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Board of Education v. Bakalis

OPINION FILED JUNE 25, 1973.

BOARD OF EDUCATION, SCHOOL DISTRICT NO. 142, COOK COUNTY, ILLINOIS, APPELLANT,

v.

MICHAEL J. BAKALIS, SUPERINTENDENT OF PUBLIC INSTRUCTION, ET AL., APPELLEES.



No. 45189. — APPEAL from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding.

No. 45242. — APPEAL from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding.

MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

KLEIN, THORPE, KASSON & JENKINS, of Chicago (FRANKLIN W. KLEIN and ROBERT F. PECK, of counsel), for appellant.

WILLIAM J. SCOTT, Attorney General, of Springfield, and BERNARD CAREY, State's Attorney, of Chicago (PAUL STICKLER and ALLEN D. SCHWARTZ, Special Assistant Attorneys General, and PAUL P. BIEBEL, JR., Assistant State's Attorney, of counsel), for appellees.

In each of these cases plaintiff, Board of Education of School District No. 142, Cook County, upon allowance of a motion filed under Rule 302(b) (52 Ill.2d R. 302(b)), appeals directly to this court from the judgment of the circuit court of Cook County dismissing its action for injunction and declaratory judgment. Although separately briefed and argued, the cases have been consolidated for opinion. In No. 45189, plaintiff sought a declaratory judgment that section 29-4 of the School Code of 1961 (Ill. Rev. Stat. 1971, ch. 122, par. 29-4), which requires a school board to provide the same transportation along its regular school bus routes for nonpublic school pupils as it provides for its public school pupils, was unconstitutional, and the issuance of a writ of injunction enjoining the defendants, the Superintendent of Public Instruction and the County Superintendent of Schools of Cook County, from withholding State Aid funds because of plaintiff's refusal to furnish transportation to nonpublic school pupils. In No. 45242 plaintiff sought a declaratory judgment that sections 2-3.7, 2-3.8, 3-10 and 3-14.7 of the School Code (Ill. Rev. Stat. 1971, ch. 122, pars. 2-3.7, 2-3.8, 3-10 and 3-14.7) were unconstitutional and also asked that the defendants, the Superintendent of Public Instruction and the County Superintendent of Schools of Cook County, be enjoined from withholding State Aid to the plaintiff because of its refusal to follow, and act in accordance with, the opinions and rulings of the defendants.

School District 142, of which plaintiff school board is the governing body, maintains grades 1 through 8 inclusive in three schools in the Village of Oak Forest and an adjoining unincorporated area. Plaintiff was requested to furnish bus transportation for more than 76 pupils enrolled in St. Damian School in Oak Forest, and St. Christopher School in Midlothian. It is plaintiff's position that there are no seats available on its buses and that in order to provide transportation for the pupils of these nonpublic schools it would be required to hire two additional buses at a substantial annual cost. Plaintiff contends further that unless enjoined from so doing defendants will withhold from the school district State Aid funds to which it is entitled.

The first paragraph of section 29-4 of the School Code provides:

"The school board of any school district that provides any school bus or conveyance for transporting pupils to and from the public schools shall afford transportation, without cost, for children who attend any school other than a public school, who reside at least 1 1/2 miles from the school attended, and who reside on or along the highway constituting the regular route of such public school bus or conveyance, such transportation to extend from the homes of such children or from some point on the regular route nearest or most easily accessible to their homes to and from the school attended, or to or from a point on such regular route which is nearest or most easily accessible to the school attended by such children."

Plaintiff contends that section 29-4 is invalid in that it violates section 3 of article X of the Illinois constitution of 1970, which provides:

"Neither the General Assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution, controlled by any church or sectarian denomination whatever; nor shall any grant or donation of land, money, or other personal property ever be made by the State, or any such public corporation, to any church, or for any sectarian purpose."

It argues that the trial court erred in holding that under the United States Supreme Court's interpretations of the first amendment to the Federal constitution section 29-4 was constitutional, and contends that assuming, arguendo, that the statute does not violate the first amendment, it is invalid under the provisions of section 3 of article X of the 1970 Illinois constitution.

