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332
F.Supp. 275
(Cite
as: 332 F.Supp. 275)
United
States District Court, E.D. Missouri, Eastern
Division.
Robert
D. BRUSCA and Mary L. Brusca, his wife, et al.,
Plaintiffs,
v.
STATE
OF MISSOURI ex rel. STATE BOARD OF
EDUCATION,
et al., Defendants,
John
C. Danforth, Attorney General of the State of
Missouri,
Intervening
Defendant
No.
69 C 404(2).
Sept. 28, 1971.
Action
by parents of school age children seeking declaratory, injunctive
and other relief based on asserted invalidity of provisions
of Missouri Constitution and implementing statutes governing
use of public funds for religious or sectarian education.
On motions to dismiss, the Three-Judge District Court, Regan,
District Judge, held that provisions of Missouri Constitution
and implementing statutes, which establish and provide for
funding of a free public school system and which prohibit
the use of public funds to aid directly or indirectly religious
or sectarian schools, do not violate either constitutional
right to free exercise of religion or equal protection.
Action
dismissed.
West
Headnotes
[1]
Constitutional Law 84.1
92k84.1
Most Cited Cases
(Formerly
92k84(1), 92k84)
Three
tests or criteria for determining whether a particular governmental
program offends the religion clauses of the First Amendment
are: First, that it have a secular legislative purpose;
second, that its principal or primary effect be one that
neither advances nor inhibits religion; and third, that
the statute must not foster an excessive government entanglement
with religion. U.S.C.A.Const. Amend. 1.
[2]
Constitutional Law 69
92k69
Most Cited Cases
[2]
Federal Courts 1013
170
Bk1013 Most Cited Cases
(Formerly
106k101)
A
three-judge district court does not render advisory opinions
nor sit in judgment on plans or statutes which have not
yet been formulated or adopted. 28 U.S.C.A. §§ 2281, 2284.
[3]
Constitutional Law 84.5(4.1)
92k84.5(4.1)
Most Cited Cases
(Formerly
92k84.5(4), 92k84)
To the extent that the religion clauses of the First Amendment
do not prohibit enactment of a program designed to assist
a parent in educating his child religiously with the use
of tax-raised money, they do not require that it be given
by the states. U.S.C.A.Const. Amend. 1.
[4]
Constitutional Law 208(1)
92k208(1)
Most Cited Cases
There is nothing arbitrary or unreasonable in the determination
of a state to deny public funds to sectarian schools or
for religious instruction; so long as no invidious discrimination
exists, the courts may not interfere. U.S.C.A.Const. Amends.
1, 14.
[5]
Schools 102
345k102
Most Cited Cases
A
tax-paying parent, who chooses to send his children to a
religiously-oriented school, does not have a constitutional
right to any credit for his taxes which support the public
schools simply because he will not or cannot make use of
them. U.S.C.A.Const. Amends. 1, 14.
[6]
Constitutional Law 84.5(4.1)
92k84.5(4.1)
Most Cited Cases
(Formerly
92k242.2(2), 92k211)
[6]
Schools 3
345k3
Most Cited Cases
Provisions of Missouri Constitution and implementing statutes,
which establish and provide for funding of a free public
school system and which prohibit the use of public funds
to aid directly or indirectly religious or sectarian schools,
do not violate either constitutional right to free exercise
of religion or equal protection. V.A.M.S.Const. art. 9,
§§ 1(a), 5, 8; U.S.C.A.Const. Amends. 1, 14
.
*275 Edward C. Cody, Klutho & Cody, St. Louis, Mo.,
for plaintiffs.
Paul B. Rava and Albert J. Stephan, Jr., Lashly, Caruthers,
Rava, Hyndman & Rutherford, St. Louis, Mo., for Missouri
State Bd. of Ed., its Members and the Commissioner of Education.
John
C. Danforth, Atty. Gen., D. Brook Bartlett, Asst. Atty.
Gen., Gene *276 E. Voights, First Asst. Atty. Gen., Jefferson
City, Mo., for State of Mo., Warren E. Hearnes, Governor,
and intervening defendant John C. Danforth, Atty. Gen. of
Mo.
MEMORANDUM
OPINION
REGAN, District Judge.
