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West Morris Regional Board of Education v. Sills

Supreme Court of New Jersey

April 26, 1971, Argued ; June 25, 1971, Decided

No Number in Original


 [*467]  [**610]   Plaintiffs sought a declaration that a statute providing for free transportation of children to private schools was unconstitutional. The principal attack was two-fold: (1) that the statute violated the establishment clause of the church-state provision of the First Amendment to the Constitution of the United States, and (2) that the statute discriminated arbitrarily among pupils attending private schools,  [***2]  in violation of the equal protection clause of  [*468]  the  [**611]  Fourteenth Amendment. The trial court found against plaintiffs as to the establishment issue, but for them with respect to their equal protection complaint. The trial court also placed its decision on two additional grounds which we find untenable and which require but passing mention. 1 West Morris Regional Board of Education, Morris County v. Sills, 110 N.J. Super. 234 (Ch. Div. 1970).

 [***3]  Defendants appeal and plaintiffs cross-appeal. The cross-appeal seeks no modification of the judgment itself; rather the object is to place the result upon the more pervasive thesis that the church-state provision bars free public transportation to parochial schools. We certified the matter before argument in the Appellate Division.

The statute under attack is N.J.S.A. 18A:39-1. 2 It deals with pupils residing  [**612]  "remote" from any schoolhouse,  [*469]  and authorizes the local board of education to make rules and contracts for their transportation, not only to public schools, but also to private schools, subject, however, to certain exceptions. The equal-protection argument arises out of those exceptions. The church-state issue arises out of the fact that the required transportation includes transportation to parochial schools.

 [***4]  The statute has a relevant history. In an earlier form, it was upheld against the charge that it violated the establishment clause. Everson v. Board of Education of Ewing Township, 133 N.J.L. 350 (E. & A. 1945), affirmed, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947). The statute then required that when a school district provides transportation for public school children living remote from any schoolhouse, it must also supply transportation "from any point in such established school route to any other point in such established school route" to school children residing in such school district "in going to and from school other than a public school, except such school as is operated for profit  [*470]  in whole or in part." R.S. 18:14-8, as amended by L. 1941, c. 191. The local board of education there provided for transportation by reimbursing the parent of public school pupils for fares paid a common carrier. Obedient to the statute, the board also provided for reimbursement to parents of students who used the same bus routes in attending private schools, all of which were operated by the Roman Catholic Church. The statute was upheld in  [***5]  Everson by a divided vote in our State court and by a vote of 5 to 4 in the United States Supreme Court.

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58 N.J. 464 *; 279 A.2d 609 **; 1971 N.J. LEXIS 274 ***



transportation, private school, attending, public school, remote, school district, pupils, trial court, schools, public school student, schoolhouse, districts, route, residing, provide transportation, distance

Education Law, Students, Right to Education, Religion in Schools, Establishment Clause Protections, Departments of Education, State Departments of Education, Authority of Departments of Education, Administration & Operation, Elementary & Secondary School Boards, Authority of School Boards, Student Transportation, Equal Protection, Governments, Local Governments, Home Rule, Constitutional Law, Equal Protection, Nature & Scope of Protection, Legislation, Initiative & Referendum, State & Territorial Governments, Relations With Governments, State Constitutional Operation, Legislatures