On appeal from the Superior Court, Appellate Division, whose opinion is reported at 144 N.J. Super. 474 (1976).
For reversal -- Chief Justice Hughes and Justices Sullivan, Pashman, Schreiber and Handler. For affirmance -- Justice Clifford and Judge Conford. The opinion of the court was delivered by Pashman, J. Clifford, J., dissenting. Judge Conford joins in this opinion. Conford, P.J.A.D. (temporarily assigned), dissenting).
The relationship of church and state has become one of the most sensitive areas in the law. Permitting religious observances to take place on public school property raises important and vexing constitutional issues. To some persons, use of school premises by any group necessarily carries with it the appearance of government approval of that body and its activities. Thus, whenever an issue involving the use of school property for religious purposes arises, our inquiry must be particularly searching. The specific controversy in this appeal concerns the extent to which public school facilities may be used for religious instruction and services when they are not being used for regular educational purposes.
Since 1962 defendant East Brunswick Township School Board has allowed a number of local groups to use its school facilities during non-school hours. The lessees of school premises have included various religious groups as well as other nonprofit social, civic, recreational and charitable groups. The diversity and plenitude of the organizations using the school are reflective of Board policy, related in its "Rules and Regulations Governing Use of East Brunswick School Facilities."
I. Statement of Philosophy
It is the feeling of this Board of Education that each of the East Brunswick Public Schools, build [ sic ] and maintained through the expenditure of public funds, should be utilized to the fullest extent possible by East Brunswick community groups and agencies. Provisions for the control and protection of these facilities as hereafter established emanate from the Board's position as the responsible body for the upkeep and maintenance of such facilities.
A rental is assessed which approximates the cost of janitorial services.*fn1 Where a group is using the facilities for fund raising purposes or if admission is charged, a substantially higher rental is assessed in accordance with a published rental schedule.*fn2 The Board's policy provides that applications for use of the school premises be made to the principal of the school involved. Groups such as religious organizations which use the facilities on a steady basis for an indeterminate period make annual reapplications. This was done by all of the religions organizations discussed herein.
Starting in 1969 the East Brunswick Baptist Church had rented an all-purpose room in an elementary school for religious services and ten classrooms for religious instruction on Sundays. The all-purpose room was also rented for Wednesday evening prayer meetings. Bibles, hymnals and a wooden pulpit with a cross were stored in a closet off the all-purpose room, along with school recreational equipment. The Church owned a five-acre building site in the township and as of the trial date had retained an architect, an engineer and had applied for site plan approval to the township planning board. At the time of oral argument before this Court, the East Brunswick Baptist Church no longer used the school.*fn3
Nativity Evangelical Lutheran Church began renting facilities in an elementary school in September 1968. It
used the school for religious instruction on Sundays, occupying the all-purpose room and some ten classrooms. Sunday school literature and materials were locked in a cabinet. The Church has a separate building for worship. At the time of the trial the Church had employed an architect to plan an addition to its building for purposes of having classrooms for religious education. At present, the Lutheran Church is not making use of school facilities.
Since March 1973 the Reform Temple of East Brunswick has rented most of an elementary school building for services and instruction for five hours on Sundays. It also rents the gymnasium for religious services and social gatherings on Friday evenings and five classrooms for Hebrew language instruction for children on Tuesday and Thursday evenings. A few religious artifacts were stored in the schools. The Reform Temple had an option to purchase a building site at the time of the trial and had also retained an architect. However, the building has not been completed, and use of the school continued as of the date of oral argument.*fn4
Upon learning of the use of East Brunswick schools for religious purposes, plaintiff Abraham Resnick complained to the Board of Education. When the Board did not take any action to prevent the religious groups from using the schools, Resnick filed a complaint in the Chancery Division in October 1974. He alleged that use of the schools by religious groups violated N.J.S.A. 18A:20-34, the statute governing the operation of public school facilities, and the federal and state constitutions. All three religious groups intervened as third party defendants.
The trial judge, in an opinion reported at 135 N.J. Super. 257 (Ch. Div. 1975), held that N.J.S.A. 18A:20-34 neither contemplated nor permitted the use of public schools by religious groups for worship services but that Sunday School and Hebrew instruction were within the purview of the statute's permitted uses. However, the judge went on to hold that even a use limited to education involved some small outlay of taxpayer funds for utilities and thus violated the prohibition against public expenditures in support of religion found in N.J. Const. (1947), Art. I, par. 3. Nevertheless, he indicated that a rent schedule based on actual costs of utilities, administrative and janitorial services would cure that state constitutional difficulty.
