Number 4 September 1. 1971

Number 4 September 1. 1971 Honorable Neil V. Sullivan Commissioner of Education 182 Tremont Str. etts 02111 Dear Commissioner Sullivan: You have requested my opinion with respect to the legality of a shared time and dual student enrollment arrangement, commonly known as the 'Marlborough Plan."* entered into between the City of Marl- borough school department and the Immacula: e Z nception Parish in Marlborough. Specifically, you as 1 ) Does the shared time program as operational in the city of Marlborough with the I mbte Conception Parish meet the p :ns of the :itution of the Commonwealth of Massachu 2 If your answer to Question 1 is in the affirmative, does the expenditure of public money for that portion of the educa- tional program under the complete control and jurisdiction of the Marlborough v Committee as contained in the en- closed written plan meet the requirements of Chapter 70 of the General L. r reimbursement by the Commonwealth of Massachuse For the n s hereinafter stated, it is my opinion that such a pro- .m contravenes the pre sions ol Article 46 of the Articles of Amendment to the M nstitution. It is therefore unnece nd question. And. although you do not raise the question. 1 deerr. :: appropriate inion with respect to the Federal issues an in the light of recent decisions of the Supreme Court of the Unite. v ites According the information you provide, the rlborough Plan" operates as folk x DO per school ±e C .borough ool department leases the entire floor cc is § ring of four class- rooms, corridor space. ~id an administration office) of a single school building presently design :he "Shared Time School" anc i by the Immaculate Conception Parish. From S 5 - DO p.m. on each schoc - cased as the puhhc schoc - E c Dr, is under the c complete and exclu- c ^ntrol of the Marlborough School Committee and the Superintendent of the Marl- rough Public Schools. Immaculate :ion Parish charges the Marlborough School Department one-third of the total building expendi- ture- such items as heat, light, maintenance tarian doctrine is taught in the public school sector during the regular schoc nd all symbols ofa religious nature have been removed from thi^ si On the sec nd floor of the buildir^ s - ed the private -. over which the Immaculate School Parish exercises com- plete com 46 P.D. 12 Under the plan you describe, provision is made for a dual enrollment program. Students in grades one through four residing within the City of Marlborough may elect to enroll in the public school system full time by attending the public school for one segment of the school day and another public school for the other required segment of the school day. In the alternative, students may enroll in the public school system and the parochial school system. These two systems operate in a "platoon" type manner. During the morning hours, approximately one-half of the 270 students attend the public school sector while the second half attend the private school sec- tor. Those students attending the private school sector in the morning transfer downstairs to the public school sector to complete the remain- der of the school day. Those students attending the public school sector in the morning may either transfer to the upstairs private school sector for the afternoon or, if they desire, may attend a nearby public school, the curricula of which has been correlated to allow for this alternative. Under either system, the school schedules comply with the required number of hours per school day as mandated by the Board of Education. The public school sector is subject to the same policies and regulations governing all other public schools operated by the Marlborough School Department, and the private school sector of the "Shared Time" School has voluntarily adopted the same administrative procedures as those prescribed for the public school sector. You further state that four lay teachers, selected and employed by the Marlborough School Depart- ment, provide instruction in spelling, mathematics, science, art, music and social studies in the public school sector. Four religious teachers, working exclusively in the private school sector for the entire length of the school day, provide instruction in phonetics, reading, English, pen- manship and religion. I proceed first to the Federal constitutional issue which arises under the Establishment Clause of the First Amendment to the Constitution of the United States. While I would ordinarily confine myself to the legal- ity of the plan under the Massachusetts Constitution, recent decisions of the Supreme Court of the United States clearly indicate that the plan contravenes the Establishment Clause as well. In Lemon v. Kurtzman, 39 L.W. 4844, Mr. Chief Justice Burger, writing for a unanimous Court, struck down Pennsylvania and Rhode Island statutory programs which provided for the purchase of secular educational services and salary supplements for teachers in non-public schools. Commenting on the legislative precautions taken in enacting both programs, the Chief Jus- tice stated: "The two legislatures, however, have also recognized that church-related elementary and secondary schools have a sig- nificant religious mission and that a substantial portion of their activities are religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee P.D. 12 47 the separation between secular and religious educational functions and to ensure that State financial aid supports only the former. All these provisions are precautions taken in can- did recognition that these programs approached, even if they did not intrude upon the forbidden areas under the Religion Clauses. We need not decide whether these legislative pre- cautions restrict the principal or primary effect of the pro- grams to the point where they do not offend the Religion Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State in- volves excessive entanglement between government and re- ligion." 