This action by parents of children of school age and their
minor children seeks declaratory, injunctive, and other
relief based on the asserted invalidity of the provisions
of the Missouri Constitution and implementing statutes which
establish and provide for the funding of a free public school
system and which prohibit the use of public funds to aid
directly or indirectly religious or sectarian schools. Our
jurisdiction is invoked under 28 U.S.C. §§ 1343(3) and 1331.
A three-judge court was convened pursuant to 28 U.S.C. §§
2281 and 2284. Presently before the Court are motions of
defendants and intervening defendant Danforth to dismiss
the amended complaint.
All parent-plaintiffs are taxpayers who "due to the dictates
of their consciences and the practices of their religious
and moral principles" wish to have their children attend
private schools "offering certain religious and moral training
as part of their curriculum and offering other amenities
incident to religiously or morally oriented non-public schools
in spite of the economic burdens of doing so." All of them
are parents of pupils in non-public or parochial schools,
and two sets of such parents also have some children attending
public schools because of their inability to pay the necessary
tuition for all of their children.
Article
IX, Section 1(a) of the Constitution of Missouri requires
the general assembly to "establish and maintain free public
schools for the gratuitous instruction of all persons in
this state within ages not in excess of twenty-one years
as prescribed by law." Section 5 of this Article provides
for a public school fund, "the annual income of which shall
be faithfully appropriated for establishing and maintaining
free public schools, and for no other uses or purposes whatsoever."
And Section 8 of Article IX expressly provides that "(n)either
the general assembly, nor any county, city, town, township,
school district or other municipal corporation, shall ever
make an appropriation or pay from any public fund whatever,
anything in aid of any religious creed, church or sectarian
purpose, or to help to support or sustain any private or
public school *** or other institution of learning controlled
by any religious creed, church or sectarian denomination
whatever." It is these provisions of the Missouri Constitution
which plaintiffs seek to invalidate and the enforcement
of which they seek to enjoin unless and until the defendant
officials "take action to extend the benefits of free education
to all persons, regardless of *** creed." [FN1]
FN1.
Not mentioned in the amended complaint, but also relevant
to the issues, is Section 7 of Article I (the Bill of
Rights) of the Missouri Constitution which provides
"(t)hat no money shall ever be taken from the public
treasury, directly or indirectly, in aid of any church,
sect or denomination of religion."
The basic theory upon which plaintiffs ground their amended
complaint is that the necessary effect of the Missouri constitutional
provisions and implementing statutes is to prevent or at
least seriously impair the free exercise by plaintiffs of
their religion and to deny them the equal protection of
the laws unless and until defendants take steps to subsidize
with tax funds the religious schools to which the parent-plaintiffs
wish to send their children.
The
issue presented by the amended complaint is not so much
what Missouri may do but what it must do in aid of religious
education. Stated simply, parent- plaintiffs claim to be
entitled, as a matter of federal constitutional right, to
tax-raised funds for the purpose of affording *277 a religious
education to their children. By their State Constitution,
the people of Missouri have decided that they will not permit
the use of state funds, directly or indirectly, in aid of
religion or religious institutions. These provisions expressing
the public policy of Missouri, are a bar to any financial
assistance to plaintiffs unless they are held violative
of either the Free Exercise Clause of the First Amendment
or the Equal Protection guaranty of the Fourteenth Amendment.
Plaintiffs reason thusly: In compliance with Missouri's
compulsory school attendance law, parent-plaintiffs have
the constitutional right to select the school of their choice
according to the dictates of their consciences and the practice
of their religion, and such freedom of choice is "abridged,
diminished and destroyed" by denying tax-supported educational
benefits to those who do not choose to send their children
to free public schools.
Plaintiffs argue from the premise that Pierce v. Society
of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, mandates
freedom of choice based solely on religious grounds. The
Court there held only that the Fourteenth Amendment precludes
a state from compelling parents to send their children to
public schools only, thereby unreasonably interfering "with
the liberty of parents *** to direct the upbringing and
education of children under their control." 268 U.S. 1.
c. 534-535, 45 S.Ct. 573. "While one of the plaintiffs was
indeed a parochial school [the other was a secular private
school], the case obviously decided no First Amendment question
but recognized only the constitutional right to establish
and patronize private schools-including parochial schools-which
meet the state's reasonable minimum curricular requirements."
Mr. Justice Brennan, concurring, in School District of Abington
Township, Pa. v. Schempp, 374 U.S. 203, 248, 83 S.Ct. 1560,
1585, 10 L.Ed.2d 844
.