The judge also held that the use of schools for religious worship and instruction violated the First and Fourteenth Amendments of the United States Constitution. He alluded to the significant financial benefit provided to the religious groups which used schools indefinitely and which were thus enabled to avoid making expenditures for other facilities at commercial rental rates or for constructing their own buildings. The judge also found administrative entanglement in record keeping and scheduling by employees of the Board, and political entanglement in subjecting defendant Board's members to pressures by those in favor of and those opposed to religious use of public school facilities. The court also found excessive entanglement in the storage of religious artifacts and books in school buildings where they were accessible to children during school hours.
The court limited its decision by indicating that its ruling did not deal with the rental of public school facilities to religious groups at rental rates approximating that which would be charged on the open market for comparable private facilities. Nor did it cover temporary use of public school facilities during emergencies such as after a fire or flood. The Board was given 45 days in which to submit a proposal for continued use of the facilities for a fixed time in order to allow the defendant religious organizations to secure other accommodations. The Board's proposal as slightly modified was included in the court's Final Judgment and Order of December 1, 1975. In essence, the religious groups*fn5 were permitted to continue using public school facilities for a period of one year at a rate approximating the cost paid by
the Board for the rental of classroom space in a local church building which was used to handle pupil overflow. No religious artifacts were to be stored in the schools.
Both the Reform Temple and the Board appealed. Upon consolidating these appeals the Appellate Division heard arguments and affirmed "substantially for the same reasons" expressed by the trial court. 144 N.J. Super. 474 (App. Div. 1976). The Board and Reform Temple appealed as of right pursuant to R. 2:2-1. Plaintiff cross-appeals. Of the original defendants, only the Board and Reform Temple appeared before this Court. We granted the New Jersey Council of Churches' petition to intervene as a party defendant on appeal.
Pursuant to N.J.S.A. 18A:20-34, boards of education are permitted to adopt rules by which school properties may be used when not in use for school purposes. That statute provides in pertinent part:
The board of education of any district may, pursuant to rules adopted by it, permit the use of any schoolhouse and rooms therein, and the grounds and other property of the district, when not in use for school purposes, for any of the following purposes:
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 agriculture, 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; * * *.
We fully concur in the view of the courts below that N.J.S.A. 18A:20-34(a) contemplates religious educational programs as well as secular ones. See Lewis v. New York City Bd. of Ed., 157 Misc. 520, 285 N.Y.S. 164, 169-170 (Sup. Ct. 1935). However, we disagree with the
trial judge's conclusion that N.J.S.A. 18A:20-34 does not contemplate, among a myriad of possible uses of school property, the holding of religious services during non-school hours. The reasons given for this conclusion are unpersuasive. The maxim expressio unius est exclusio alterius is invoked for the proposition that since religious purposes are not listed in N.J.S.A. 18A:20-34(c), the only section which arguably authorizes school use for religious services, such use is impliedly excluded. However, this maxim is merely an aid in construction. Reilly v. Ozzard, 33 N.J. 529, 539 (1960). "The final question is whether in a given context an express provision with respect to a portion of an area reveals by implication a decision with respect to the remainder. The issue is one of intention. The answer resides in the common sense of the situation." Id., see 2A Sutherland, Statutory Construction, § 47.24 at 127 (Sands. ed. 1973). As we held in Gangemi v. Berry, 25 N.J. 1, 11 (1957), the maxim does not carry the weight of a rule of law and is to be applied with great caution, and not arbitrarily or in a manner at variance with its true purpose.
Had N.J.S.A. 18A:20-34(c) merely provided for "civic, educational and recreational" use, the legislative intent might aptly be termed as limiting the use of school premises exclusively to those items listed. However, such a construction would render the following phrase, "and such other uses as may be approved by the board," meaningless. Moreover, the absence of a qualifying term such as "like," "similar" or "related," with respect to the above phrase, indicates that the legislature intended to grant wide discretion to boards of education in such matters. Thus, additional uses are not strictly limited to civic, social and recreational uses.
