Gaffney v. State Department of Education , 192 Neb. 358 ( 1974 )

White., C. J.

At issue in this appeal is the constitutionality, under the Constitution of Nebraska and the Constitution of the United States, of the “Nebraska Textbook Loan Act,” originally L. B. 659, Laws ,1971, now sections 79-4,118, 79-4,118.01, 79-4,119, and 79-1338, R. R. S. 1943. Generally, the legislative program embodied in these sections of the statute and in L. B. 659 intended to provide financial assistance to nonpublic elementary and secondary schools through the loan of secular textbooks by public school district boards of education. The plaintiffs, pursuant to section 79-4,118, R. R. S. 1943, requested the free loan of textbooks from the Omaha Public School District, on behalf of their children who were enrolled in a private parochial school. Their request was forwarded to the Nebraska Department of Education. On advice from the Attorney General, the Nebraska Department of Education advised the school district to take no action implementing the Nebraska .Textbook Loan Act until there had been a determination of its constitutionality. The plaintiffs then brought this declaratory judgment action seeking to have the law declared valid. The District Court, in a judgment entered on December 1, 1972, declared the act constitutional. On appeal we hold that the Nebraska Textbook Loan Act is unconstitutional under the Constitution of Nebraska. Accordingly, the judgment of the District Court is reversed.

In pertinent part the Nebraska Textbook Loan Act, L. B. 659, Laws 1971, provides as follows: (1) A. general declaration of legislative policy and purpose to aid education and develop the resources and skills of youths that the state and local communities should retain primary responsibility for public education, and that the public welfare and safety of the state require that the state give assistance to educational programs which are important to the national defense and the general welfare of the state. (2) Section 79-4,118, R. R. S. 1943, provides as follows: “Boards of education shall have the power and duty to purchase and to loan textbooks to all children who are enrolled in grades kindergarten to twelve of a public school and, upon individual request, to children who are enrolled in grades seven to twelve of a private school which is approved for continued legal operation under rules and regulations established by the State Board of Education pursuant to subdivision (c) of subsection (5) of section 79-328. Textbooks loaned to children enrolled in grades seven to twelve of such private schools shall be textbooks which are designated for use in the public schools of the school district. Such textbooks are to be loaned free to such children subject to such rules and regulations as are or may be prescribed by such boards of education ” (3) Section 79-4,119, R. R. S'. 1943, provides that for the “purpose of paying for school books, equipment, and supplies, the school district officers may draw an order on the district treasurer” for the payment of school books, equipment, and supplies; and further provides that each school district shall receive from the School Foundation and Equalization Fund an amount equal to the cost of textbooks purchased and loaned by the district, subject to certain máximums of reimbursement, and then section 79-1338, R. R. S. 1943, provides for the bookkeeping scheme by which the funds provided for are paid for by the state. (4) The title to the Act states only one purpose, “to provide for purchase and loan of textbooks by school districts to children enrolled in private schools; * * *” and to accomplish that purpose the Act only amends previous sections 79-4,118 and 79-4,119, R. R. S. 1943, and section 79-1338, R. S. Supp., 1969.

■ We discuss first the issue of constitutionality under Article VII, section 11, of the Constitution of Nebraska. It provides in part: “Neither the state Legislature nor any county, city or other public corporation, shall ever make any appropriation from any public fund, or grant any public land in aid of any sectarian or denominational school or college, or any educational institution which is not exclusively owned and controlled by the state or a governmental subdivision thereof.” (Emphasis supplied.)

It seems to us that to state the constitutional provision is to answer our question. By its terms the provisions furnish aid (in the form of textbooks) to private sectarian schools. By its terms the cost is paid by a public appropriation of tax funds. By its terms textbooks must be used and are given in aid of students in educational institutions which are not exclusively owned and controlled by the state or a governmental subdivision thereof.

The question, if we can call it that, here presented, is fundamentally different than the one presented by state action involving an examination of the standards set up by the United States Supreme Court under the Establishment Clause of the First Amendment. It is true the question under the Constitution of Nebraska and the Constitution of the United States both relate to the overall principle of separation of church and state. But, by its terms, the Constitution of Nebraska does not permit of an examination of secular or sectarian purposes, a determination of primary or incidental benefit, or a balancing of the issues involved in state-church entanglement and political divisiveness. There is no ambiguity in our constitutional provision. The impact of the language and its purpose can be understood by any literate person. The standards are not secular purpose, primary aid, or political divisiveness and state-church entanglement. They are whether there is a public appropriation, whether the grant is in aid of any sectarian or denominational school or college, and, perhaps more importantly, the meaning of these two terms, if they would require any further definition, is fastened down unequivocally, fundamentally, and permanently by the statement that any educational institution which receives such aid must be exclusively owned and controlled by the state or a governmental subdivision thereof.

