Plaintiffs bring this action alleging that chapter 74 of the Laws of 1967, as amended by chapter 29 of the Laws of 1968, The School Transportation Law, is unconstitutional in that it is violative of the First Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, in that it affects the establishment or advancement of religion.
The statute, in pertinent part, states:
"Whenever in any district there are pupils residing remote from any schoolhouse, the board of education of the district may make rules and contracts for the transportation of such pupils to and from school, including the transportation of school pupils to and from school other than a public school, except such school as is operated for profit in whole or in part.
When any school district provides any transportation for public school pupils to and from school pursuant to this section, transportation shall be supplied to school pupils residing in such school district in going to and from any remote school other than a public school, not operated for profit in whole or in part, located within the State not more than 20 miles from the residence of the pupil [provided] the per pupil cost of the lowest bid received does not exceed $150.00 and if such bid shall exceed said cost then the parent, guardian or other person having legal custody of the pupil shall be eligible to receive said amount toward the cost of his transportation to a qualified school other than a public school, regardless of whether such transportation is along established public school routes."
This has been codified in N.J.S. 18 A:39-1 which, in pertinent part, is identical with the above-quoted statute.
The case was submitted to the court on cross-motions for summary judgment based upon a written stipulation of facts with exhibits annexed.
The facts show that as of April 1967, 363,560 students were enrolled in New Jersey nonpublic schools, grades kindergarten through twelfth. Of this number, 332,519 students attended 644 schools operated under the auspices of the Roman Catholic Church. Therefore, 91.4% of the total non-public school population attended Roman Catholic schools. 88,782 students, or 26.6% of the Roman Catholic school population, lived two miles or more from the schools they attended. Of that number 69,656 were transported to school by bus. This bus transportation was provided by 47 Roman Catholic schools, but counsel were unable to determine if the parents paid for the same. Bus transportation to 327 of the Catholic parochial schools was provided directly by parents. (Plaintiffs contend that said schools are now relieved at least of an administrative burden.)
During the 1967-68 school year the Board of Education of Teaneck Township transported 462 students to and
from private schools, and of that total 402 students, or 87.01%, were transported to parochial schools run by various religious societies or groups. During this same school year defendant Pascack Valley Regional High School District Board of Education transported a total of 295 students to private schools at an average per pupil cost of $198.89.*fn1 It also transported 741 public school pupils at an average per pupil cost of $114.98. The facts also show that the boards of education of Closter and Teaneck made expenditures in excess of $150 per pupil for the purpose of transporting pupils to private schools. Teaneck's cost for transporting 1,196 public school students to and from school was $51.73 per pupil during the 1966-67 school year. In 1965-66 the average per pupil cost was $57.90, and in 1964-65 it was $55.06.
The parochial schools have a course of education which is substantially the same as that of the public schools in New Jersey. However, the curriculum in each of these schools includes certain courses concerned with the tenets of the various religions sponsoring said schools, and organized sectarian prayer is included in the curriculum. Some of the faculty of these schools consist of Roman Catholic clergy, nuns, Protestant clergy and Jewish clergy.
In 1947 the United States Supreme Court upheld the constitutionality of N.J.S.A. 18:14-8, the predecessor of the statute here under consideration, in Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711, affirming 133 N.J.L. 350 (E. & A. 1945). The continuing vitality of that decision was assured by the Supreme Court this year in the case of Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 242, 88 S. Ct. 1923, 20 L. Ed. 2 d 1060 (1968), wherein the court relied on the principles of Everson in upholding a New York law which made textbooks available to private
school students on an equal basis with public school students. The majority opinion therein stated:
"Of course books are different from buses. Most bus rides have no inherent religious significance, while religious books are common." (at p. 244, 88 S. Ct., at p. 1927)
And Mr. Justice Douglas in his dissenting opinion noted:
"Whatever may be said of Everson, there is nothing idealogical about a bus." (at p. ...