The trial judge also concluded that religious services could not have been contemplated under N.J.S.A. 18A:20-34 because of the absence of any mention of such uses therein, while religious purposes were specifically listed in other statutes. 135 N.J. Super. at 161. However, those
statutes considered by the trial judge which do mention religion have as their purpose the creation of specific rights for religious bodies. See N.J.S.A. 15:14-6 (granting religious and other charitable groups the power to own, manage and convey property); N.J.S.A. 45:24-7 (exemption of religious groups from licensing requirements); N.J.S.A. 10:1-3 and N.J.S.A. 18A:38-5.1 (the civil rights of religious and other groups); N.J. Const. (1947), Art. VIII, § 1, par. 2 (the constitutional tax exemption for religious bodies).*fn6 In contrast, N.J.S.A. 18A:20-34 was never intended as a specific grant of a right or privilege to religious groups. Rather, the object of that enactment was merely to entrust to local school boards, within certain guidelines, the determination of the uses beyond the purely educational to which school property might be devoted. Literal application of the approach utilized by the trial judge would entail prohibiting from being considered as a permissible school use any item addressed specifically in another statute and not so addressed in N.J.S.A. 18A:20-34. Such an interpretation would be greatly at odds with the discretion granted to boards of education by the plain wording of N.J.S.A. 18A:20-34.
Plaintiff also invites us to apply the principle of ejusdem generis, a maxim to the effect that where general words follow specific enumeration, the general words are only applicable to the same general class of things already specifically mentioned, in construing the statute. See Sutherland, supra, § 47.17 at 103. Even assuming that this maxim is properly applicable, we do not find that it would preclude statutory authorization for religious services in the schools.
The listed activities include social, civic and recreational meetings and entertainments. Common denominators for all of these activities include group interaction, emotional release, regular participation of a portion of the community and character building. Religious services would certainly seem to include all of these beneficial characteristics. Plaintiff complains that only those sects using the schools are benefited by this policy. While these ceremonies admittedly benefit only the particular sect involved, the same observation holds true with respect to use of the gym by a basketball league or use of school premises by any other group. If every activity in a school had to be shown to benefit directly each person in the entire community, little other than education would go on in school buildings, thus defeating the basic aim of N.J.S.A. 18A:20-34.
More importantly, use of public schools on a temporary basis by religious groups is a long-standing tradition in New Jersey. In East Brunswick Township itself, use of public school buildings for religious services and meetings was common in the Nineteenth Century. In that period the Church of the Holy Trinity at Washington, the Washington Methodist Episcopal Church and the Simpson Methodist Church of Old Bridge all made use of schoolhouses. W. Woodford Clayton, History of Union and Middlesex Counties, Everts & Peck, Philadelphia, 1882, pp. 771-774. This list of users is certainly not exhaustive with respect to other towns.
Since the practice of having worship services in schoolhouses was not uncommon in the years preceding passage of L. 1913, c. 309, the forerunner of N.J.S.A. 18A:20-34, it may reasonably be presumed that the absence of an express declaration to the contrary is strong evidence that the Legislature did not intend to prohibit this long-standing practice. This has continued since passage of the Act. In fact, the defendant in this case lists a dozen instances within the past 25 years wherein religious groups used school premises on a temporary basis during non-school hours.
We conclude that there is no statutory bar to religious services or instruction being carried out in public schools during periods where those facilities are not required for regular educational activities.
State Constitutional Grounds
In order to put the remaining issues in the instant case in proper perspective, we note that the use of the schools by these religious groups was on the same terms and at the same rates as for the other non-profit groups. Nothing in the record indicates that the religious groups' use of facilities was so time consuming as to effectively prevent other groups from the use and enjoyment of the schools at non-instructional times. In fact, at oral argument counsel for the New Jersey Council of Churches indicated that had demand for school facilities by various groups outstripped their availability, an equal distribution of available time slots would have been proper. This method was deemed superior to granting churches or any other groups all the time they wanted while totally precluding the use of facilities by other organizations. Moreover, the record indicates that on occasion several of the religious groups were preempted, or denied use of the school building in question, so that school-related activities could go on. The Rabbi for the Reform Temple indicated that on more than one occasion his group was ousted on less than 24 hours' notice. No school-related activity has ever been interfered with by religious groups.
Thus, the real issue is whether the state or federal constitutions require a special treatment for religious groups, such that out of all non-profit groups only those religiously affiliated are constitutionally prohibited from the use of school premises. We start by noting that our state constitution contains a provision which, fairly read, specifically prohibits the use of tax revenues for the maintenance or support of a religious group.
No person shall be deprived of the inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience; nor under any pretense whatever be compelled to attend any place of worship contrary to his faith and judgment; nor shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform.
