DOCUMENT RESUME

ED 359 636 EA 025 072

AUTHOR Ackerman, David M.TITLE Choice Programs and State Constitutions: The

Inclusion of Sectarian Schools. CRS Report forCongress.

INSTITUTION Library of Congress, Washington, D.C. CongressionalResearch Service.

REPORT NO CRS-92-260-APUB DATE 2 Mar 92NOTE 25p.PUB TYPE Reports Descriptive (141)

EDRS PRICE MFO1 /PCO1 Plus Postage.DESCRIPTORS Compliance (Legal); Constitutional Law; Elementary

Secondary Education; *Federal Aid; *PrivateEducation; Private Schools; *School Choice; StateAction; *State Aid; *State Legislation

ABSTRACTThis report addresses the issue of the extent to

which state constitutions permit sectarian schools to be included ina choice program. The issue has arisen in connection with federalproposals to fund school-choice programs subject to the law of eachstate. If the question is considered without reference to federalfunding, the inclusion of sectarian schools in choice programs wouldseem to be clearly permissible in 12 states, explicitly prohibited in1, and constitutionally dubious in 6. However, if considered withreference to federal funding, it is uncertain whether any statesother than Missouri and Virginia would prohibit sectarian schoolsfrom participating in a choice program. This report sets forth thepertinent constitutional provisions and interpretations of the 38states that have provisions of the types described and draws suchgeneral conclusions as the present state of the law permits. (LMI)

***********************************************************************

Reproductions supplied by EDRS are the best that can be madefrom the original document.

***********************************************************************

92-260 A

ti

CRS Report for Con ss

ay-.\

The Inclusion of Sectarian Schoolsc.4

Choice Programs and State Constitutions:

U S DEPARTMENT Of EDUCATION()awe or E ducal,onai Research and Improvement

ED A TIONAL RESOURCES INFORMATIONCENTER IERICI

Thrs document has been rewoducecl aS,efewee from Ine De's°n or organizationongrnatmg itMmo, changes na.e teen made to .reprovereproductron ovally

Pomts ot n.ew or OtIen.onS slated rn this documeal do not necessanly represent ofhoinOE RI positron or policy

David M. AckermanLegislative Attorney

American Law Division

March 2, 1992

I . 1

CRS

The Congressional Research Service works exclusively for the Congress, conducting research, analyzinglegislation, and providing information at the request of committees, Members, and their staffs.

The Service makes such research available, without partisan bias, in many forms including studies, reports,compilations, digests, and background briefings. Upon request CRS assists committees in analyzinglegislative proposals and issues, and in assessing the possible effects of these proposals and their alternatives.The Service's senior specialists and subject analysts are also available for personal consultations in theirrespective fields of expertise.

1

CHOICE PROGRAMS AND STATE CONSTITUTIONS:THE INCLUSION OF SECTARIAN SCHOOLS

SUMMARY

This report addresses the issuc of the extent to which State constitutionspermit sectarian schools to be included in a choice program. The issue hasarisen in connection with Federal proposals to fund school choice programssubject to the law of each State.

State constitutional provisions that appear most pertinent to this issue arethose which prohibit a State from appropriating money or property to aid orsupport a religious sect or for a religious purpose, to aid a sectarian school, orto aid a private school regardless of whether it is sectarian or not. Theconstitutions of thirty-eight States have such provisions, but analysis of theseprovisions makes clear only that generalization about their effect is veryuncertain.

If the question is considered without reference to Federal funding, theinclusion of sectarian schools would seem to be permissible in the twelve Statesthat do not have State constitutional provisions of the types described- -Arkansas, Connecticut, Iowa, Louisiana, Maine, Maryland, New Jersey, NorthCarolina, Rhode Island, Tennessee, Vermont, and West Virginia. Sectarianschools might also be included, although the matter is less certain, in thoseStates that have construed their constitutions, without contrary construction,either to permit some sort of voucher system--New Mexico--or to allow suchindirect assistance to sectarian schools as bus transportation and textbook loanprograms for sectarian schoolchildren--Indiana, Kentucky, Minnesota,Mississippi, New Hampshire, Ohio, and Pennsylvania. At the other end of thespectrum sectarian schools would seem to be explicitly prohibited fromparticipating in a choice program in Michigan and implicitly in the six otherStates that bar indirect as well as direct assistance to sectarian schools--Florida,Georgia, Missouri, Montana, New York, and Oklahoma. Their participationmight also be doubtful in those States that have construed their constitutionsto forbid some variant of a tuition assistance program and/or such indirectassistance programs as bus transportation or textbook loan programs forsectarian schoolchildren--Alabama, Alaska, Georgia, Hawaii, Idaho, Nebraska,Oklahoma, South Carolina, South Dakota, Texas, Virginia, and Washington.

But if the question is considered with reference to choice programs that areFederally funded, Lectarian schools would seem to be prohibited fromparticipating only in Missouri and, perhaps, Virginia. The reason is that anumber of States have construed their constitutional provisions not to apply toFederally funded programs. Eight States have explicitly so held, and that mightbe the case in the other States as well, except for Missouri and, perhaps,Virginia.

This report sets forth the pertinent constitutional provisions andinterpretations of the thirty-eight States that have provisions of the typesdescribed and draws such general conclusions as the present state of the lawpermits.

