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April 5, 1973

Carl L. MARBURGER, State Commissioner of Education of the State of New Jersey, et al., Defendants. The BOARD OF EDUCATION OF the CITY OF ORANGE, Plaintiff, v. Carl L. MARBURGER, State Commissioner of Education of the State of New Jersey, et al., Defendants

The opinion of the court was delivered by: BARLOW

Plaintiffs in Public Funds for Public Schools of New Jersey et al. v. Carl L. Marburger et al., are an amalgam of individual citizen taxpayers and organizations asserting that New Jersey's Non-public Elementary and Secondary Education Act, N.J.S.A. 18A:58-59 et seq., violates the First and Fourteenth Amendments to the Federal Constitution. Consolidated therewith is The Board of Education of the City of Orange v. Carl L. Marburger et al., which raises identical issues. The defendants in both cases are the State of New Jersey and its Governor, William T. Cahill, Carl L. Marburger, State Commissioner of Education of the State of New Jersey, and Joseph M. McCrane, Treasurer of the State of New Jersey. With the consent of all parties, a number of parents of nonpublic school children have been permitted to intervene as defendants. Fed. R. Civ. P. 24(b).

The challenged statute provides for two separate programs to be administered by the Office of Nonpublic Education of the New Jersey State Department of Education. The first program, contained in Section 5 of the Act (N.J.S.A. 18A:58-63), furnishes state aid, in amounts up to $10.00 for elementary school students and up to $20.00 for high school students, to the parents of nonpublic school students as reimbursement for the cost of "secular, nonideological textbooks, instructional materials and supplies". The second program, set forth in Section 6 of the Act (N.J.S.A. 18A:58-64), provides that the amount left from the total appropriation after the textbook reimbursement program is funded will be assigned to schools, in accord with their respective number of pupils, to acquire secular supplies, equipment and auxiliary services. Plaintiffs seek a declaratory judgment and injunctive relief. Jurisdiction is conferred by 28 U.S.C. §§ 1331, 1343(3), 2201, 2202.

 Pursuant to 28 U.S.C. §§ 2281, 2284, this three-judge court has been convened to determine whether or not the operation or execution of the Act should be permanently enjoined because it offends the Federal Constitution. Plaintiffs, further, seek a temporary restraining order, or, in the alternative, a preliminary injunction, restraining the defendants, Marburger, McCrane, Governor Cahill, and the State of New Jersey, their agents, employees, and successors in office, from disbursing further funds under N.J.S.A. 18A:58-59 et seq., or from otherwise participating in the administration or execution of the Act. Defendants move to dismiss the complaint for its failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).


 The defendants challenge the standing of the individual and organizational plaintiffs to institute these actions. It is clear that the individual plaintiffs have standing to raise an Establishment Clause claim. Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). Moreover, we believe the organizational plaintiffs also have standing because their members are resident taxpayers of New Jersey, who thus have an economic stake in the outcome of this litigation. Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). Furthermore, the inclusion of the organizational plaintiffs will in no way prejudice the defendants' case, since the individual plaintiffs have standing and all plaintiffs are represented by the same counsel. See Committee for Public Educ. and Relig. Lib. v. Rockefeller, 322 F. Supp. 678 (S.D.N.Y. 1971); Americans United for Sep. of Church and State v. Oakey, 339 F. Supp. 545 (D. Vt. 1972).


 Defendants urge that the Court should apply the abstention doctrines to both of these cases. The State maintains that when the State court's interpretation of the statute or evaluation of its validity under the State constitution may obviate any need to consider its validity under the federal Constitution, the federal court should hold its hand, lest it render a Constitutional decision unnecessarily; Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970). We do not accept this argument.

 First, it would seem that such a complex and multifaceted statute might well produce a piecemeal adjudication of the Act in the State courts and thereby delay the ultimate adjudication as to its Constitutional merits. Such a delay would be unacceptable in a case predicated on a First Amendment claim. Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967). Secondly, ". . . abstention should not be ordered merely to await an attempt to vindicate the claim in a state court. Where there is no ambiguity in the state statute, the federal court should not abstain but proceed to decide the federal constitutional claim . . . We would negate the history of the enlargement of the jurisdiction of the federal district courts, if we held the federal court should stay its hand and not decide the question before the state court decided it". Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S. Ct. 507, 511, 27 L. Ed. 2d 515 (1971). Thirdly, we have not, nor have defendants, discovered any case law which is a precedent for the application of an abstention doctrine in Establishment Clause cases. Finally, we are persuaded that no New Jersey court could interpret the exclusive "textbook reimbursement" plan or the "auxiliary services" provision so as to avoid the Constitutional question. Thus, abstention would, in our view, be inappropriate. Wisconsin v. Constantineau, supra; Zwickler v. Koota, supra; Lewis v. Kugler, 446 F.2d 1343 (3rd Cir. 1971); Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F. Supp. 42 (D.N.J., 1972).


