Appeal from the Circuit Court of Cook County; the Hon. Ben
Schwartz, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
These appeals involve the constitutionality of three legislative programs intended to provide financial assistance for nonpublic elementary and secondary education. Each program is embodied in two statutes: one establishes it, the other makes the initial appropriation. Prior to July 1, 1972, the effective date of the statutes, the Auditor of Public Accounts instructed his staff that "because of serious doubts that exist concerning the constitutionality of these six statutes under the United States and Illinois constitutions," they were not to process vouchers or issue warrants under them.
Lawrence E. Klinger sought leave to file an original mandamus action in this court to compel the Auditor to implement these programs. (No. 45250.) The court denied leave to file the original action and suggested that an action be brought in the circuit court so that evidence could be heard. The suggestion was followed; an action was filed, evidence was heard, and the trial judge held that two of the programs were constitutional and issued the writ of mandamus with respect to them. He found the third program to be unconstitutional. Each party appealed from the adverse portion of the judgment, and the appeals were consolidated. After the case had been argued in this court it was held, awaiting the decision of the Supreme Court of the United States in cases that presented similar issues. Those cases were decided on June 25, 1973.
In so far as the validity of these statutes under the constitution of Illinois is concerned, our decision in this case is controlled by Board of Education v. Bakalis (1973), 54 Ill.2d 448, which held that section 3 of article X of the Illinois constitution of 1970 imposes restrictions concerning the establishment of religion that are identical to those imposed by the first amendment to the constitution of the United States. Thus, any statute which is valid under the first amendment is also valid under the constitution of Illinois. The effect of the decisions of the Supreme Court of the United States under the Establishment Clause was recently thus described: "Taken together these decisions dictate that to pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, e.g., Epperson v. Arkansas, 393 U.S. 97 (1968), second, must have a primary effect that neither advances nor inhibits religion, e.g., McGowan v. Maryland, supra [366 U.S. 420 (1961)]; School District of Abington Township v. Schempp, 374 U.S. 203 (1963), and, third, must avoid excessive government entanglement with religion, e.g., Walz v. Tax Comm'n, supra [397 U.S. 664 (1970)]. See Lemon v. Kurtzman, supra [403 U.S. 602 (1971)], at 612-613; Tilton v. Richardson, 403 U.S. 672, 678 (1971)." (Committee for Public Education and Religious Liberty v. Nyquist (1973), 413 U.S. 756, 772-773, 37 L.Ed.2d 948, 962-963, 93 S.Ct. 2955, 2965.) These, then, are the standards against which the statutes before us are to be measured.
We consider first Public Act 77-1890, the title of which is: "An Act to promote the education of the children of this State, who attend nonpublic schools and who are members of low income families, by providing for State grants to parents to help them pay for their children's education, thereby to serve a public purpose * * *." The short title of this Act is the Nonpublic State Parental Grant Plan for Children of Low Income Families Act. The Act included legislative findings that:
"(4) [Certain `severe and continuing social problems'] are due in large part to the failure of the public elementary and secondary schools in economically depressed areas of low income population to adequately educate Illinois youth and to prepare them to assume economically and socially responsible positions in their communities;
(10) nonpublic schools, by providing instruction to children coming from economically depressed areas of our State, make an important contribution to the alleviation of this crisis facing our citizenry;
(12) * * * nonpublic schools also relieve the State of a significant financial burden which if left unchecked, would result in an intolerable financial and educational burden to the State;
(14) * * * there has been a continuing decline in the enrollment in nonpublic schools in low income population areas that seriously threatens the continued existence of numerous nonpublic schools in such low income population areas;
(17) [if continued decreases in enrollments force the closing of a significant proportion of nonpublic schools in low income population areas,] the consequence of this sudden influx of masses of new students into the public schools, already grossly overburdened, understaffed, and overcrowded, would be a totally chaotic and unacceptable condition in the public schools in low income population areas resulting in those schools being completely unable to perform their vitally important function of educating the students enrolled therein;
(19) the State has the right and duty, in order to promote the future well-being of all its citizens and particularly those who are economically and socially disadvantaged, to provide State grants to low income parents to help them pay for the education of their children in nonpublic schools; such grants serve a public purpose." P.A. 77-1890, sec. 2; Ill. Rev. Stat., 1972 Supp., ch. 122, par. 1002.
Sections 4 and 8 of Public Act 77-1890 provide:
"Under this Act, the parent of any child attending a nonpublic school is entitled, as partial payment for the expenses incurred in providing schooling, to a yearly per child State grant. This per child State grant shall be equal to the actual per pupil amount contributed by the State, as provided for in Sections 18-8 to 18-10 of `The School Code', to the public school district within which the particular nonpublic school child resides. State grant payments, provided for in this Act, shall be made semi-annually.
This Act is limited to parents whose family income is less than $3,000 per year, or whose annual family income is in excess of $3,000 per year from payments under the program of aid to families with dependent children under the Illinois plan approved under Title IV of the Social Security Act." P.A. 17-1890, sec. 4; Ill. Rev. Stat., 1972 Supp., ch. 122, par. 1004.
"* * * Each certified amount shall be made payable jointly to the applying parent and the nonpublic school to which the particular parental application pertains." P.A. 77-1890, sec. 8; Ill. Rev. Stat., 1972 Supp., ch. 122, par. 1008.
A companion bill (P.A. 77-1893) appropriated $4.5 million to make these payments.
In Committee for Public Education and Religious Liberty v. Nyquist (1973), 413 U.S. 756, 37 L.Ed.2d 948, 93 S.Ct. 2955, the Supreme Court held invalid a New York tuition-grant program for low-income families which cannot be distinguished from that provided in Public Act 77-1890. Concerning that program the court said: "There has been no endeavor `to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former.' Lemon v, Kurtzman, supra, at 613. 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 unexceptional, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions." (413 U.S. 756, 783, 37 L.Ed.2d 948, 968-969, 93 S.Ct. 2955, 2970-71.) Public Act 77-1890 is subject to the constitutional objections that invalidated the New York statute, and it is also invalid.
The second of the programs is contained in Public Act 77-1891. The title of this Act is: "An Act to promote the education of the children of this State who attend nonpublic schools by providing for State grants to parents to help them pay for their children's education, thereby to serve a public purpose * * *." The short title is the Nonpublic State Parental Grant Act. The Act contains legislative findings that:
"(2) nonpublic education in the State of Illinois today, as during past recent decades, bears the burden of educating a large percentage of all elementary and secondary school pupils in the State of Illinois; that the requirements of the compulsory school attendance laws of the State of Illinois are fulfilled through nonpublic education;
(5) government support of nonpublic education contributes to the pluralism of American society by enabling parents more readily to determine the kind of education that their children shall receive;
(7) if a majority of parents of the present nonpublic school population decide to remove their children to the public schools of Illinois, an intolerable financial burden to the public would result as well as school stoppages and long term derangement and impairment of education in Illinois;
(8) this hazard to the education of children may be substantially reduced and all education in Illinois may be improved through the providing, as specified herein, of certain State textbook grants and auxiliary services to ...