4

TABLE OF CONTENTS

INTRODUCTION 1

SUMMARY ANALYSIS 1

PROVISIONS OF THE INDIVIDUAL STATES 4ALABAMA 4ALASKA 4ARIZONA 5CALIFORNIA 5

COLORADO 6

DELAWARE 7

FLORIDA 7

GEORGIA 7

HAWAII 7IDAHO 8ILLINOIS 8

INDIANA 9KANSAS 9KENTUCKY 9

MASSACHUSETTS 9

MICHIGAN 10MINNESOTA 11

MISSISSIPPI 11

MISSOURI 12MONTANA 12NEBRASKA 13NEVADA 13NEW HAMPSHIRE 13NEW MEXICO 14NEW YORK 14NORTH DAKOTA 14OHIO 15

OKLAHOMA 15

OREGON 16

PENNSYLVANIA 16

SOUTH CAROLINA 16SOUTH DAKOTA 16

TEXAS 17UTAH 17VIRGINIA 18WASHINGTON 19WISCONSIN 19

WYOMING 20

CHOICE PROGRAMS AND STATE CONSTITUTIONS:THE INCLUSION OF SECTARIAN SCHOOLS

INTRODUCTION

One issue that has arisen in the ongoing debate about school choiceprograms concerns the extent to which State constitutions might prohibit suchprograms from including sectarian schools. One provision of H.R. 3320 asreported by the House Education and Labor Committee, for instance,' wouldhave permitted local educational agencies to use grants under the bill for, interalia, "choice programs consistent with State law and State constitutions whichpermit parents to select the school their children will attend."' This reportaddresses the issue of the extent to which State constitutions would permitsectarian schools to be included in a choice program.

SUMMARY ANALYSIS

Pertinent church-State provisions in State constitutions fall into six generalcategories,3 as follows: (1) provisions that simply replicate the language of theestablishment clause of the First Amendment; (2) provisions that state that noperson shall be compelled to support any ministry without his or her consent;(3) provisions that prohibit religious preference or discrimination;(4) provisions that prohibit the State from appropriating money or property toaid or support a religious sect or for a religious purpose; (5) provisions thatprohibit the State from appropriating money or property to a religious school;and (6) provisions that prohibit the State from aiding or supporting any privateschool, whether sectarian or secular. The first three categories of provisionshave generally not been construed differently than the establishment clause ofthe First Amendment' and thus, unless State courts begin to construe themdifferently, would not seem to posts an obstacle to a properly designed choiceprogram that included sectarian schools. But the more specific provisions of the

2

H.R. 3320, 102d Cong., 1st Sess. (1991); H. Rept. No. 102-294 (Nov. 7,

Id., § 8009(4).

a This categorization is based upon, but modifies slightly, that set forthin "Beyond the Establishment Clause: Enforcing Separation of Church andState Through State Constitutional Provisions," 71 Virginia Law Review 625-653 (1985).

Id., at 632.

CRS-2

latter three categories on their face seem to require a zharper separation ofchurch and State than the establishment clause and could have implications fora choice program.

Nonetheless, an examination of the provisions in the latter three categoriesmakes clear only that generalization about their effect on a choice program isuncertain at best. Thirty-eight States have one or more of the provisions in thelast three categories. In one State--Michigan--the provisions explicitly bartuition vouchers. In six States--Florida, Georgia, Missouri, Montana, New York,and Oklahoma--the provisions, without mentioning tuition vouchers, explicitlyprohibit indirect as well as direct assistance to sectarian schools. In sixadditional States--Alabama, Alaska, South Carolina, Texas, Virginia, andWashington--the provisions have been construed, without conflictinginterpretations, to bar some variant of a tuition grant or voucher system. Inanother six States--Georgia, Hawaii, Idaho, Nebraska, Oklahoma, and SouthDakota--the provisions have been construed to bar either or both bustransportation for sectarian school students and/or the loan of textbooks to suchstudents--the kinds of indirect assistance that have been upheld under theestablishment of religion clause of the First Amendment and that haveforeshadowed constructions upholding tuition grant and tax programs benefitingsectarian schools.'

On the other hand, in one State--New Mexico--an Attorney General'sopinion has explicitly construed the pertinent provisions to allow some variantof a voucher system. In seven States--Indiana, Kentucky, Minnesota,Mississippi, New Hampshire, Ohio, and Pennsylvania--the provisions have beeninterpreted, without conflicting constructions, to permit either a bustransportation program or textbook loan program for sectarian schoolchildren,or both. However, in four States--Arizona, California, Illinois, andMassachusetts--the provisions have received possibly conflicting constructions,having been interpreted to permit a bus transportation program but to prohibiteither a textbook loan program or a particular tuition voucher program or both.

Notwithstanding these observations, it is not certain except in one and,perhaps, two of these States that a Federally-funded choice program that

Everson v. Board of Education, 330 U.S. 1 (1947) (bus transportationupheld) and Board of Education v. Allen, 392 U.S 236 (1968) (textbook loanprogram). These decisions were predicated on what is generally known as the"child benefit" theory, i.e., that they were constitutional because their benefitwas primarily to the sectarian school child and not to the school itself. Thistheory, although not explicitly relied upon, clearly lay in the background of theSupreme Court's subsequent decisions upholding certain forms of tax benefitand tuition grant programs to sectarian school students and their parents. See,Mueller v. Allen, 463 U.S. 388 (1983) (tax deductions for educational expensesincurred by parents of both public and private schoolchildren upheld) andWitters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986)(vocational rehabilitation grant to blind student for use in training for areligious vocation at a Bible college upheld).