In reaching its decision, the circuit court relied principally upon Everson v. Board of Education, 330 U.S. 1, 91 L.Ed. 711, 67 S.Ct. 504. In Everson, a New Jersey township school board, acting under a statute which empowered it to promulgate rules and make contracts for the transportation of its pupils to and from schools, by resolution authorized reimbursement to the parents of money expended by them for the transportation of their children on regular buses operated by the public transportation system. Reimbursement was authorized and made to parents of children who attended Catholic parochial schools. The New Jersey Court of Error and Appeals, with one dissent, held that neither the statute nor the board's resolution violated either the New Jersey constitution or the first amendment. In a 5-4 decision the Supreme Court of the United States affirmed, and Mr. Justice Black, writing for the majority, summarized the purpose and intent of the Establishment Clause as follows:

"The `establishment of religion' clause of the First Amendment means at least this: Neither a state nor a Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect `a wall of separation between Church and State.' Reynolds v. United States, supra [98 U.S. at 164, 25 L.Ed. 244]." 330 U.S. at 15-16, 91 L.Ed. at 723, 67 S.Ct. at 511.

The court then went on to say:

"New Jersey cannot consistently with the `establishment of religion' clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general State law benefits to all its citizens without regard to their religious belief.

Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State. The same possibility exists where the state requires a local transit company to provide reduced fares to school children including those attending parochial schools, or where a municipally owned transportation system undertakes to carry all school children free of charge. Moreover, state-paid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children's welfare. And parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools, the approaches to which were not protected by policemen. Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks. Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.

This Court has said that parents may, in the discharge of their duty under state compulsory education laws, send their children to a religious rather than a public school if the school meets the secular educational requirements which the state has power to impose. See Pierce v. Society of Sisters, 268 U.S. 510. It appears that these parochial schools meet New Jersey's requirements. The State contributes no money to the schools. It does not support them. Its legislation, as applied, 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.

The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here." 330 U.S. at 16-18, 91 L.Ed. at 724-725, 67 S.Ct. at 512-513.

In a dissenting opinion in Everson, Mr. Justice Rutledge said, "Legislatures are free to make, and courts to sustain, appropriations only when it can be found that in fact they do not aid, promote, encourage or sustain religious teaching or observances, be the amount large or small. No such finding has been or could be made in this case." 330 U.S. at 52-53, 91 L.Ed. at 742, 67 S.Ct. at 529.

Everson demonstrates the difficulty of distinguishing legislation which provides funds for the welfare of the general public from that which aids or sustains religious institutions. In Engel v. Vitale, 370 U.S. 421,8 L.Ed.2d 601, 82 S.Ct. 1261, in which the Supreme Court held that the directive of a board of education in New York which required that a prayer be said aloud at the beginning of each school day violated the first amendment, Mr. Justice Douglas, a member of the majority in Everson said in a concurring opinion: "My problem today would be uncomplicated but for Everson v. Board of Education, 330 U.S. 1, 19, which allowed taxpayers' money to be used to pay `the bus fares of parochial school pupils as a part of a general program under which' the fares of pupils attending public and other schools were also paid. The Everson case seems in retrospect to be out of line with the First Amendment. Its result is appealing, as it allows aid to be given to needy children. Yet by the same token, public funds could be used to satisfy other needs of children in parochial schools — lunches, books, and tuition being obvious examples." 370 U.S. at 443, 8 L.Ed.2d at 615, 82 S.Ct. at 1273.