"It is precisely because the instruction is religious or
related to a particular faith, whether one or another, that
parents send their children to religious schools under the
Pierce doctrine." Mr. Justice Rutledge, dissenting, in Everson
v. Board of Education, 330 U.S. 1, 46, 67 S.Ct. 504, 91
L.Ed. 711. It is crystal clear from the amended complaint
(and from plaintiffs' briefs in opposition to the motions
to dismiss) that the "precise" reason parent-plaintiffs
demand state aid in this case is to enable them to obtain
a religious education for their children.
Of
course, granted the right of parental choice between public
and private schools, it necessarily follows that the state
could not, without manifesting hostility rather than the
"wholesome neutrality" commanded by the First Amendment,
prevent a parent from choosing a sectarian-sponsored private
school for no reason other than its substantial religious
character. But a parent's right to choose a religious private
school for his children may not be equated with a right
to insist that the state is compelled to finance his child's
non- public school education in whole or in part in order
that he may obtain a religious education. [FN2]
FN2.
Everson v. Board of Education, 330 U.S. 1, which sustained
the power of a state to extend the benefits of school
bus transportation to all children on a nondiscriminatory
basis without regard to their religious beliefs, carefully
cautioned that the Court did not mean to intimate by
its decision "that a state could not provide transportation
only to children attending public schools."
Board
of Education of Central School District No. 1 v. Allen,
392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060, held no
more than that a state may, not that it must, adopt
a program for the purpose of furthering educational
opportunities for the young under which secular textbooks
are loaned free of charge to children attending parochial
and other private schools.
Walz
v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d
697, upheld state tax exemptions for real property owned
by religious organizations, not because the Constitution
requires the grant of such exemptions, but because history
had shown that such exemptions could safely be permitted,
no direct money subsidy being involved. And Zorach v.
Clauson, 343
U.S.
203, 77 S.Ct. 679,
96
L.Ed. 954, read with
People
of State of Ill. ex rel. McCollum v. Board of Education,
333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649, teaches that
it is one thing to cooperate with religion by permitting
the release of public school children for religious
instruction without cost to the state on off-school
premises, and quite another to assist such a religious
program financially, even to the limited extent of allowing
the use of school buildings for that purpose.
*278 The most recent pronouncement of the Supreme Court,
Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d
745, in our opinion forecloses any possibility of granting
the relief which plaintiffs seek. In Lemon the Court struck
down two different statutory schemes under which aid was
given to parochial schools. Under the one, Pennsylvania
gave financial support directly to the school to purchase,
by way of reimbursement for the cost thereof, specified
secular educational services such as teachers' salaries,
textbooks and instructional material, and under the other,
Rhode Island "supplemented" the salaries of the school's
teachers of secular subjects. In each instance the statute
created certain restrictions upon the use of the funds which
were "designed to guarantee the separation between secular
and religious educational functions and to ensure the State
financial aid supports only the former. All these provisions
are precautions taken in candid recognition that these programs
approached, even if they did not intrude upon the forbidden
areas under the Religion Clauses."
[1]
Lemon restated the three tests or criteria developed
by the Court for determining whether a particular program
offends the Religion Clauses of the First Amendment: First,
that it have a secular legislative purpose; second, that
its principal or primary effect be one that neither advances
nor inhibits religion; and third, that the statute must
not foster "an excessive government entanglement with religion."
The
statutes there involved were invalidated under the third
test, not only because of the excessive entanglement created
by "comprehensive, discriminating, and continuing state
surveillance," either presently required or necessarily
implicit for the future, but also because of the "broader
base of entanglement *** presented by the divisive political
potential of these state programs *** aggravated *** by
the need for continuing annual appropriations and the likelihood
of larger and larger demands as costs and populations grow."
Faced
with this decision, plaintiffs now argue that some alternative
program, such as tuition grants, could conceivably be devised
which, so they contend, would be free of government entanglement.
Wholly apart from the fact that "entanglement" comparable
to that described in Lemon cannot realistically be avoided
if plaintiffs are granted aid for parochial school purposes,
particularly on a continuing basis, it is self-evident that
both the purpose and effect of any statute appropriating
tax-raised funds to assist parents in the "free exercise
of their religion" would necessarily be to support religion.