Constitutional and statutory provisions are not open to construction as a matter of course. It would be difficult to find a constitutional or statutory provision that is more precise in its meaning, purpose, and terms. It says what it means and means what it says. We therefore resort to the proceedings in the Constitutional Convention of 1919-1920 only for the purpose of demonstrating the transcendent purpose and thrust of the design and purpose of this amendment. In the proceedings of the 1919-1920 Constitutional Convention, the following are pertinent excerpts from the Convention proceedings: “As far as I am personally concerned, I desire to have the Constitution prohibit any state aid under any guise to any educational institution other than the public school. It is not a difficult matter, if the Legislature sees fit to find an excuse in the interests of general welfare, to make donations under the guise of military training or normal training or what not, in a private institution. I have absolutely no hostility to those institutions, but it will invariably bring on the kind of war fare that this state should stay clear from, if you mingle the state and church even to that extent. * * *

“* * * The state might desire to adopt the policy, instead of extending its own plan for normal schools, to utilize the denominational schools. * * *

“I am opposed to that principle. * * *

“Mr. Taylor: This amendment simply does this: It prohibits the aiding by the state of any schools other than those owned and controlled by the state or its subdivisions. It makes that matter plain and the amendment ought to be adopted.” (Emphasis supplied.) Vol. II, Proceedings of the Constitutional Convention, 19,19-1920, pp. 2661, 2678, 2680.

We come to the conclusion that by its terms, by its history, and by its purpose, that the intent of the amendment was, and is, to prohibit the extension of aid from public funds to nonpublic schools, in any manner, shape, or form.

The attempt to transpose and inject the First Amendment by carrying on tests of secular purpose, primary effect of aiding religion, and governmental entanglement or political divisiveness, into the interpretation of a state constitutional provision such as ours, must be rejected. By its terms, the criteria of our state constitutional provision do not permit an examination of the now challenged distinction between secular or sectarian purposes, nor do they permit an examination of a scheme to determine the elusive distinction between primary or incidental benefit, nor ail examination into: the areas of surveillance, entanglement, and political divisiveness. By its terms the language of the constitutional provision was designed to prevent reexamination and circumvention of its purpose, by the categorical objective requirement that there shall be no aid or appropriation to any school or institution of learning not owned or exclusively controlled by the state. Almost incredibly prophetic is the previously quoted statement in our Constitutional Convention of 1919-1920, that “it will invariably bring on the kind of war fare that this state should stay clear from, * * The argument goes on in an avalanche of cases and statutes under the First Amendment as to how far the door should be opened and when the “verge” that Justice Black announced in Everson v. Board of Education, 330 U. S. 1, 67 S. Ct. 504, 91 L. Ed. 711, should be reached or extended. But surely no detached examination of our constitutional provision, its history, and declared purpose can come to any other conclusion than that the State of Nebraska attempted to avoid even opening the door to an involvement in the political, legislative, and judicial disputes involved in determining hairline and illusory distinctions of degree. The Constitution neither commands nor permits any financial aid by way of public appropriation. It does not limit it, it says there shall be no aid at all. Relevant here is this excerpt from Madison’s classic statement in his Remonstrance. It is: “That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever.”

• Other states having similar or identical constitutional provisions to that of Nebraska have come to the same conclusion as we have hereinbefore expressed. We cite' only those most pertinent. In Almond v. Day, 197 Va. 419, 89 S. E. 2d 851, the Virginia court declared unconstitutional an act appropriating 'funds with which to provide tuition, institutional fees, board and room, books and supplies, at nonpublic schools which had been' approved by the Superintendent of Public Instruction. Our constitutional provision is identical with theirs. Said the Virginia Supreme Court: “It will be observed that the prohibition in Section 141 is in broad and inclusive language. It says, ‘No appropriation of public funds shall be made to any school or institution of learning not owned or exclusively controlled by the State or some political subdivision thereof with two provisos or exceptions then spelled out. The effect is thus to prohibit all appropriations of public funds to institutions of learning other than those expressly permitted. The-prohibition is against any or all aid to the excluded institutions.” (Emphasis supplied.)

