Stamler, (Joseph H.), J.s.c.
Plaintiffs are West Morris Regional Board of Education, two duly elected members of that board and a taxpayer of the Township of Morris. Defendants are the Attorney General of New Jersey, the Commissioner of Education, the State Board of Education, the State Director of the Division of Budget and Accounting, the State Treasurer, the Superintendent of Schools of Morris County and the Morris Township Board of Education. Plaintiffs, seeking a declaratory judgment in accordance with the provisions of N.J.S.A. 2A:16-55 (Uniform Declaratory Judgment Act), assert that N.J.S.A. 18A:39-1 is unconstitutional. Briefly stated, this latter statute requires school districts, under appropriate circumstances, to transport children residing in the district to and from non-public, non-profit schools up to 20 miles distant from their place of residence.
Plaintiffs attack the validity of this statute, popularly referred to as the "new school busing law," on two basic grounds: (1) that the primary benefit of the legislation
flows to institutions operated by religious orders and, therefore, tends to establish religion contrary to the First Amendment of the United States Constitution , and (2) assuming, arguendo , that the primary purpose of the legislation is "child benefit" and does not result in an Establishment Clause violation, plaintiffs contend that the classification of children benefited by this statute is arbitrary and discriminatory, and consequently violates the Equal Protection provisions of the Fourteenth Amendment of the United States Constitution. Defendants take the position that the statute is valid in all respects.
The questioned statute permits boards of education to provide for the transportation to and from school of pupils who reside "remote from any schoolhouse" and includes therein transportation of both public school children and those who attend non-public, non-profit schools. However, the benefits of the statute for non-public school children only become operative if the district in the first instance transports public school children. This is the so-called "triggering" provision.
N.J.S.A. 18A:39-1 provides in pertinent part as follows:
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 section shall not require school districts to provide any transportation to pupils attending a school other than a public school where the only transportation presently provided by said district is for school children transportated pursuant to chapter 46 of this Title [18A:46-1 et seq. ] or for pupils transported to a vocational, tehnical or other public school offering a specialized program. Any transportation to a school, other than a public school, shall be pursuant to the same rules and regulations promulgated by the State Board as governs transportation to any public school. [Emphasis supplied]
If, in its discretion, the district determines that pupil transportation is advisable, then the district is reimbursed by the State to the extent of 75% of total cost "when the necessity for such transportation and the cost and method thereof have been approved by the county superintendent of the county in which the district paying the cost of such transportation is situate." N.J.S.A. 18A:58-7.
After the present suit was commenced Judge Lora decided the case of McCanna v. Sills , 103 N.J. Super. 480 (Ch. Div. 1968), which decision upheld the constitutionality of the "busing statute" against an asserted violation of the Establishment Clause. Thereafter, Judge R. Cooper Brown reached the same conclusion in Board of Education of Woodbury Heights v. Gateway Regional High School Dist. , 104 N.J. Super. 76 (Law Div. 1968). No appeal was presented in either case. Plaintiffs here contend that these two trial court decisions are not binding upon this court, and this court is urged to reach the opposite result.
In the present case a stipulation of facts was filed and the parties brought the matter on for hearing on cross-motions for summary judgment. The stipulation in great part deals with legislative background. Judge Larner, in Fox v. Board of Education , 93 N.J. Super. 544 (Law Div. 1967), thoroughly detailed the history of the predecessor statute, R.S. 18:14-8, and what occurred thereafter in the Legislature leading up to the present statute is described in McCanna, supra , and Woodbury, supra. Repetition here of such legislative history would be superfluous.
It is important to note that, effective July 19, 1968, an amendment to the new statute limited the per pupil cost to $150. Therefore, the details of dollar expenditures under the statute prior to this amendment, referred to at length in the stipulation, are not pertinent to the issues now raised.
It was stipulated by the parties that 75% of the funds advanced by each school district is being reimbursed by the State to the districts, whether each district paid for busing or found it more expedient to make direct payments of up to $150 to parents or guardians.
The stipulation also reveals that as of April 1967 there were 363,560 students enrolled in the non-public schools of New Jersey from kindergarten through grade 12. Of this total, 332,519 students were attending schools conducted under the auspices of the Roman Catholic Church. Thus, 91.4% of all the non-public school pupils attended schools affiliated with the Roman Catholic Church. As of April 1967, 88,782 students, 26.6% of the Roman Catholic school pupils, lived two miles or more from the school they attended. Of that number, 69,656 were transported to school by bus.
In the West Morris Regional High School District, for the 1967-68 school year, a total of 429 private school students were transported. Of that number, 346 students were transported to parochial schools. Defendant Morris Township Board of Education buses 519 pupils to non-public schools.
In contrast to West Morris Regional and Morris Township is the Town of Morristown. The stipulation acknowledges:
The Morristown Board of Education transported no public school students during the school year 1967-1968. It will transport no private and parochial students in the 1968-1969 school year because it provides no transportation for public school students.
It has been further stipulated that in many instances non-public school curricula include religious instruction and sectarian prayer.
Attending to plaintiffs' first contention that the statute and its implementation violates the Establishment Clause of the First Amendment, this was fully argued in both McCanna, supra and Woodbury, supra , and this court adopts the conclusions of Judges Lora and Brown as they relate to the alleged Establishment Clause violation. In both cases the statute was held to be constitutional.
The second phase of plaintiffs' attack is that the statute constitutes a denial of equal protection of the law. It is urged that the classification of children to receive the statutory benefits is arbitrary and consequently in violation of the Fourteenth Amendment. This issue was specifically not raised in McCanna, supra. From the record before this court, it was not fully presented in Woodbury, supra.
Plaintiffs, addressing themselves to the equal protection question, state paradoxically that this statute does not go far enough, while at the same time, under the Establishment Clause argument, they say the statute goes too far. Plaintiffs assert that the operation of N.J.S.A. 18A:39-1 violates the Equal Protection Clause by reason of "under-inclusion." Plaintiffs cite six categories of school children who are excluded from transportation by reason of the operation of the act, to wit: (1) New Jersey residents attending out-of-state schools; (2) students outside the 20-mile radius; (3) pupils attending profit-making private schools; (4) pupils living in districts which only transport handicapped children pursuant to N.J.S.A. 18A:46-23; (5) students living in districts which only provide transportation to children attending public vocational schools, and (6) private or parochial non-profit school pupils residing in a district which provides no transportation to its public schools. Plaintiffs maintain that, by reason of these ...