CRS-3

included sectarian schools would be prohibited. In eight States--Colorado,Georgia, Massachusetts, Michigan, Montana, Nebraska, Nevada, and NewMexico--the pertinent constitutional provisions either explicitly or byconstruction do not apply to Federal funds received by the State. Thus, in thoseStates it appears clear that a Federally funded choice program that includedsectarian schools could be implemented. At the other end of the spectrum, onlyMissouri and Wisconsin have by formal decision held their State constitutionalrestrictions to apply to Federal funds, although Virginia reportedly has done soas well under the Chapter I program of the Elementary and SecondaryEducation Act.6 Missouri has a particularly strict history of church-Stateseparation, and thus it seems likely that the inclusion of sectarian schools in aFederally funded choice program would be unconstitutional under the provisionsof its laws. That may be the case with respect to Virginia as well, as itsprovisions have been construed to bar tuition assistance to students attendingsectarian schools and it has invoked the bypass provision of Chapter I. But theVirginia courts reached that decision without ruling on the child benefit theoryas such and thus that conclusion is not entirely certain. It is also not certainwith respect to Wisconsin or with respect to the remaining twenty-seven Statesthat have not opined on whether Federal funds are subject to their Stateconstitutions.

In sum, the effect of State constitutions on a Federally funded choiceprogram appears to be very problematic. If the question is considered withoutreference to Federal funding, the inclusion of sectarian schools in choiceprograms would seem to be clearly permissible in the twelve States that do nothave State constitutional provisions falling within the last three categoriesnoted above--Arkansas, Connecticut, Iowa, Louisiana, Maine, Maryland, NewJersey, North Carolina, Rhode Island, Tennessee, Vermont, and West Virginia.With less certainty, it also appears that sectarian schools might be included inchoice programs in those States that have construed their constitutions, withoutcontrary constructions, either to permit some sort of voucher system--NewMexico--or to allow such indirect assistance programs as bus transportation ortextbook loans--Indiana, Kentucky, Minnesota, Mississippi, New Hampshire,Ohio, and Pennsylvania. At the other end of the spectrum the inclusion ofsectarian schools would seem to be explicitly prohibited in Michigan and to beconstitutionally dubious in the six other States that bar indirect as well as directassistance--Florida, Georgia, Missouri, Montana, New York, and Oklahoma.Their inclusion might also be doubtful in those States that have construed theirconstitutions to prohibit either some variant of a voucher program or suchindirect assistance programs as bus transportation or textbook loans--Alabama,Alaska, Georgia, Hawaii, Idaho, Nebraska, Oklahoma, South Carolina, South

6 Chapter I requires that educationally deprived children in privateelementary and secondary schools be served by the remedial and enrichmentprograms it authorizes and includes a bypass provision to permit such servicesto be offered if a local educational agency is constitutionally unable to providesuch services itself. See 20 U.S.C. 2727(b) (1988). Reportedly, only Missouriand Virginia have required that the bypass provision be invoked.

CRS-4

Dakota, Texas, Virginia, and Washington. Where the remaining States fall onthe spectrum is too uncertain to speculate.

But if the question is considered with reference to Federal funding, then itis uncertain whether in any State but Missouri and, perhaps, Virginia, sectarianschools would be prohibited from joining in a choice program. Theirparticipation might be barred in other States, but the present state of the lawsimply does not permit firm conclusions to be drawn on the matter.

PROVISIONS OF THE INDIVIDUAL STATES

The following list details the State constitutional provisions that wouldseem to have the greatest import for the inclusion of sectarian schools in achoice program. The list includes only those States that have in theirconstitutions one or more of the provisions described in the last three categoriesabove, i.e., provisions that prohibit the appropriation of money for a religioussect or a religious purpose, for a religious school, or for a private school. It doesnot include, in other words, those States whose constitutions include provisionsdescribed in the first three categories above, i.e., provisions that replicate, or aregenerally construed to have the same effect as, the First Amendment and thatseem to po.,,.= barrier to properly designed choice programs.' The"Comments" column in the following listing includes judicial and administrativeinterpretations of the cited provisions that would seem to have someimplications for a choice program and notes where those interpretations appearto be dispositive of the issue:

State

ALABAMA

ALASKA

Pertinent Constitutional CommentsProvision(s)

"No money raised for thesupport of the public schoolsshall be appropriated to orused for the support of anysectarian or denominationalschool." Article XIV, § 263.

"No money shall be paid frompublic funds for the directbenefit of any religious or

State Supreme Court hasopined that this provisionwould be violated by aprogram of tuition grants tostudents attending privatecolleges in the State, some ofwhich would be sectarian.Opinion of the Justices, 291Ala. 301, 280 So.2d 547 (1971).

Although the proscription islimited to "direct benefits," ithas been construed by the

7 To repeat, those States are Arkansas, Connecticut, Iowa, Louisiana,Maine, Maryland, New Jersey, North Carolina, Rhode Island, Tennessee,Vermont, and West Virginia.

9

ARIZONA

CALIFOR-NIA

CRS-5

other private educationalinstitution." Article VII, § 1.

"No public money or propertyshall be appropriated for orapplied to any religiousworship, exercise, orinstruction, or to the supportof any religious establishment."Article 2, § 12.

"No tax shall be laid orappropriation of public moneymade in aid of any church, orprivate or sectarian school, orany public service corporation."Article 9, § 10.