In Dickman v. School District No. 62C, 232 Ore. 238, 366 P. 2d 533, the Oregon Supreme Court passed on the' constitutionality of a statute providing for the furnish-' ing of free textbooks to all children, including those attending nonpublic schools. The Constitution of the State of Oregon provided in part: “No money shall be drawn from the Treasury for the benefit of any religious, or theological institution * * We note that the constitutional provision does not even approach the prohibitory conciseness, definiteness, and definitiveness of our own constitutional provision. In this case the statute provided for the loan of textbooks to individual children, the same as here, but observed that in practice, as here, the books would be delivered to the authorities in charge of the schools, and would furnish an integral part, as all textbooks do, in the educational secular effort in the parochial schools. The court held the act unconstitutional and in closing stated as follows: “We are' not unmindful of the fact that parents .who send their: children to Catholic schools must bear the double burden of supporting not only their parochial schools but the public schools as well. But the added burden is self-imposed; instruction in the public schools is available to all. Catholic schools operate only because Catholic parents feel that the precepts of their faith should be integrated into the teaching of secular subjects. Those who do not share in this faith need not share in the cost of nurturing it.”

The State of Idaho has a constitutional provision almost identical to ours. In Epeldi v. Engelking, 94 Idaho 390, 488 P. 2d 860, the Supreme Court of Idaho, in striking down a provision for busing parochial students, under its state constitutional provision, said as follows: “This section in explicit terms prohibits any appropriation by the legislature or others (county, city, etc.) or payment from any public fund, anything in aid of any church or to help support or sustain any sectarian school, etc. By the phraseology and diction of this provision it is our conclusion that the framers of our constitution intended to more positively enunciate the separation between church and state than did the framers of the United States Constitution. Had that not been their intention there would have been no need for this particular provision, because under Idaho Const, art. 1, § 3, the exercise and enjoyment of religious faith was guaranteed (comparable to the free exercise of religion guaranteed by the First Amendment of the United States Constitution) and it further provides no person could be required to attend religious services or support any particular religion, or pay tithes against his consent (comparable to the establishment clause of the First Amendment).

“The Idaho Const, art. 9, § 5, requires this court to focus its attention on the legislation involved to determine whether it is in ‘aid of any church’ and whether it is ‘to help support or sustain’ any church affiliated school. The requirements of this constitutional provision thus eliminate as a test for detérmination of the constitutionality of the statute, both the ‘child benefit’ theory discussed in Everson v. Board, supra, and the standard of Board of Education v. Allen, supra, i.e., whether the legislation has a ‘secular legislative purpose and a primary effect that neither advances nor inhibits religion.’ In this context, while we recognize that even though this legislation does assist the students to attend parochial schools, it also aids those schools by bringing to them those very students for whom the parochial schools were established. Thus, it is our conclusion that this legislation, the effect of which would be to aid the school, is prohibited under the provisions of Idaho Const. Art. 9, § 5.” (Emphasis supplied.)

The plaintiffs nevertheless attempt to escape the direct impact of the language of our constitutional provision by arguing extensively that the furnishing of the textbooks to the students is an aid to the students' and not to the school. This argument was exhaustively answered in our recent opinion in State ex rel. Rogers v. Swanson, ante p. 125, 219 N. W. 2d 726. Therein we quoted extensively from both state and federal cases that explore and deny a contention that ignores substance for form, reality for rhetoric, and would lead to total circumvention of the principles of our Constitution and the First Amendment to the Constitution of the United States. In State ex rel. Rogers v. Swanson, supra, this court said: “In Committee for Public Education & Religious Liberty v. Nyquist (1973), 413 U. S. 756, 93 S. Ct. 2955, 37 L. Ed. 2d 948, the Supreme Court had before it a New York law granting tuition reimbursement and tax benefits to the parents of elementary and secondary private school students. The court stated: ‘As Mr. Justice Black put it quite simply in Everson: “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” 330 U. S. at 16.

