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Resnick v. East Brunswick Township Board of Education

June 26, 1975

ABRAHAM RESNICK, PLAINTIFF,
v.
EAST BRUNSWICK TOWNSHIP BOARD OF EDUCATION, REFORM TEMPLE OF EAST BRUNSWICK, EAST BRUNSWICK BAPTIST CHURCH, NATIVITY EVANGELICAL LUTHERAN CHURCH OF EAST BRUNSWICK, DEFENDANTS



Furman, J.s.c.

Furman

Plaintiff citizen and taxpayer seeks to enjoin use of public schools within his municipality for religious services and religious education. He charges violations of the governing statute (N.J.S.A. 18A:20-34) and of the United States and New Jersey Constitutions (U.S. Const., Amend. I and Amend XIV; N.J. Const. (1947), Art. I, par. 3 and par. 4).

The facts established at trial are as follows. Since 1962 defendant board of education has leased school facilities at hours not interfering with the school curriculum and activities to various religious groups, as well as to other nonprofit social, civic, recreational and charitable groups. A rental is assessed approximating the cost of janitorial services, except that if the meeting is for fund-raising purposes or admission is charged, a substantially higher rental is assessed in accordance with a rental schedule. By way of illustration, a religious group would pay $125 for four hours use of an all-purpose room and ten classrooms under the rental schedule, only $18 at present towards the cost of janitorial services.

Defendant East Brunswick Baptist Church rents an all-purpose room in an elementary school for religious services and ten classrooms for religious instruction on Sundays, and the all-purpose room for a prayer meeting on Wednesday

evenings. Bibles, hymnals and a wooden pulpit with a cross are stored in a closet off the all-purpose room, together with school recreational equipment. The East Brunswick Baptist Church owns a five-acre building site in the township, has retained an architect and an engineer and has applied for site plan approval to the township planning board. Its initial rental of public school facilities was in October 1968. Its application was for an indefinite period of time. Defendant board of education has approved yearly renewals.

Defendant Nativity Evangelical Lutheran Church limits its use of the facilities of a second elementary school to 1 1/2 hours of religious instruction in ten classrooms on Sundays, with the all-purpose room as a headquarters. Sunday School literature and materials are locked in a cabinet. The Nativity Evangelical Lutheran Church has its own church in the township for religious services. It has retained an architect, who is working on plans for a religious education building. Its initial rental of public school facilities was in September 1968. Its application was for an indefinite period of time. Defendant board has approved yearly renewals.

Defendant Reform Temple of East Brunswick rents most of a third elementary school building for religious services and religious instruction for five hours on Sundays, its gymnasium for religious services and a social gathering on Friday evenings, and five classrooms for Hebrew language instruction, limited to children of the congregation, on Tuesday and Thursday evenings. Some religious artifacts are stored at the school. The Reform Temple has a building site in the township under option to purchase and has retained an architect. Its initial rental of public school facilities was in March 1973. Its application was for an indefinite period of time. Defendant board has approved yearly renewals.

Defendant board is limited in its exercise of powers to those granted expressly or by necessary or fair implication in state legislation. Botkin v. Westwood, 52 N.J. Super. 416, 427 (App. Div. 1958), app. dism. 28 N.J. 218 (1958).

N.J.S.A. 18A:20-34 authorizes boards of education to permit use of school facilities, when not in use for school purposes, for:

a. The assembly of persons for the purpose of giving and receiving instruction in any branch of education, learning or the arts, including the science of argiculture, horticulture and floriculture;

c. The holding of such social, civic and recreational meetings and entertainments and such other purposes as may be approved by the board.

Purportedly pursuant to this authorization defendant board adopted rules and regulations permitting use of its facilities by "any East Brunswick organization which is non-profit in nature," including, as implemented, religious bodies without preference or distinction among them. No judicial decision is cited in support, and only one administrative ruling, McGuire Air Force Base v. North Hanover Tp. Bd. of Ed., S.L.D. 62 (1963), directing the North Hanover board to permit use of public school facilities owned by the Federal Government, in the absence of any other suitable accommodation, for weekend religious and moral training of dependent children of United States military personnel, an obligation of the Commander of the base to provide by Air Force regulation. In openings allusions were made to a widespread practice in the State of religious use of school buildings during nonschool hours, but the proofs dwindled to one such current use and two such former uses.

Religious uses are not specified in N.J.S.A. 18A:20-34(c), although constitutional and legislative enumeration of "religion" or related terms is commonplace. E.g., N.J. Const. (1947), Art. VIII, ยง 1, par. 2; N.J.S.A. 10:1-3; N.J.S.A. 15:14-6; N.J.S.A. ...


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