"Neither the Legislature, norany county, city and county,township, school district, orother municipal corporation,shall ever make anappropriation, or pay from anypublic fund whatever, or grantanything to or in aid of anyreligious sect, church, creed, orsectarian purpose, or help tosupport or sustain any school,college, university, hospital, orother institution controlled byany religious creed, church, orsectarian denomination

:J

Alaska Supreme Court toprohibit both the publicsubsidy of the transportationof school children to nonpublicschools and a tuition grantprogram to students attendingprivate colleges in the State.See Matthews v. Quinton, 362P.2d 932 (Alaska 1961), cert.den., 368 U.S. 517 (1962) andSheldon Jackson College v.State, 599 P.2d 127 (Alaska1979), respectively.

The State Attorney Generalhas opined that theseprovisions would not beviolated by a program allowingan income tax deduction tothe parents of public andprivate schoolchildren for thecosts of tuition,transportation, and seculartextbooks or by a programproviding bus transportationto parochial schoolchildrenbut would be violated by aprogram that paid tuition to aprivate parochial school. SeeOp.Atty.Gen. No. 183-140,Op.Atty.Gen. No. 182-013, andOp.Atty.Gen. No. 181-049,respectively.

S..ate courts have construedthese provisions not toprohibit the transportation ofsectarian schoolchildren onpublic school buses but toprohibit a program loaningsecular textbooks to them, andState Attorney General hasopined that secular privateschools could be eligible forvoucher funding butpervasively sectarian schoolscould not under theseprovisions. See Bowker v.Baker, 73 Cal.App.2d 653, 167

CRS-6%.

whatever; nor shall any grantor donation of personalproperty or real estate ever bemade by the state, or any city,city and county, town, or othermunicipal corporation for anyreligious creed, church, orsectarian purpose whatever;provided, that nothing in thissection shall prevent theLegislature granting aidpursuant Section 3 ofArticle XVI." Article 16, § 5.

"No public money shall ever beappropriated for the support ofany sectarian or6enominational school, or anyschool not under the exclusivecontrol of the officers of thepublic schools...." Article 9, §8.

COLORADO "No appropriations shall bemade for charitable, industrial,educational or benevolentpurposes to any person,corporation or community notunder the absolute control ofthe state, nor to anydenominational or sectarianinstitution or association."Article V, § 34.

"Neither the general assembly,nor any county, city, town,township, school district orother public corporation, :hallever make any appropriation,or pay from any public fund ormoneys whatever, anything inaid of any church or sectariansociety, or for any sectarianpurpose, or to help support orsustain any school, academy,seminary, college, university orother literary or scientificinstitution, controlled by anychurch or sectarian

P.2d 256 (1946); CaliforniaTeachers Assn. v. Riles, 29Ca1.3d 794, 176 Cal.Rptr. 300,632 P.2d 953 (1981); and 64Ops.Atty.Gen. 61 (2-5-81).

State Supreme Court hasconstrued Article V, § 34, toapply only to State funds andas not invalidating a tuitiongrant program available toneedy students at privatecolleges that were notpervasively sectarian. See Inre House, 23 Colo. 87, 46 P.117 (1896) and AmericansUnited for Separation ofChurch and State Fund, Inc.v. State, 648 P.2d 1072 (Colo.1982).

CRS-7

denomination whatsoever; norshall any grant or donation ofland, money or other personalproperty, ever be made by thestate, or any such publiccorporation to any church, orfor any sectarian purpose."Article IX, § 7.

DELAWARE "No portion of any fund nowexisting, or which mayhereafter be appropriated, orraised by tax, for educationalpurposes, shall be appropriatedto, or used by, or in aid of anysectarian, church ordenominational school...."Article X, § 3.

FLORIDA

GEORGIA

"....No revenue of the state orany political subdivision oragency thereof shall ever betaken from the public treasurydirectly or indirectly in aid ofany church, sect, or religiousdenomination or in aid of anysectarian institution." Article1, § 3.

"No money shall ever be takenfrom the public treasury,directly or indirectly, in aid ofany church, sect, cult, orreligious denomination or ofany sectarian institution."Article 1, § 2, 11 7.

4

State Supreme Court hasconstrued this section toprohibit the public provisionof bus transportation tostudents attending sectarianschools. Opinion of theJustices, 59 Del. 181, 216 A 2d668 0 966). (Subsequently,the state Constitution wasamended to permit suchtransportation. See Article X,§ 5.)

State Attorney General hasconstrued this provision to bestronger than the FirstAmendment, to prohibit thepublic subsidy oftransportation for studentsattending private schools, andnot to proscribe the State'sparticipation in an exclusivelyFederally funded programproviding resources to privateas well as public schools. See1960-61 Op. Att'y Gen. 349,1945-47 Op. Att'y Gen. 222,and 1965-66 Op. ,..tt'y Gen.No. 65-4, respectively.

HAWAII

IDAHO

ILLINOIS

CRS-8

"...nor shall public funds beappropriated for the support orbenefit of any sectarian orprivate educationalinstitution." Article X, § 1.

"Neither the legislature norany county, city, town,township, school district, orother public corporation shallever make any appropriation,or pay from any public fund ormoneys whatever, anything inaid of any church or sectarianor religious society, or for anysectarian or religious purpose,or to help support or sustainany school, academy, seminary,college, university or otherliterary or scientificinstitution, controlled by anychurch, sectarian or religiousdenomination whatsoever; norshall any grant or donation ofland, money or other personalproperty ever be made by thestate, or any such publiccorporation, to any church orfor any sectarian or religiouspurpose...." Article 9, § 5.