In Walz v. Tax Commission of City of New York, 397 U.S. 664, 25 L.Ed.2d 697, 90 S.Ct. 1409, holding valid a New York statute exempting from real-property tax realty owned by an association organized exclusively for religious purposes and used exclusively for carrying out such purposes, Mr. Justice Douglas said in a dissenting opinion: "With all due respect the governing principle is not controlled by Everson v. Board of Education, supra. Everson involved the use of public funds to bus children to parochial as well as to public schools. Parochial schools teach religion; yet they are also educational institutions offering courses competitive with public schools. They prepare students for the professions and for activities in all walks of life. Education in the secular sense was combined with religious indoctrination at the parochial schools involved in Everson. Even so, the Everson decision was five to four and, though one of the five, I have since had grave doubts about it, because I have become convinced that grants to institutions teaching a sectarian creed violate the Establishment Clause." (397 U.S. at 703, 25 L.Ed.2d at 721, 90 S.Ct. at 1429.) Although the Supreme Court has continued to cite Everson with approval (see, e.g., Board of Education v. Allen, 392 U.S. 236, 20 L.Ed.2d 1060, 88 S.Ct. 1923; Walz v. Tax Commission, 397 U.S. 664, 25 L.Ed.2d 697, 90 S.Ct. 1409; Tilton v. Richardson, 403 U.S. 672, 29 L.Ed.2d 790, 91 S.Ct. 2091), the difficulty of the problem is further demonstrated by the statement of Mr. Chief Justice Burger, writing for the majority in Lemon v. Kurtzman, 403 U.S. 602, 611-612, 29 L.Ed.2d 745, 755, 91 S.Ct. 2105, 2110: "In Everson v. Board of Education, 330 U.S. 1 (1947), this Court upheld a state statute that reimbursed the parents of parochial school children for bus transportation expenses. There Mr. Justice Black, writing for the majority, suggested that the decision carried to `the verge' of forbidden territory under the Religion Clauses. Id., at 16. Candor compels acknowledgement, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law."

The same divergence of opinion expressed in Everson is found in the decisions of State appellate courts which have considered, under State constitutions containing prohibitions against the use of public funds for sectarian purposes, the validity of legislation authorizing the use of public funds to transport nonpublic school pupils. The courts upholding such legislation have generally adopted the rationale of the Everson majority opinion, while those invalidating such legislation have adopted the rationale of the dissenting opinion. States sustaining public bussing of parochial students are: California (Bowker v. Baker (1946), 73 Cal.App.2d 653, 167 P.2d 256); Connecticut (Snyder v. Town of Newtown (1960), 147 Conn. 374, 161 A.2d 770, appeal dismissed, 365 U.S. 299, 5 L.Ed.2d 688, 81 S.Ct. 692); Kentucky (Nichols v. Henry (1945), 301 Ky. 434, 191 S.W.2d 930; Rawlings v. Butler (Ky. 1956), 290 S.W.2d 801); Maine (Squires v. Inhabitants of City of Augusta (1959), 155 Me. 151, 153 A.2d 80 (dicta)); Maryland (Board of Education of Baltimore County v. Wheat (1938), 174 Md. 314, 199 A. 628 (three judges dissenting)); Adams v. County Comm'rs of St. Mary's County (1942), 180 Md. 550, 26 A.2d 377 (one judge dissenting); Massachusetts (Quinn v. School Committee of Plymouth (1955), 332 Mass. 410, 125 N.E.2d 410); Michigan (Alexander v. Bartlett (1968), 14 Mich. App. 177, 165 N.W.2d 445); Minnesota (Americans United, Inc. v. Independent School District No. 622 (1970), 288 Minn. 196, 179 N.W.2d 146); New Jersey (Everson v. Board of Education (1945), 133 N.J.L. 350, 44 A.2d 333 (one judge dissenting), aff'd, 330 U.S. 1, 91 L.Ed. 711, 67 S.Ct. 504 (4 justices dissenting); West Morris Regional Board of Education v. Sills (1971), 58 N.J. 464, 279 A.2d 609, cert. denied, 404 U.S. 986, 30 L.Ed.2d 370, 92 S.Ct. 450); New York (Board of Education v. Allen (1967), 20 N.Y.2d 109, 281 N.Y.S.2d 799, 228 N.E.2d 791 (3 judges dissenting), overruling the rationale of Judd v. Board of Education (1938), 278 N.Y. 200, 15 N.E.2d 576 (3 judges dissenting), which until Everson expressed the majority view in the country that bussing parochial students was an unconstitutional aid to religion; the effect of Judd had been removed before Allen, however, by an amendment to the New York Constitution specifically permitting bussing of parochial students); Ohio (Honohan v. Holt (1968), 17 Ohio Misc. 57, 244 N.E.2d 537); Pennsylvania (Rhoades v. Abington Township School Dist. (1967), 424 Pa. 202, 226 A.2d 53 (two judges dissenting), appeal dismissed, 389 U.S. 11, 19 L.Ed.2d 7, 88 S.Ct. 61); and West Virginia (State ex rel. Hughes v. Board of Education (W. Va. 1970), 174 S.E.2d 711 (2 judges dissenting).) Those States which have invalidated such legislation are: Alaska (Matthews v. Quinton (Alas. 1961), 362 P.2d 932 (one judge dissenting)); Delaware (State ex rel. Traub v. Brown (1934), 36 Del. 181, 172 A. 835, Opinion of the Justices (Del. 1966), 216 A.2d 668); Hawaii (Spears v. Honda, 51 Haw. Hawaii, 449 P.2d 130); Idaho (Epeldi v. Engelking (1971), 94 Idaho 390, 488 P.2d 860 (2 judges dissenting)); Oklahoma (Board of Education v. Antone (Okla. 1963), 384 P.2d 911); Washington (Visser v. Nooksack Valley School District (1949), 33 Wn.2d 699, 207 P.2d 198 (2 judges dissenting)); and Wisconsin (State ex rel. Reynolds v. Nusbaum (1962), 17 Wis.2d 148, 115 N.W.2d 761 (2 judges dissenting)). It appears that while there is unanimity neither among the courts nor their respective judges, the majority view and the trend of judicial opinion is that transportation at public expense of parochial school students on the same basis as public school students is considered primarily a health-and-safety measure for the benefit of all students, and that any aid to the parochial school, or the church supporting it, is incidental.