39 L.W. 4844,4847. An examination of the Marlborough Plan shows the same excessive entanglement between government and religion disapproved in Lemon v. Kurtz/nan, supra. The operation of the plan requires a "platoon" sys- tem; the non-public and public school programs, in courses and hours, have to be correlated; the non-public school rents quarters to the public school authorities; the heat, light and maintenance charges must be computed and divided. Government surveillance of the total operations necessarily follows, and such surveillance, in the words of the Chief Jus- tice, is sure to "give rise to entanglements between church and state." Lemon v. Kurtzman, supra, at 4849. In the same week as it decided Lemon, the Supreme Court affirmed a District Court decision invalidating Connecticut's Nonpublic School Secular Education Act. Johnson v. Sanders, 319 F. Supp. 421 (D. Conn.), affd sub. nom. Sanders v. Johnson, 40 L.W. 3001. In that case, the District Court had stated: "We conclude that this statute, with a primary effect of turning over formal and financial sponsorship as well as sub- stantial administrative control of all secular parts of parochial schools to the State, while permitting religious aspects of these institutions to remain unchanged, unconstitutionally advances religion." 319 F. Supp. 421, 435. Given the reasoning and holdings in Lemon v. Kurtzman and Sanders v. Johnson, I am compelled to conclude that the Marlborough Plan con- travenes the Establishment Clause of the First Amendment. With respect to the State constitutional issue, your question arises in the context of a continuing decline in nonpublic school enrollment within the Commonwealth, particularly in Catholic schools. Nonpublic Educa- tion in Massachusetts, The Report of the Massachusetts Special Com- mission to Study Public Financial Aid to Nonpublic Primary and Sec- ondary Schools and Certain Related Matters, Vol. 1, at 1-5 (1971). 1 The consequences of this trend, if continued, would include "some tempo- rary or perhaps permanent disruption in the public schools themselves" and "a loss in the considerable contribution which non-public schools 1 Hereinafter referred to as "The Report." 48 P.D. 12 make to the life of the Commonwealth." The Report, Vol. 1, at 6. A more significant result, perhaps, would be the impact of higher costs to the taxpayers in the Commonwealth, which is estimated as high as $387,000,000 for the next five years. The Report, Vol. 1, at 6, 28. Similar circumstances in other states have prompted the enactment of statutes and adoption of plans which have been only partially successful when subjected to challenge in state courts of last resort under various state constitutional provisions. See, e.g., Board of Education for Ind. School Dist. No. 52 v. Antone, 384 P. 2d 911 (Okl. 1963) (program of busing nonpublic school students in public school owned and operated school buses held invalid); Spears v. Honda, 449 P. 2d 130 (Hawaii 1969) (statute providing public funds for bus transportation subsidies to nonpublic school students held invalid); State ex rel. Chambers v. School District No. 10, All P. 2d 1013 (Mont. 1970) (levy for or expenditure of funds for employment of teachers to provide secular instructions in parochial schools held invalid); Seegers v. Parker, 241 S.2d 213 (La. 1970) (statute providing for purchase by state of secular educational services from teachers employed by nonpub- lic schools held invalid); Hartness v. Patterson, 179 S.E.2d 907 (S.C. 1971) (statute providing public funds for tuition grants to students attend- ing non-public institutions of higher learning held invalid); but, see Bowerman v. O'Connor, 247 A. 2d 82 (R.I. 1968) (statute providing for textbooks to parochial school students held valid); Opinion of the Justices, 258 A. 2d 343 (N.H. 1969) (proposed bills providing divers serv- ices and textbooks to students in nonpublic schools held valid); In Re Legislature's Request for an Opinion, Etc., 180 N.W.2d 265 (Mich. 1970) (statute providing for state purchase of educational services in secular subjects from nonpublic schools held valid); Americans United Inc. v. Ind. School District No. 622, 179 N.W.2d 146 (Minn. 1970) (statute authorizing use of public funds to transport children to sectarian schools held valid, appeal dismissed, 39 L.W. 3564); Hunt v. McNair, 177 S.E.2d 362 (S.C. 1970) (statute authorizing issuance of revenue bonds for institutions of higher learning held valid, judgment vacated, 39 L.W. 3564); Nohrr v. Brevard County Educational Fac. Auth., 247 S.2d 304 (Fla. 1971). These and similar decisions which indicate the diversity of opinion in the area of aid to nonpublic schools provide scant assistance in resolving the question you raise, primarily because of the differing texts of the several "anti-aid" constitutional provisions among the several states. As stated recently in Opinion of the Justices, 1970 Mass. Adv. Sh. 789, 798, "[ojpinions from other states, with different constitutional provisions, are not controlling." 2 Therefore, persuasive authority is not provided by decisions in those jurisdictions where the language of the constitutional ( umg this Opinion, the Supreme Court of Louisiana similarly ruled that decisions from Pennsylvania, New Hampshire. Rhode Island. Michigan and Maine were inapposite. Seegers v. Parker, supra at 219. P.D. 12 49 provision 3 is interpreted as no more restrictive than the Federal Con- stitution, since "the explicit language of article 46, § 2, of the Amend- ments, ... is much more specific than that of the First Amendment." Opinion of the Justices, supra, at 794. Accordingly, my opinion is based upon the specific language of Article 46, § 2 of the Amendments, as in- terpreted in light of its history and by the Justices of the Supreme Judi- cial Court. 