Neither the General Assemblynor any county, city, town,township, school district, orother public corporation, shallever make any appropriationor pay from any public fundwhatever, anything in aid ofany church or sectarianpurpose, or to help support orsustain any school, academy,seminary, college, university,

State Supreme Court hasconstrued this provision toprohibit the public subsidy ofbus transportation for privateschool students and to rejectthe child benefit theorysometimes used in FirstAmendment jurisprudence touphold aid to sectarian schoolstudents or parents. Spears v.Honda, 51 Haw. 1, 449 P.2d130 (1968).

State Supreme Court hasconstrued this provision toprohibit the public subsidy ofbus transportation forsectarian schoolchildren.Epeldi v. Engelking, 94 Idaho390, 488 P.2d 860 (1971), cert.den., 406 U.S. 957 (1972).

State courts have construedthis provision to prohibit aState program giving low-income parents of childrenattending private schoolsgrants equal to the amountthe State spent on publicschool students but to allowpublic bus transportation ofprivate schoolchildren. SeePeople ex rel. Klinger v.

INDIANA

KANSAS

CRS-9

or other literary or scientificinstitution, controlled by anychurch or sectariandenomination whatever; norshall any grant or donation ofland, money, or other personalproperty ever be made by theState, or any such publiccorporation, to any church, orfor any sectarian purpose."Article 10, § 3.

"No money shall be drawnfrom the treasury, for thebenefit of any religious ortheological institution."Article 1, § 6.

"...No religious sect or sectsshall control any part of thepublic educational funds."Article 6, § 6(c).

KENTUCKY "No portion of any fund or taxnow existing, or that mayhereafter be raised or leviedfor educational purposes, shallbe appropriated to, or used by,or in aid of, any church,sectarian or denominationalschool." Section 189.

MASSACHU-SETTS

No grant, appropriation or useof public money or property orloan of credit shall be made orauthorized by thecommonwealth or any politicalsubdivision thereof for thepurpose of founding,maintaining or aiding anyinfirmary, hospital, institution,primary or secondary school, orcharitable or religiousundertaking which is not

Lk

Howlett, 56 I..2d 1, 305 N.E.2d129 (1973) and Board ofEducation, School District No.142, Cook County v. Bakalis,54 I..App. 448, 299 N.E.2d 737(1973).

State Attorney General hasconstrued this provision notto prohibit the provision ofbus transportation toparochial schoolchildren.1967, No. 3, at 9.

State Supreme Court hasconstrued this provision toprohibit public bustransportation of privateschool students and theprovision of textbooks innonpublic schools. SeeSherrard v. Jefferson, 294 Ky.469, 171 S.W.2d 963 (1942)and Fannin v. Williams, 655S.W.2d 480 (Ky. 1983),respectively.

State Supre.ie Judicial Courthas construed this provisionto prohibit programreimbursing parents of privateschoolchildren for part of theireducational expenses. Opinionof the Justices, 357 Mass. 846,259 N.W.2d 564 (1970). StateAttorney General hasconstrued it to prohibit aState tuition grant program,to permit public bus

CRS-10

publicly owned and under theexclusive control, order andsupervision of public officers orpublic agents authorized bythe commonwealth or federalauthority or both...; and nosuch grant, appropriation oruse of public money orproperty or loan of publiccredit shall be made orauthorized for the purpose offounding, maintaining oraiding any church, religiousdenomination or society.Nothing herein contained shallbe construed to prevent thecommonwealth from makinggrants-in-aid to private highereducational institutions or tostudents or parents orguardians of studentsattending such institutions."Amended Article XVIII.

MICHIGAN "...No money shall beappropriated or drawn fromthe treasury for the benefit ofany religious sect or society,theological or religiousseminary; nor shall propertybelonging to the state beappropriated for any suchpurpose...." Article 1, § 4.

No public monies or propertyshall be appropriated or paidor any public credit utilized, bythe legislature or any otherpolitical subdivision or agencyof the state directly orindirectly to aid or maintainany private, denominational orother nonpublic, pre-elementary, elementary, orsecondary school. No payment,credit, tax benefit, exemptionor deductions, tuition voucher,subsidy, grant or loan of publicmonies or property shall be

transportation of privateschool students, and to haveno applicability to programsfinanced exclusively withFederal funds. See 6Op.Atty.Gen. 1922 at 648;Op.Atty.Gen. June 15, 1976,at 183; and Op.Atty.Gen. July11, 1966, at 37, respectively.

State Supreme Court hasconstrued second provision asallowing aid that is notprimary but only incidental toa private school's operationand as having no applicationto Federal funds. See In reAdvisory Opinion reConstitutionality of 1974 P.A.242, 394 Mich. 41, 228 N.W.2d772 (1975) and In re ProposalC., 384 Mich. 390, 185 N.W.2d9 (1971), respectively. StateAttorney General hasconstrued second provision toprohibit a tax benefit ortuition grant program for theparents of privateschoolchildren. Op.Atty.Gen.1970, No. 4715, at 183.

MINNE-SOTA

MISSISS-IPPI

CRS-11

provided, directly or indirectly,to support the attendance ofany student or the employmentof any person at any suchnonpublic school or at anylocation or institution whereinstruction is offered in wholeor in part to such nonpublicschool students. Thelegislature may provide for thetransportation of students toand from any school. Article 8,§ 2.

