The Proposed New Jersey Bus Law and The Separation of Church and State

March 19, 1967
Plainfield

The Proposed New Jersey Bus Law and The Separation of Church and State

This bill has passed the State Assembly and may come up in the State Senate tomorrow. Because this bill has far-reaching implications in that sensitive area known as the "Wall of Separation Between Church and State," and because the proposal is being hurried through the New Jersey legislative bodies without sufficient discussion, those who believe that the Constitutional principle is necessary, as well as those who may be concerned about unnecessary and exhorbitant costs, should give immediate attention to the proposals.

From my point of view, the subject is divided into a (1) review of the constitutionality aspects; (2) the fear that the proposal, if enacted, would be a considerable setback to American public school education; (3) the suggestion that this Bill could have consequences of deeper erosion of the wall of separation between Church and State; (4) an observation that the unseemly haste with which our New Jersey Assembly have acted is a good reason to slow things down and a thorough public discussion by our elected representatives should be conducted.

The bill, called the "Assembly Committee Substitute for Assembly Bill 21," seeks to amend previous legislation concerning transportation of pupils to school by providing that each School District would be responsible for transporting pupils to non-profit private schools and parochial schools, whether or not these schools are near the public school bus routes. There is a condition in the Bill that the school must be within twenty miles of the student's residence. Many additional busses would be necessary.

The provisions would apply to the private schools whose students represent the wealthiest segments of society as well as the many parochial schools. Present estimates indicate that there are now 335,000 pupils attending such schoools in New Jersey, 1/4 of the school population.

The State of New Jersey would pay each School District 75% of the cost of busing the District. Each District would have to assume the additional 25% of all costs incurred under this proposal if passed.

1) What seems to be the prospect that such legislation would be considered constitutional by the U. S. Supreme Court? Proponents of the Bill base assertions of constitutionality on the famous Everson Case of 1947 – a case originating in the New Jersey courts. By a 5 to 4 majority, the Supreme Court ruled that the transporting of parochial school school children on Public school bus routes did not violate the First Amendment because such assistance was a service to the child, not a financial subsidy of a particular religious organization. Professor Paul Freund of Harvard, defining the legal issue in 1965 stated (p. 11, RELIGION AND THE PUBLIC SCHOOLS), "bus fares to parochial schools may be provided by the State, but need not be.... These are areas of legislative choice without constitutional compulsion one way or another.

This would seem to be the constitutional foundation on which Governor Hughes justifies this proposed bill. But there is considerable difference between permitting parochial school students to ride the public school bus routes and organizing separate additional systems to supply free transportation to private and parochial schools,

Furthermore, the Supreme Court decisions in recent years involving issues of Church and State have been such that any definition of a single pattern is difficult to trace.

The McCollum case (1948), declared unconstitutional the use of public school facilities for released time instruction.

The New York Regents’ Prayer case established the principle that classroom use of prescribed prayers was unconstitutional.

The Pennsylvania and Maryland cases strengthened the Wall separating Church and State when the Supreme Court decided that devotional use of the the Bible in public schools was unconstitutional.

The Zorach decision (1952) weakened the Wall by rendering constitutional the practice of released time for religious education when such classes were held outside the public school property.

(2) While one must admit that the present constitutionality of this proposed legislation to provide free school busing for all non-public school children is at least somewhat in line with the Everson decision, not only are there distinctions, but also there are other considerations involving the general welfare of the entire public.

A basic consideration is the importance of improving the public school systems in this State and every other state to the end that equality of educational opportunity will become more real than promised. The Supreme Court ruled in 1954 (Brown vs. Board of Education) that segregated education is unequal education. Studies by educators have confirmed this sad reality of our time. If private school education is encouraged by increasing Federal and State subsidies, more and more parents who are prejudiced or who shrink from the demands of the need for equal opportunity will transfer their children to a private school.

At the time of the 1965 Federal Aid to Education act, there was a trend indicating that as favoring legislation makes it possible to draw on Government funds for teachers, services, facilities, transportation, the number of private schools will increase. The magazine CHRISTIANITY TODAY (1/29/65) reported that during the last nine months of 1964 it received inquiries from 69 groups who wanted assistance in establishing Christian day schools – four times the comparable number in the year before.

The persons least able to provide private school tuition and costs will be the poor people who, even now, are becoming sorely tried and increasingly troubled by the deficiencies of segregated education. If one school pupil in four now attends private school, will not the proposed subsidy of private and religious schools increase the degree of segregation in public schools by additional removals of children by the more affluent families? My opinion is that it will increase the degree of segregation. Can there be much doubt that such policies encouraging segregation will increase the sense of desperation felt by the poor and segregated and discriminated-against?

