Stamler, Joseph H., J.s.c.
Plaintiffs are the State Board of Education (hereinafter "state board"), the Commissioner of Education and the Attorney General of New Jersey. Defendants are the Netcong Board of Education (hereinafter "Netcong board"), the superintendent of schools of Netcong and the principal of the Netcong High School. Plaintiffs seek a declaratory judgment that a certain resolution and the implementation thereof are in violation of the United States Constitution and the Constitution of the State of New Jersey. A permanent injunction is demanded. Defendants assert that plaintiffs have no standing to seek relief and that what they have done is not proscribed by law.
The parties have stipulated that the State Board of Education bears the responsibility for the general supervision and control of public education in this State. In furtherance of this responsibility, the state board has the power to make and enforce rules implementing and carrying out the school laws of this State and has all other powers, in addition to those specifically provided by law, requisite to the performance of its duties. The Commissioner of Education has supervisory power over all schools of this State receiving support or aid from state appropriations and is responsible for the enforcement of all rules prescribed by the state board. The Attorney General is responsible for the enforcement of the provisions of the Constitution and all other laws of this State, and of the Constitution of the United States as interpreted by the courts.
On September 2, 1969 the Netcong board enacted the following resolution:
That the Superintendent be instructed by the Board of Education to institute prayers in the Netcong Schools, forcing no student to pray if unwilling but denying no student the right to pray, details to be worked out by the Board of Education.
It was further resolved that
Members of the clergy from the communities of Netcong and Stanhope be invited to meet with representatives of the Board of Education and compose a suitable prayer for the Board's consideration. In the interim, the Superintendent is instructed to institute 30 seconds of silent meditation until the Board takes further action. [Emphasis supplied]
On September 10, 1969 the Netcong board rescinded its resolution of September 2 and enacted the following:
On each school day before class instruction begins, a period of not more than five minutes shall be available to those teachers and students who may wish to participate voluntarily in the free exercise of religion as guaranteed by the United States Constitution. This freedom of religion shall not be expressed in any way which will interfere with another's rights. Participation may be total or partial, regular or occasional, or not at all. Non-participation shall not be considered evidence of non-religion, nor shall participation be considered evidence of or recognizing an establishment of religion. The purpose of this motion is not to favor one religion over another nor to favor religion over non-religion but rather to promote love of neighbor, brotherhood, respect for the dignity of the individual, moral consciousness and civic responsibility, to contribute to the general welfare of the community and to preserve the values that constitute our American heritage. [Emphasis supplied]
On September 16, 1969 the Netcong board adopted the following supplementary resolution:
BE IT RESOLVED that the Superintendent of Schools be authorized, empowered and directed to implement the resolution creating a period for the free exercise of religion in whatever manner, in the exercise of his discretion, he considers best under the circumstances. [Emphasis supplied]
The implementation of the resolution has occurred in the following way: At 7:55 A.M. in the Netcong High School
gymnasium, immediately prior to the formal opening of school, students who wish to join in the exercise either sit or stand in the bleachers. A student volunteer reader, assigned by the principal on a first come, first serve basis, then comes forward and reads the "remarks" (so described by defendants) of the chaplain from the Congressional Record , giving the date, volume, number and body whose proceedings are being read. The selection of material to be read is made by the volunteer reader, with the approval of the high school principal in a purely ministerial manner to insure that the material used complies with the evinced purposes of the board's resolution. The volunteer reader is free to add remarks concerning such subjects as love of neighbor, brotherhood and civic responsibility. At the conclusion of the reading the students are asked to meditate for a short period of time either on the material that has been read or upon anything else they desire.
In October 1969 the Commissioner of Education requested an opinion of the Attorney General as to whether the resolution of the Netcong board and the implementation thereof conformed with the provisions of the First Amendment to the United States Constitution. On November 24, 1969 the Attorney General rendered to the Commissioner a formal opinion which concluded that the resolution of the Netcong board and the implementation thereof violate the First Amendment to the Constitution of the United States. On November 26, 1969 a copy of the Attorney General's opinion was mailed to the attorney for the Netcong board at the attorney's request.
On December 1, 1969 the Commissioner sent a telegram to the Netcong board calling upon it to rescind the resolution and to cease and desist from all practices pursuant thereto.
On December 2, 1969 the Netcong board met in regular session and resolved to maintain both the resolution and the implementation thereof in the Netcong schools, notwithstanding the opinion of the Attorney General and the directive of the Commissioner of Education.
On December 3, 1969 the state board unanimously authorized and called upon the Attorney General to take legal action.
On December 4, 1969 the Commissioner received a letter from the secretary to the Netcong board reiterating the position which the Netcong Board took on December 2, 1969 and stating, in part, that
On December 5, 1969 the state board sent a telegram advising the Netcong board of its December 3, 1969 decision to start suit.
On December 9, 1969 a verified complaint was filed and an order to show cause issued. The court's suggestion that the matter be considered on the return day as cross-motions for summary judgment on stipulated facts was accepted by all counsel.
Without objections from either side the court received the amicus brief of the In God We Trust Committee, the Tenth District (Morris County) of V.F.W. (Veterans of Foreign Wars), the Morris County Conservative Club, Morris County American Legion, West Morris "T.R.A.I.N." (Time to Restore American Independence) Committee and the Essex County Conservative Club.
At the outset defendants argue that the state board, the Commissioner and the Attorney General have no standing to bring this action. The lack of standing, it is urged, arises from expressions in Everson v. Board of Education , 330 U.S. 1, 18, 67 S. Ct. 504, 91 L. Ed. 711 (1946), and in Sherbert v. Verner , 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), in which the states are admonished to take a neutral position in their relations with groups of believers and non-believers in matters of religion.
Defendants assert that taxpayers of Netcong or parents of a child attending Netcong High School are the only proper parties plaintiff. This would require one segment of the small community to engage in heated controversy with another segment and be forthwith labelled, not as litigants, but as "Anti-God," "Anti-Christ" or "Communists." Telegrams and letters were sent to the court during the pendency of this litigation which clearly and depressingly set forth the temper of the community and the eagerness of certain "citizens" to create division, diversion and prejudice.
However, this court, in determining the status of plaintiffs in the instant action, cannot and will not be influenced in any way by the telegrams, letters or labels. The law, and not the public clamour or fear thereof, is the polestar.
Where standing is placed in issue, the question is whether the person whose standing is challenged is a proper party to such an adjudication of a particular issue and not whether the issue itself is justiciable. Flast v. Cohen , 392 U.S. 83, 99, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968).
The state board has supervision and control of public education (N.J.S.A. 18A:4-10) and is obliged to make and enforce regulations for implementing and carrying out the school law of this State. N.J.S. 18A:4-15. The Commissioner is constrained to enforce all rules prescribed by the state board. N.J.S. 18A:4-23. The Attorney General must enforce the provisions of the United States Constitution, the New Jersey Constitution and all other laws of the State. N.J.S. 52:17A-4.
The United States Constitution , Art. VI, cl. 3, states in pertinent part: "* * * all executive and judicial officers both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; * * *."
The members of the state board, the Commissioner and the Attorney General have taken the required oath. N.J.S.A. 41:1-2.
In Sills v. Hawthorne Board of Education , 84 N.J. Super. 63 (Ch. Div. 1963), aff'd. 42 N.J. 351 (1964), the Attorney General and the State Board of Education sought and were granted injunctive relief against a local board in a case involving compulsory prayer in school. This court is advised that the standing of plaintiff to sue was fully briefed. However, neither the trial court nor the Supreme Court saw fit to comment. It must be assumed that no affirmance would have ...