"...(N]or shall any money bedrawn from the treasury forthe benefit of any religioussocieties or religious ortheological seminaries."Article 1, § 16.

"In no case shall any publicmoney or property beappropriated or used for thesupport of schools wherein thedistinctive doctrines, creeds ortenets of any particularChristian or other religioussect are promulgated ortaught." Article 13, § 2.

"No law granting a donation orgratuity in favor of any personor object shall be enactedexcept by the concurrence oftwo-thirds of the memberselect of each branch of thelegislature, nor by any vote fora sectarian purpose or use."Article 4, § 66.

"No religious or other sect orsects shall ever control anypart of the school or othereducational funds of this state,nor shall any funds beappropriated toward thesupport of any sectarianschool, or to any school that at

State Supreme Court hasconstrued these provisions topermit the public subsidy ofbus transportation forparochial school students.Americans United, Inc. v.

Independent School District,288 Minn. 196, 179 N.W.2d146, appeal dism'd, 403 U.S.945 (1970).

State Supreme Court hasconstrued first provision toapply only to gifts and not toappropriations for a publicpurpose, and second provisionto permit the subsidy ofsecular textbooks used bystudents attending private orsectarian schools. See Craig v.Mercy Hospital-StreetMemorial, 45 So.2d 809(Miss.), sugg. of error overr,209 M 490, 47 So.2d 867, andChance v. Mississippi StateTextbook Rating andPurchasing Bd., 190 M 453,200 So. 706.

CRS-12

the time of receiving suchapplication is not conducted asa free school." Article 8, § 208.

MISSOURI "That no money shall ever betaken from the public treasury,directly or indirectly, in aid ofany church, sect ordenomination of religion, or inaid of any priest, preacher,minister or teacher thereof, assuch...." Article 1, § 7.

Neither the general assembly,nor any county, city, town,township, school district orother municipal corporation,shall ever make anappropriation or pay from anypublic fund whatever, anythingin aid of any religious creed,church or sectarian purpose, orto help to support or sustainany private or public school,academy, seminary, college,university, or other institutionof learning controlled by anyreligious creed, church orsectarian denominationwhatever; nor shall any grantor donation of personalproperty or real estate ever bemade by the state, or anycounty, city, town, or othermunicipal corporation, for anyreligious creed, church, orsectarian purpose whatever."Article 9, § 8.

MONTANA "(1) The legislature, counties,cities, towns, school districts,and public corporations shallnot make any direct or indirectappropriation or payment fromany public fund or monies, orany grant of lands or otherproperty for any sectarianpurpose or to aid any church,school, academy, seminary,

State Supreme Court hasconstrued these provisions tomandate a higher degree ofseparation of church and statethan that afforded by the FirstAmendment and to prohibittextbook loan and bustransportation programs, andState Attorney General hasconstrued them to apply toFederal grants to the State.See Americans United v.

Rogers, 538 S.W.2d 711 (Mo.1976), cert. den., 421 U.S. 992(1977); Mallory v. Barrera,544 S.W.2d 556 (Mo. 1976);Op.Atty.Gen. No. 31, Calloway(1-10-79); and Op.Atty.Gen.No. 102, Mallory (5-16-77).

CRS-13

college, university, or otherliterary or scientificinstitution, controlled in wholeor in part by any church, sect,or denomination. (2) Thissection shall not apply tofunds from federal sourcesprovided to the state for theexpress purpose of distributionto non-public education."Article X, § 6.

NEBRASKA "Notwithstanding any otherprovision in the Constitution,appropriation of public fundsshall not be made to anyschool or institution oflearning not owned orexclusively controlled by thestate or a political subdivisionthereof....The state shall notaccept money or property to beused for sectarian purposes;Provided, that the Legislaturemay provide that the state mayreceive money from the federalgovernment and distribute it inaccordance with the terms ofany such federal grants, but nopublic funds of the state, anypolitical subdivision, or anypublic corporation may beadded thereto." Article VII, §11.

NEVADA

NEW HAMP-SHIRE

'No public funds of any kindor character whatever, State,County, Municipal, shall beused for sectarian purpose."Article 11, § 10.

"...Provided, nevertheless, thatno money raised by taxationshall ever be granted orapplied for the use of theschools or institutions of anyreligious sect or denomination."Part 2, Article 83.

State Supreme Court hasconstrued this provision to bara program loaning textbooksto students in private schools.Gaffney v. State Department ofEducation, 192 Neb. 358, 220N.W.2d 550 (1974).

State Attorney General hasconstrued this provision not toapply to Federal funds, so longas they are kept separate.AGO 276 (11-5-1965).

State Supreme Court hasconstrued this provision toprohibit only aid that provides"more than incidental andindirect benefit to a religioussect" and to allow the publicsubsidy of textbooks and bustransportation for nonpublic

N E WMEXICO

CRS-14

"No appropriation shall bemade for charitable,educational or otherbenevolent purposes to anyperson, corporation,association, institution orcommunity, not under theabsolute control of the state...."Article IV, § 31.

"...and no part of the proceedsarising from the sale ordisposal of any lands grantedto the state by congress, or anyother funds appropriated,levied or collected foreducational purposes, shall beused for the support of anysectarian, denominational orprivate school, college oruniversity." Article XII, § 3.