4 Article 46, § 2 of the Amendments, states in pertinent part: "[N]o grant, appropriation or use of public money or prop- erty or loan of public credit shall be made or authorized by the commonwealth or any political division thereof for the purpose of . . . aiding any school . . . whether under public control or otherwise, wherein any denominational doctrine is inculcated, or any other school . . . which is not publicly owned and under the exclusive control ... of public officers . . . authorized by the commonwealth or federal authority or both ..." In Opinion of the Justices, supra, the Justices ruled that a proposed bill providing for the purchase by the Commonwealth of secular educa- tional services from nonpublic schools in the form of reimbursement not exceeding the cost of teachers' salaries, textbooks, instructional materi- als and standard educational testing would amount to "aiding" in viola- tion of § 2, a result compelled by the "clear and peremptory" and "une- quivocal" language of that section. Id. at 795-796. A detailed examina- tion of the Debates in the Massachusetts Constitutional Convention of 1917-1918, which led to the insertion of § 2 in the Constitution, disclosed that "[t]here can be no doubt that the explicit language was intentional" and "unquestionably was designed to preclude entirely aid to all non- public institutions from appropriated public funds with minor exceptions not here relevant." Id. at 796, 797. Thereafter, in Opinion of the Justices, 1970 Mass. Adv. Sh. 911, the Justices also ruled unconstitutional under § 2 a proposed bill which would have authorized the annual payment of $100 to each school pupil attending an elementary or secondary school in the Commonwealth, in- cluding those attending nonpublic schools. The Justices stated that "[t]he present bill seems to us to involve an indirect form of aid to non- public schools which, if enacted, would have in substance the same practical effect as the measure which we recently considered." Id. at 3 See, e.g., Bowerman v. O'Connor, supra at 83. 4 1 find unpersuasive two recent decisions upholding shared time programs. In Morton v. Board of Education of City of Chicago, 216 N.E.2d 305 (App. Ct. of 111. 1966), the intermediate appellate court did not specifically pass upon a state constitutional provision. In In Re Propaal C, 185 N.W.2d 9 (Mich. 1971), the Supreme Court of Michigan ruled that a constitutional amendment which denied shared time services to nonpublic school stu- dents violated the Equal Protection and Free Exercise Clauses of the United States Constitution. The former ground was rejected in Opinion of the Justices, 1970 Mass. Adv. Sh. 91 1, 915-916 (infra). The latter ground was expressed in merely conclusory terms (In Re Proposal C. supra at 28-29) and is contrary to the great weight of authority. Compare Johnson v. Sanders, 319 F. Supp. 421. 435 (D.C Conn.) (three judge court), affd sub. nom Sanders v. Johnson, 40 L.W. 3001. 50 P.D. 12 914. 5 Section 2, therefore, has been interpreted to prohibit indirect aid (see Spears v. Honda, supra at 137), as if the term "indirect" appeared in the text of the constitutional provision. Compare State ex rel Cham- bers, supra at 1017. Seegers v. Parker, supra at 216. Hartness v. Patterson, supra at 908. It is not necessary to conclude, as have some commentators, that shared time programs "have no rationale except benefit for church schools . . . Kurland, Politics and the Constitution: Federal Aid to Parochial Schools, 1 Land & Water L. Rev. 475, 494 (1956). See Bur- ton, Public Funds for Public Schools Only, 78 Christian Century 415, 417 (1961). What was obviously intended by the subject program was a practical and direct resolution of the increasing public school crisis re- ferred to in The Report mentioned above, recognizing the exigencies of the moment. The officials in Marlborough have no doubt undertaken a good faith approach keyed to continuing sound education for their young citizens while at the same time minimizing the fiscal increases on the community. There is, therefore, mutual aid arising from the plan, aid to the community and aid to the non-public school. This, however, does not create an exception to the clear provision of the Massachusetts Con- stitution as interpreted by our Court. I have no alternative but to con- clude that the "Marlborough Plan" contravenes Article 46, § 2, for many of the same reasons as I have concluded that the plan fosters ex- cessive entanglement between government and religion in violation of the Federal Constitution. While I am mindful of the economic dislocations which may result from this opinion, as related above, my sole consideration is one of law, whether the plan is valid under the Constitution of the Commonwealth. The Commonwealth cannot finance religious institutions, even with the assurance that such a program will effect a smaller over-all tax burden or obviate increasingly onerous state responsibilities. As stated by the Justices: "We are faced with the language of art. 46, § 2, as it was adopted in 1917 and as it has remained unchanged for over fifty years. Those who opposed the measure in the Conven- tion and when it was submitted to the people for adoption challenged its wisdom. The Debates, however, reveal no doubt as to the meaning and effect of the language. It is still applicable despite changed conditions and probably some- what different public attitudes. The existence of an emergency . . . cannot alter the unequivocal terms of art. 46, § 2. It constitutes a binding constitutional restraint upon the General Court and upon us until and unless it is changed by some method permitted by the Constitution of the Common- s Because of these recent opinions, 1 discount that portion of Op. Ally. Gen., June 13, 1966, at 371, in which a former Attorney General stated "I know of no . . . constitutional provision applicable to this Commonwealth that . . prohibits a so-called 'shared time' program, under which a student attends a public school for certain courses and a non-public . . . school for others." P.D. 12 51 wealth." Opinion of the Justices, 1970 Mass. Adv. Sh. 789, 797-798. Very truly yours, ROBERT H. QUINN Attorney General