Judd v. Board of Education of Union Free School District No. 2 , 278 N.Y. 200 ( 1938 )

In this taxpayer's action, instituted under section 51 of the General Municipal Law, to restrain the Board of Education from furnishing transportation to pupils of private schools, the plaintiffs attack the constitutionality of subdivision 18 of section 206 of the Education Law, under the authority of which the transportation was furnished. In so far as material here that section provides: "* * * whenever in any school district children of school age shall reside so remote from the schoolhouse therein or the school they legally attend that they are practically deprived of school advantages during any portion of the school year, the inhabitants thereof entitled to vote are authorized to provide, by tax or otherwise, for the conveyance of any or all pupils residing therein (a) to the schools of such city, or district with which such contract shall have been made, or (b) to the school maintained in said district and to schools, other than public, situate within the district or an adjacent district or city. Whenever conveyance of pupils shall be so provided for by vote of the inhabitants, the school district and the school trustees shall provide, if need be, one or more routes so that all children of school age in said district shall equally be afforded transportation facilities."

The sole ground of attack on the constitutional validity of this statute is that it infringes article IX, section 4, of the State Constitution, which reads: "Neither the State nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught." It is conceded that the school to which transportation is furnished here comes within the class specified in this section of the Constitution.

It will be observed that the constitutional provision referred to not only recognizes the right of such schools to exist, but by implication, authorizes the expenditure of public money "for examination or inspection" of such schools. Nevertheless, our fundamental law provides that neither the State nor any political subdivision shall permit its money, credit or property to be used "in aid or maintenance" of any such religious schools. The Legislature may not disobey the mandate of the Constitution, and should they do so the courts may not hesitate to declare the infringement of the constitutional mandate. The question presented here is whether the Legislature has authorized a political subdivision of the State to use its money "in aid or maintenance" of any school of the class named in the Constitution.

Article 23 of the Education Law deals with compulsory education. Under section 620: "A minor required to attend upon instruction by the provisions of this article may attend at a public school or elsewhere. The requirements of this section shall apply to such a minor, irrespective of the place of instruction." The section prescribes the quality and language of instruction, courses of study, and length of school sessions. Section 621 prescribes the age limit within which minors must attend upon full time instruction, and section 622 sets forth the conditions under which he may attend part-time school. Section 625 provides for the amount and character of the required attendance: "If a minor included by the provisions of this article attends upon instruction elsewhere than at a public school, he shall attend for at least as many hours, and within the hours specified therefor." (Id.) Every person in parental relation to a minor "shall cause such minor to attend upon instruction as hereinbefore required * * *." (§ 627, subd. B-2.) The provisions relating to attendance at school are enforced by attendance officers who may arrest truants (§ 640). A violation of the article is punishable by a fine (§ 641).

The Legislature recognizes the right of parents to send their children for instruction to schools other than public schools. It could not do otherwise consistently with the Fourteenth Amendment to the United States Constitution. (Pierce v. Society ofSisters, 268 U.S. 510.) Nevertheless, it has commanded all minors within certain ages to attend school and requires those in parental relation to cause the children to attend upon instruction as provided. When a child is enrolled in a school, public or otherwise, regular attendance is compulsory. A child may be sent to a public school or to a private school, but those in charge of the child are not free to permit the child to grow up without any instruction whatever.

Having made attendance upon instruction compulsory and having approved of attendance at certain schools other than public schools, the Legislature determined that the inhabitants of the district should have the power, under certain conditions, to provide for the transportation of the pupils to and from the schoolhouse in the district or the school which they legally attend. The object of such legislation is apparently to insure the attendance of the children at their respective schools for the requisite period of instruction and, perhaps, to safeguard the health of the children. The statute is not designed to aid or maintain the institutions themselves. Recognizing the right of the children to be sent to such schools, and enjoining upon them the duty of regular attendance, the Legislature gave the authorities power, in a proper case, to assist the children in getting to their school. The law says to the children and parents: Having chosen a proper school, you must attend regularly. The school district has been given the power to add to that: Where necessary, we shall assist you in getting there.

The statute in question does not have the effect of giving public money, property or credit in aid or maintenance of religious schools. The aid is given to the pupils who are legally attending such schools, to assist them to spend the required time in attendance upon instruction. In most cases those in parental relation choose the school at the beginning of the school year, and the arrangements for transportation cannot be initiated until the attendance figures show whether and to what extent such facilities may be needed. There is no benefit to the schools except, perhaps, as one may conceive an accidental benefit in the sense that some parents might place their children in religious schools when they anticipate transportation provision, though they might hesitate to do so if the children were compelled to make their own way. The constitutional provision is not designed to discourage or thwart the school where religious instruction is imparted. "Denominational religion is merely put in its proper place outside of public aid or support." (People ex rel. Lewis v. Graves, 245 N.Y. 195, 198.)

The judgment should be affirmed.

LEHMAN, HUBBS and FINCH, JJ., concur with RIPPEY, J.; CRANE, Ch. J., dissents in opinion, in which O'BRIEN and LOUGHRAN, JJ., concur.

Judgment accordingly. (See 278 N.Y. 712.)