate state interest in avoiding
church-state entanglements. On the contrary, the 'benefits
of public welfare legislation'--here a 'general program
to help parents get their children . . . safely and expeditiously
to and from accredited schools,' Everson, supra,
330 U.S. 16, 18, 67 S.Ct. 504--seems to be denied because
certain students are seeking religious training. Without
a valid interest supporting the different treatment accorded
public-school and parochial-school students, that classification
would violate federal equal protection principles. Moreover,
the arbitrariness of the denial of a general public service
raises the question whether the State has not become the
'adversary' of the religion and has placed burdens on appellants'
free exercise rights.
I
would note probable jurisdiction and set this case for argument.
Reprinted from Westlaw with permission of Thomson/West. If you wish to check the currency of this case, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.
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