In
its consideration of the first test, the Supreme Court in
Lemon accorded "appropriate deference" to the expressly
stated legislative intent that the purposes of the statutes
were "to enhance the quality of the secular education in
all schools covered by the compulsory attendance laws. There
is no reason to believe the legislatures meant anything
else." In the present case, in which plaintiffs demand,
as a matter of right, state aid for the very purpose of
enabling them to give children an adequate religious education
in sectarian schools, any plan to achieve that end would
necessarily have a non- secular legislative purpose and
thus fail to meet the first test.
*279
Nothing in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790,
10 L.Ed.2d 965, relied on by plaintiffs, suggests a different
result or implies that a state must finance or subsidize
religious schools. That case did not involve any issue of
direct or indirect state assistance to a religious organization.
The Supreme Court therein held that a state may not constitutionally
apply its eligibility provisions "so as to constrain a worker
to abandon her religious convictions respecting the day
of rest" in order to qualify for public welfare unemployment
benefits. We see no analogy to the instant case. Plaintiffs
make no contention that attendance at public schools is
contrary to the basic precepts or tenets of their religion.
"This
case is resolvable not in terms of what an individual can
demand of government, but solely in terms of what government
may not do to an individual in violation of his religious
scruples. The fact that government cannot exact from (a
citizen) a surrender of one iota of (his) religious scruples
does not, of course, mean that (he) can demand of government
a sum of money, the better to exercise them. For the Free
Exercise Clause is written in terms of what the government
cannot do to the individual, not in terms of what the individual
can exact from the government." Sherbert v. Verner, 374
U.S. 398, 412, 83 S.Ct. 1790, 1798 (Mr. Justice Douglas,
concurring).
[2][3]
We do not render advisory opinions nor sit in judgment on
plans or statutes which have not yet been formulated or
adopted. All that is here involved is whether the enactment
of some program designed to assist a parent in educating
his child religiously with the use of tax-raised money is
mandated by the First Amendment. On this narrow issue we
hold that to the extent the Religion Clauses of the First
Amendment do not prohibit such financial aid, they do not
require that it be given by the State.
Plaintiffs
further contend that the provisions of the Missouri Constitution
and statutes which limit the use of tax-raised funds to
the State's public schools are violative of the Equal Protection
Clause of the Fourteenth Amendment. We do not agree.
[4][5]
We find nothing arbitrary or unreasonable in the determination
of the State to deny its funds to sectarian schools or for
religious instruction. So long as no invidious discrimination
exists, the courts may not interfere. Cf. McGowan v. Maryland,
366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393. Here, there
is no discrimination in the legal sense. All children of
every or no religious denomination have the same right to
attend free secular public schools maintained with tax funds.
The fact that a child or his parent for him voluntarily
chooses to forego the exercise of the right to educational
benefits provided in the public school systems does not
deprive him of anything by State action. Nor does a tax-paying
parent who chooses to send his children to a religiously-oriented
school have a constitutional right to any credit for his
taxes which support the public schools simply because he
will not or cannot make use of them. Other taxpayers-e.
g., bachelors, childless couples, corporations-pay taxes
for the support of schools and receive no more benefit from
such tax payments than do the parent-plaintiffs who forego
sending their children to free public schools.
"No
one conscious of religious values can be unsympathetic toward
the burden which our constitutional separation puts on parents
who desire religious instruction mixed with secular for
their children. They pay taxes for others' children's education,
at the same time the added cost of instruction for their
own. Nor can one happily see benefits denied to children
which others receive, because in conscience they or their
parents for them desire a different kind of training others
do not demand." *280 Everson v. Board of Education, 330
U.S. 1, 58, 67 S.Ct. 504, 532, 91 L.Ed. 711 (Mr. Justice
Rutledge, dissenting). That the result of the voluntary
choice of parent-plaintiffs is to impose an economic burden
upon them is not, however, violative of the Fourteenth Amendment.
Cf. Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d
563.
As
in Lemon, "nothing we have said can be construed
to disparage the role of church-related elementary and secondary
schools in our national life. Their contribution has been
and is enormous. Nor do we ignore their economic plight
in a period of rising costs and expanding need. *** The
merit and benefits of these schools, however, are not the
issue before us."
[6]
The Missouri constitutional provisions and implementing
statutes are valid as against the objections made by plaintiffs.
An order will be entered sustaining the motions to dismiss
and dismissing the action. D.C.Mo., 1971.
Copr.
© West 2002 No Claim to Orig. U.S. Govt. Works
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