 An application for a preliminary injunction is, of course, addressed to the discretion of the Court. Prendergast v. New York Tel. Co., 262 U.S. 43, 43 S. Ct. 466, 67 L. Ed. 853 (1923); United States Steel Corp. v. Fraternal Ass'n. of Steelhaul, 431 F.2d 1046 (3rd Cir. 1970); Allis-Chalmers Mfg. Co. v. White Consolidated Indus., 414 F.2d 506 (3rd Cir. 1969); Bieski v. Eastern Automobile Forwarding Company, 354 F.2d 414 (3rd Cir. 1965); United States v. Ingersoll-Rand Company, 320 F.2d 509 (3rd Cir. 1963). The exercise of the Court's discretion is, however, limited and controlled by the requirement that certain standards be observed. Generally, in order to be entitled to preliminary injunctive relief, an applicant is required to demonstrate irreparable harm and a reasonable probability of eventual success in the litigation. Scooper Dooper, Inc. v. Kraftco Corp., 460 F.2d 1204 (3rd Cir. 1972); A.L.K. Corporation v. Columbia Pictures Industries, Inc., 440 F.2d 761 (3rd Cir. 1971). This test, however, has been expanded in cases involving the public interest to require a balancing of the following considerations: (1) Did the plaintiff make a strong showing that it is likely to prevail on the merits? (2) Did the plaintiff show that without such relief it would be irreparably injured? (3) Would the grant of a preliminary injunction substantially have harmed other parties interested in the proceedings? (4) Where lies the public interest? Commonwealth of Pennsylvania ex rel. Creamer et al. v. United States Department of Agriculture, 469 F.2d 1387 and McHale, Secretary of Agriculture v. United States Dept. of Agriculture, 469 F.2d 1387 (3rd Cir. 1972). See In re Penn Central Transportation Company, 457 F.2d 381, 384-385 (3rd Cir. 1972); Croskey Street Concerned Citizens v. Romney, 459 F.2d 109, 112 (3rd Cir. 1972), concurring opinion, Aldisert J. See, also, Winkleman v. New York Stock Exchange, 445 F.2d 786, 789 (3rd Cir. 1971). The impact of the preliminary injunction sought here on the educational system of the State of New Jersey requires us, we think, to balance the needs of the parties with those of the public. Yakus v. United States, 321 U.S. 414, 64 S. Ct. 660, 88 L. Ed. 834 (1944). Moreover, in a taxpayer's suit, with which we are confronted here, an examination and evaluation of public interest will necessarily include the balancing of the equities among the respective parties. Accordingly, we adopt the four-point standard as the appropriate guide for our determination as to whether or not a preliminary injunction should issue in these cases.

 The principal challenge to the Act rests upon the Establishment Clause of the First Amendment to the Federal Constitution. The First Amendment prohibits the Congress from making any "law respecting an establishment of religion, or prohibiting the free exercise thereof". The Fourteenth Amendment applies these prohibitions to state action. Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).

 "The theory behind the First Amendment's Establishment Clause proscription is simply stated. In order that any funds, goods, or services granted by the state do not have the impermissible effect of advancing religion, the state must see that the effects of any such grant will not permit of their being put to religious uses." Americans United for Sep. of Church and State v. Oakey, supra, 339 F. Supp. at 549, citing Board of Education v. Allen, 392 U.S. 236, 88 S. Ct. 1923, 20 L. Ed. 2d 1060 (1968); Tilton v. Richardson, 403 U.S. 672, 91 S. Ct. 2091, 29 L. Ed. 2d 790 (1971); Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), and The Supreme Court, 1970 Term, 85 Harv. L. Rev., at 172 (1971). Plaintiffs assert that funds allocated pursuant to this Act violate the Establishment Clause because of the predominately religious character of the nonpublic schools whose fiscal stability the challenged statute is designed to promote. Information provided by the Office of Nonpublic School Secular Education discloses that the number of nonpublic schools recorded in that office as of November 28th, 1972, totalled 752. The breakdown was as follows: Religious affiliated Catholic ...

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