NEW YORK "Neither the state nor anysubdivision thereof shall useits property or credit or anypublic money, or authorize orpermit either to be used,directly or indirectly, in aid ormaintenance, other than forexamination or inspection, ofany school or institution oflearning wholly or in partunder the control or directionof any religious denomination,or in which anydenominational tenet ordoctrine is taught, but thelegislature may provide for thetransportation of children toand from any school orinstitution of learning."Article XI, § 3.

NORTHDAKOTA

"No money raised for thesupport of the public schools of

schoolchildren. Opinion of theJustices, 109 N.H. 578, 258A.2d 343 (1969).

State Attorney General hasconstrued first provision notto apply to Federal fundsreceived by the State, andsecond provision to permit avoucher system allowingparents of exceptional childrento purchase services from aprivate school. See, 1975 Op.Att'y Gen. No. 75-10 and 1976Op. Att'y Gen. No. 76-6.

OHIO

CRS-15

the state shall be appropriatedto or used for the support ofany sectarian school." ArticleVIII, § 5.

"The general assembly shallmake such provisions, bytaxation, or otherwise, as, withthe income arising from theschool trust fund, will secure athorough and efficient systemof common schools throughoutthe state; but no religious orother sect, or sects, shall everhave any exclusive right to, orcontrol of, any part of theschool funds of this state."Article VI, § 2.

OKLAHOMA No public money or propertyshall ever be appropriated,applied, donated, or used,directly or indirectly, for theuse, benefit, or support of anysect, church, denomination, orsystem of religion, or for theuse, benefit, or support of anypriest, preacher, minister, orother religious teacher ordignitary, or sectarianinstitution as such." Article 2,§ 5.

State Supreme Court hasconstrued this provision not toprohibit programs thatprovide indirect benefits tosectarian schools and hasupheld the public subsidy ofthe bus transportation ofparochial schoolchildren SeeProtestant and OtherAmericans United v. Essex, 28O.S.2d 79, 275 N.E. 2d 603(1971) and Honohan v. Holt,46 O.S.2d 79, 244 N.E.2d 537(1968).

State Supreme Court hasconstrued this provision toprohibit the transportation ofparochial schoolchildren ontublic school buses, and StateAttorney General hasconstrued it to prohibitadministration of Federalconservation grants andcertain Federal educationgrants which were to beallocated in part to privatesectarian schools but to allowa local education agency toadminister Chapter I grantsthat required inclusion ofprivate schoolchildren inremedial education programs.See, Gurney v. Ferguson, 190Okl. 254, 122 P.2d 1002(1942), appeal dism'd, 317U.S. 588 (1943); Op.Atty.Gen.No. 79-132 (May 7, 1979);Op.Atty.Gen. No. 82-68(March 10, 1982); andOp.Atty.Gen. No. 82-169 (June7, 1982).

OREGON

PENN-SYLVANIA

SOUTHCAROLINA

SOUTHDAKOTA

CRS-16

"No money shall be drawnfrom the Treasury for thebenefit of any religeous (sic),or theological institution...."Article I, § 5.

"No money raised for thesupport of the public schools ofthe Commonwealth shall beappropriated to or used for thesupport of any sectarianschool." Article 3, § 15.

"No appropriation shall bemade for charitable,educational or benevolentpurposes to any person orcommunity nor to anydenominational and sectarianinstitution, corporation orassociation: Provided, Thatappropriations may bemade...in the form ofscholarship grants or loans forhigher educational purposes toresidents of theCommonwealth enrolled ininstitutions of higherlearning...." Article 3, § 29.

"No money shall be paid frompublic funds nor shall thecredit of the State or any of itspolitical subdivisions be usedfor the direct benefit of anyreligious or other privateeducational institution."Article XI, § 4.

"...No money or property of thestate shall be given orappropriated for the benefit ofsectarian or religious society orinstitution." Article VI, § 3.

"No appropriation of lands,money or other property orcredits to aid any sectarianschool shall ever be made by

These provisions have beenconstrued to allow the publicsubsidy of bus transportationof, and loan of seculartextbooks to, sectarianschoolchildren. SeeSpringfield School District,Delaware County v.Department of Education, 483Pa. 539, 397 A.2d 1154 (1979),appeal disri'd, 443 U.S. 901(1980) and Meek v. Pittenger,374 F.Supp. 639 (E.D. Pa.1974), aff'd in part, rev'd inpart on other grounds, 421U.S. 349 (1975).

State Supreme Court has heldthis provision to be violated bya program of tuition grantsfor students attending privatesectarian colleges in the State.Hartness v. Patterson, 255 S.C.503, 179 S.E.2d 907 (1971).

State Supreme Court hasconstrued these provisions tobe more restrictive than FirstAmendment and to prohibitthe loan of secular textbooksto sectarian schoolchildrenand the payment of tuition ata sectarian college, and StateAttorney General has opinedthat the provisions bar as well

21

CRS-17

the state, or any county ormunicipality within the state,nor shall the state or anycounty or municipality withinthe state accept any grant,conveyance, gift or bequest oflands, money or other propertyto be used for sectarianpurposes...." Article VIII, § 16.

"No money shall beappropriated, or drawn fromthe Treasury for the benefit ofany sect, or religious society,theological or religiousseminary; nor shall propertybelonging to the State beappropriated for any suchpurposes." Article 1, § 7.

"...Except as provided by thissection, no law shall ever beenacted appropriating any partof the permanent or availableschool fund to any otherpurpose whatever; nor shallthe same, or any part thereofever be appropriated to or usedfor the support of anysectarian school...." Article 7, §5.