[ N.J. Const. (1947), Art. I, par. 3]
This constitutional position is not carried to an extreme. In Clayton v. Kervick, 56 N.J. 523, 529 (1970), vacated and remanded 403 U.S. 945, 91 S. Ct. 2274, 29 L. Ed. 2d 854 (1971), on remand 59 N.J. 583 (1971), Chief Justice Weintraub observed that "[n]o one suggests that the State must withhold such general services as police or fire protection, even though the property is exempted from general taxation because of its sectarian use," citing Walz v. Tax Commission, 397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697, 703 (1970); Bd. of Ed. of Central School District No. 1 v. Allen, 392 U.S. 236, 242, 88 S. Ct. 1923, 20 L. Ed. 2d 1060, 1065 (1968). However, the public obligation of fire protection is distinguishable from a school board's permitting a religious group to rent school property during free hours.
We conclude that N.J. Const. (1947), Art. I, par. 3, prohibits any lease arrangement between a school board and religious groups under which the out-of-pocket expenses of the board directly attributable to the use by the religious body are not fully reimbursed. We affirm the holding below that this constitutional infirmity may be remedied by an upward adjustment of rentals to religious groups which would fully cover extra utility, heating, administrative and janitorial costs which result from the leasing by these groups.
In view of our holding that the state constitution does require that religious organizations be singled out among nonprofit groups in general as being ineligible for
certain benefits which are partly subsidized by tax-generated funds, we must go on to determine whether they are further singled out by a total prohibition on their use of school premises. The relevant constitutional provisions are the following:
N.J. Const. (1947), Art. I, par. 4
4. Establishment of religious sect; religious or racial test for public office.
There shall be no establishment of one religious sect in preference to another; no religious or racial test shall be required as a qualification for any office or public trust.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The East Brunswick schools were open to any religious group which wished to use them. No allegation of preference of one group over another has been made. In Clayton v. Kervick, supra, 56 N.J. at 528, Chief Justice Weintraub, in comparing these two provisions, indicated that "[o]ur State provision is less pervasive, literally, than the federal provision." He limited discussion of the constitutionality of the Educational Facilities Authority Law, N.J.S.A. 18A:72A-1 et seq. to the federal provision as interpreted by the United States Supreme Court. We adopt his conclusion, as N.J. Const. (1947), Art. I, par. 4, does not appear to cover the instant fact situation since no one religious sect was preferred over other sects. Thus, the remainder of our discussion is directed to the validity, under the First Amendment to the Federal Constitution, made applicable to the states by the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed. 1213, 1218 (1940), of religious groups using school property for religious instruction and services.
Federal Constitutional Grounds
The First Amendment requires strict governmental neutrality with respect to religion. Since it is applicable to the states, the broad scope of the amendment directs that government ". . . shall make no law respecting an establishment of a religion, or prohibiting the free exercise thereof." These two provisions are in tension. "Where the 'establishment clause' confronts the 'free exercise clause,' the founding fathers who drew this constitutional provision intended that the 'free exercise clause' be dominant." Valent v. N.J. State Bd. of Ed. et. als., 114 N.J. Super. 63, 72 (Ch. Div. 1971). However, this is not a free exercise case.
[ Abington School District v. Schempp, 374 U.S. 203, 223, 83 S. Ct. 1560, 1572, 10 L. Ed. 2d 844, 858 (1963)]
The only issue of concern to us is whether permitting religious groups to rent public school facilities at a rate reflective of the cost incurred by the school board as a result of such use runs afoul of the "establishment clause."
The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
That Amendment requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary.
[ Everson v. Bd. of Education, 330 U.S. 1, 15-16, 18, 67 S. Ct. 504, 511-512, 513, 91 L. Ed. 711, 723, 724-5 (1947)]
While there is a split among jurisdictions as to whether it is constitutionally permissible for public school premises to be used for religious purposes, see Anno: "Schools -- Use for Religious Purposes", 79 A.L.R. 2d 1148, § 4 at 1163 (1961), the only case within the last 35 years which addressed the federal constitutional issue upheld the use. In Southside Estates Bapt. Church v. Bd. of Trustees, 115 So. 2d 697 (Fla. Sup. Ct. 1959) the Supreme Court of Florida held that public schools could be used temporarily as a place of worship during non-school hours. The record did not indicate whether rent was paid by the users or expenses were incurred by the school trustees. The relevant Florida statute, Fla. Stat. Ann. § 235.02, permitted use of school buildings during non-school hours "for any legal assembly." The court rejected the view that the public was impermissibly subsidizing religion.
Taking note of appellant's insistence that the use of the building is something of value and that the wear and tear is an indirect contribution from the public treasury, it appears to us that we might properly apply the maxim De minimis non curat lex.
The court also found that no impermissible preference for one sect over another existed since four or five religious groups had been accorded the same treatment. However, the court indicated that its decision might have been different had the case involved a ...