■. “ ‘The controlling question here, then, is whether the fact that the grants are delivered to parents rather than schools is of such significance as to compel a contrary result. * * * Indeed, it is precisely the function of New York’s law to provide assistance to private schools, the great majority of which are sectarian. By. reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools. And while the other purposes for that aid — to perpetuate-a pluralistic educational environment and to protect the fiscal integrity of over-burdened public schools —. are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions. * * *

“ ‘First, it has been suggested that it is of controlling significance that New York’s program calls for reimbursement for tuition already paid rather than for direct contributions which are merely routed through the parents to the schools, in advance of or in lieu of payment by the parents. The parent is not a mere conduit, we are told, but is absolutely free to spend the money he receives in any manner he wishes. * * * A similar inquiry governs here: if the grants are offered as an incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions. Whether the grant is labeled a reimbursement, a reward or a subsidy, its substantive impact is still the same.’

“To the same effect is Sloan v. Lemon (1973), 413 U. S. 825, 93 S. Ct. 2982, 37 L. Ed. 2d 939, wherein it was said: ‘The State has singled out a class of its citizens for a special economic benefit. Whether that benefit be viewed as, a simple tuition subsidy, as an incentive to parents to send their children to sectarian schools, or as a reward for having done so, at bottom its intended consequences is to preserve and support religion-oriented institutions.’ See, also, Almond v. Day, 197 Va. 419, 89 S. E. 2d 851; Hartness v. Patterson, 255 S. C. 503, 179 S. E. 2d 907; Wolman v. Essex, 342 F. Supp. 399, affirmed 409 U. S. 808, 93 S. Ct. 61, 34 L. Ed. 2d 69; Kosydar v. Wolman, 353 F. Supp. 744, affirmed, 413 U. S. 901, 93 S. Ct. 3062, 37 L. Ed. 2d 1021; Public Funds for Public Schools of New Jersey v. Marburger, 358 F. Supp. 29; People ex rel. Klinger v. Howlett (1973), 156 Ill. 2d 1, 305 N. E. 2d 129.

' “Although these cases dealt with questions arising under the First Amendment to the Constitution of the United States, they specifically hold that tuition allowances from public funds to parents of students! are, in effect, appropriations for, or in aid of, private schools, and as such are impermissible. Direct allowance of such tuition funds to the students as distinguished from their parents is immaterial. The same factors are present. It is a patent attempt to sanction by indirection that which the Constitution forbids.” (Emphasis supplied.)

Committee for Public Education & Religious Liberty v. Nyquist (1973), 413 U. S. 756, 93 S. Ct. 2955, 37 L. Ed. 2d 948, dealt with nonideological subsidies for repairs and maintenance, and instructional materials and supplies, as well as tuition grants. The other cases cited deal mainly with tuition grants and some with textbook loans to students. Besides the other lessons that these cases teach, it is indisputable that channeling the aid to the parents or to the students when such aid is used as an integral part of the education received in the private or parochial school, is an impermissible circumvention and is unconstitutional.

All these cases emphasize that the court must examine the character of the aided activity rather than the manner or the form in which aid is given. ■ We point out further that one of the main purposes of the parent sending his child to a parochial school is to insure' the early inculcation of religion. Assuming that textbooks promote the notion of an absolutely neutral and equal secular educational program, the reimbursement or the loan of textbooks to the students is for the purpose of augmenting the public school secular education with religious training. The state, by aiding the parents and the students by textbooks, secular though they may be, is providing a program for aiding the church and in advancing religious education. It is clear to us the fact that the benefit of the secular textbooks goes originally to the student rather than directly to the school is a mere conduit and 'does not have the cleansing effect of removing the identity of the ultimate benefit to the school as being public funds. And interwoven with this situation, realism demands that we see that free textbook loans may be, and it is reasonably probable that they are, the circumstance which determines whether a given pupil will remain in a parochial school or in a public school. The granting of free textbook loans to a parochial school student lends strength and support to the school and, although indirectly, lends strength and support to the sponsoring sectarian institution.

We therefore hold, under Article VII, section 11, of the Constitution of Nebraska, that L. B. 659 is unconstitutional and that the District Court was in error in holding to the contrary.

Having reached this decision under the Constitution of Nebraska, we find it unnecessary to pass on or determine the question of whether the Nebraska Textbook Loan Act is unconstitutional under the Establishment Clause of the First Amendment to the Constitution of the United States.

The judgment of the District Court finding the Act constitutional is reversed and the cause remanded.

Reversed and remanded.