(3) With such downgrading of the free, public school, there will be increasing favoritism and more subsidy of the private and parochial schools. This is not just a vague guess, because already there are signs of such happenings. The Federal Aid to Education Bill of 1965 provided many startling innovations in aid to parochial schools. Many of these have yet to be tested in the U.S. Supreme Court for constitutionality.

The New York Times recently referred editorially to a specific instance which should make every defender of the American free, public school think. Taking advantage of provisions of the Federal Aid to Education Act of 1965, the Board of Education decided to provide one remedial reading teacher for every 157 pupils in parochial schools, although the rate in the public schools is one remedial reading teacher for every 230 pupils. One of the pressing needs of the public schools here and everywhere is to bring disadvantaged pupils in the publie school up to reading grade level. So there occurs a specific instance of the reality that favoring the private school acts to the detriment of the public school. The consequences of such practices would rip wide gaps in the social fabric. The NYT editorial summed up the consequences of erosion of the wall separating Church and State in education, "Instead of adhering to principle, the Board has played a numbers game in which the winning figure was reached by satisfying the bargaining agents for the nonpublic parochial schools."

Furthermore, the pressure points we all will feel concern not only principles but also money. Public education costs great sums of money and will cost more even without increasing subsidies to the private and parochial school systems. Proponents of the measure estimate that the plan would cost $6 million during the first year of operation, $5 million the second year and would increase 10% per year after that. However, Assemblyman Raymond Bateman asserted that costs would be in the neighborhood of 25 to 30 million dollars per year.

Both Watchung and Fanwood-Scotch Plains Boards of Education went on record this week as opposed to the Bill. Comments of the Scotch Plains Fanwood Board are interesting. The Bill would cost that school district $140,000 the first year and costs would increase more than 10% per year as additional private schools qualified. That Board's statement also questioned the somewhat fantastic burden that provisions of the Bill would require. The Scotch Plains-Fanwood Board would have to transport pupils to Elizabeth, South Orange, Gladstone, Somerset and other towns. More significantly, supporting mandatory busing for parochial school students would surely deprive important public school progams of important funds, because few school districts would hardly vote for this sudden large investment in non-public education and at the same time vote for the sustaining and expanding educational requirements which all educators believe necessary in our times.

Even now, it is believed that a substantial [percent] of the votes against expanding school budgets are cast by families who presently send their children to private or parochial schools. This negative bloc would surely gain in numbers if the proposed legislation were passed by the Senate and became law.

(4) Even those who may favor this proposed legislation or are unconcerned about its consequences might well consider, with concern, the unseemly haste with which the bill is being rushed through. The Governor has stated his opposition to public hearings on the grounds that "ugly arguments" would be aired. This attitude is wrong. To deny public hearings is to prevent the proper functioning of the legislative process and deprives legislators of the expert testimony and public opinion which should be among the considerations determining votes in the Assembly and Senate.

The Governor errs badly, or is playing the demagogue, when he implies that those who oppose this legislation do so from "ancient and ugly" arguments. There are those of us who believe that Constitutional principle, practicality, and the public good would best be served by defeat of this bill. I, for one am not going to be put off by any allegations that my objections are those based on prejudice, even when such inferences come from high places.

In my opinion, to assert as the Governor seems to, that opposition is prejudice, is in itself a variety of intolerance and a wretchedly unpromising introduction a to sensitive, candid debate on the issues of Church and State and what are, and what are not, constitutional as well as sensible distinctions.

Let me cite again Assemblyman Raymond Bateman of Somerset County, who accused the Democratic leadership of "high pressure tactics" and that the Assembly Education Committee had not held "five minutes of discussion on the merits of the bill."

My opinion is that there is great pressure on the Assemblymen and State Senators to get this bill rushed through quickly and without public hearings. On March 2, 1967, I wrote Senators Stamler and Hughes, Assemblymen Gavan, Henderson, Higgins, and McDermott, stating to each of them my opposition and asking each to inform me of his views. Not one of these has written an acknowledgedent. This sudden shyness is rather revealing about the stature of our Union County representatives. At the least, they are astonishingly negligent in acknowledging the opinions of a constituent.

There are few avenues open, but there is at least one, although time is short. The Senate may move on this Bill tomorrow. If Senator Matthew Feldman, Chairman of the Senate Education Committee receives enough requests he may acquire the political courage to conduct public hearings in the State Senate before bringing the bill to the floor. Two of our members, Ruth Gray and Al Kempler, have petition forms and information on sending telegrams and special delivery letters which, if sent immediately, would reach Senator Feldman tomorrow morning. There might be a volunteer who would bring these to Trenton today. Of course such communications represent individual, not official group concern.

There are those of us who believe that many far-reaching changes are being enacted in the principles, patterns, and politics of private and public education. No one should feel excused from the opportunity to keep informed, to come to his own convictions, and to attempt to influence the nature of political decision.