"...No public money or propertyshall be appropriated for orapplied to any religiousworship, exercise orinstruction, or for the supportof any ecclesiasticalestablishment...." Article I, § 4.

"Neither the state of Utah norits political subdivisions maymake any appropriation for thedirect support of any school oreducational institutioncontrolled by any religiousorganization." Article XI, § 9.

bus transportation forstudents attending sectarianschools. See Elbe v. YanktonIndependent School District,372 N.W.2d 113 (S.D. 1985);Synod of Dakota v. State, 2S.D. 366, 50 N.W. 632 (1891);Attorney General Report1931-32, p. 261; and AttorneyGeneral Report 1951-52, P. 45.

State Attorney General hasconstrued these provisions toprohibit the transportation ofparochial schoolchildren onpublic school buses and theuse of a vocationalrehabilitation grant to paytuition at a sectarian school.See Op.Atty.Gen. 1941, No. 0-4220; Op.Atty.Gen. 1946, No.0-7128; and Op.Atty.Gen.1940, No. 0-2412.

VIRGINIA

CRS-18

"The General Assembly shallnot make any appropriation ofpublic funds, personalproperty, or real estate to anychurch or sectarian society, orany association or institutionof any kind whatever which isentirely or partly, directly orindirectly, controlled by anychurch or sectarian society.Nor shall be the GeneralAssembly make any likeappropriation to any charitableinstitution which is not ownedor controlled by theCommonwealth." Article IV, §16.

"No appropriation of publicfunds shall be made to anyschool or institution oflearning not owned orexclusively controlled by theState or some politicalsubdivision thereof; provided,first, that the GeneralAssembly may, and thegoverning bodies of the severalcounties, cities and towns may,subject to such limitations asmay be imposed by the GeneralAssembly, appropriate fundsfor educational purposes whichmay be expended infurtherance of elementary,secondary, collegiate, orgraduate education of Virginiastudents in public andnonsectarian private schoolsand institutions of learning, inaddition to those owned orexclusively controlled by theState or any such county, cityor town; second....; third, thatcounties, cities, towns anddistricts may makeappropriations to nonsectarianschools of manual, industrialor technical training and also

These provisions have beenjudicially construed to be morerestrictive than the FirstAmendment and to forbidtuition payments to sectarianelementary and secondaryschools, but to allow thepayment of tuition and theincidental expenses of ahandicappedstudentattendingan out-of-state religiouscollege on the grounds thebenefit was to the student andnot to the State. See, Almondv. Day, 197 Va. 419, 89 S.E.2d851 (1955) and Phan v.

Commonwealth of Virginia,806 F.2d 516 (4th Cir. 1986).

WASHING-TON

CRS-19

to any school or institution oflearning owned or exclusivelycontrolled by such county, city,town or school district."Article VIII, § 10.

"The General Assembly mayprovide for loans to, andgrants to or on behalf of,. tudents attending nonprofitin'.titutions of highereducation in theCommonwealth whose primarypurpose is to provide collegiateor graduate education and notto provide religious training ortheological education." ArticleVIII, § 11.

"...No public money or propertyshall be appropriated for orapplied to any religiousworship, exercise, orinstruction, or the support ofany religious establishment...."Article 1, § 11.

"All schools maintained orsupported wholly or in part bythe public funds shall beforever free from sectariancontrol or influence." Article 9,§ 4.

WISCONSIN "...[N]or shall any money bedrawn from the treasury forthe benefit of religioussocieties, or religious or

State Supreme Court hasconstrued these provisions tobe more restrictive than theFirst Amendment and toprohibit the bustransportation of studentsattending sectarian schools,the payment of tuition toneedy students attendingpublic and nonpublicelementary and secondaryschools, and the use of avocational rehabilitation grantby a blind student to obtaintraining in a religious vocationfrom a religious college. See,Visser v. Nooksack ValleySchool District, 33 Wash.2d699, 207 P.2d 198 (1949);Weiss v. Bruno, 82 Wash.2d199, 509 P.2d 973 (1973); andW:tters v. State Commissionfor the Blind, 112 Wash.2d363, 771 P.2d 1119, cert. den.,110 S.Ct. 147 (1989).

State Supreme Court hasconstrued first provision notto bar all aid programs"merely because there is some

WYOMING

CRS-20

theological seminaries." ArticleI,§ 18.

"Nothing in the constitutionshall prohibit the legislaturefrom providing for the safetyand welfare of children byproviding for thetransportation of children toand from any parochial orprivate school or institution oflearning." Article 1, § 23.

"No money of the state shallever be given or appropriatedto any sectarian or religioussociety or institution." Article1, § 19.

"No appropriation shall bemade for charitable, industrial,educational, or benevolentpurposes to any person,corporation or community notunder the absolute control ofthe state, nor to anydenominational or sectarianinstitution or association."Article 3, § 36.

shadow of incidental benefit toa church-related institution,"and State Attorney Generalhas opined that it applies aswell to Federal assistancereceived by the State, that itprohibits the provision ofeducational services on thepremises of church-relatedschools, and that i+ allows thesubsidy of school lunchprograms at church-relatedschools. See, State ex rel.Warren v. Nusbaum, 64 Wis.2d314, 219 N.W.2d 577 (1974);Op.Atty.Gen., Feb. 23, 1978;Op.Atty.Gen., Oct. 4, 1974;and Op.Atty.Gen., May 1,

1980.

Lk../David M. AckermanLegislative AttorneyAmerican Law Division