In their brief, defendants, citing statistics and highway safety reports, assert that travel by school bus is safer than by automobile or on foot, that children traveling by school bus are protected from inclement weather and from persons who might do them harm, and argue that section 29-4 is a health-and-safety measure for the protection of all school children. Plaintiff, on the other hand, argues that the transportation of parochial school students is a benefit and constitutes assistance to church-controlled schools, that the "child benefit" theory advocated by defendants is a subterfuge to circumvent the constitution, and that aid to a religion-oriented school is tantamount to assisting the church which controls that school. From our examination of the authorities we conclude that section 29-4 was enacted for the secular legislative purpose of protecting the health and safety of children traveling to and from nonpublic schools; that the primary effect of the statute neither advances nor inhibits religion, that any benefit to the parochial school or church controlling it is incidental and that the statute does not foster an excessive government entanglement with religion.

Plaintiff contends that section 3 of article X of the 1970 Illinois constitution is more restrictive than the establishment-of-religion clause of the first amendment and prohibits even incidental aid or benefits to sectarian schools. In support of its contention plaintiff argues that the language of section 3 of article X is identical to that of section 3 of article VIII of the 1870 Illinois constitution, and that both the 1870 and 1970 constitutional conventions rejected efforts to amend it or replace it with a provision similar to the religion clause of the first amendment. 2 Debates of Constitutional Convention 1869-70, at 626; 2 Record of Proceedings, Sixth Illinois Constitutional Convention 841-854 [hereinafter cited as Proceedings].

In People ex rel. Keenan v. McGuane, 13 Ill.2d 520, 527, this court stated: "While in construing the constitution the true inquiry concerns the understanding of the meaning of its provisions by the voters who adopted it, still the practice of consulting the debates of the members of the convention which framed the constitution has long been indulged in by courts in determining the meaning of provisions which are thought to be doubtful." In our opinion the Record of Proceedings of the Sixth Illinois Constitutional Convention indicates that the language of section 3 of ...


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