Luetkemeyer v. Kaufmann

¶1(dissenting).

¶2I respectfully dissent. I do not think the State of Missouri can validly claim, in the face of the Fourteenth Amendment’s Equal Protection Clause, that it has a valid purpose in promoting the separation between church and state by denying bus transportation for children to church-sponsored schools. Bus transportation is furnished as a health, safety, and welfare measure to those children residing beyond a stated area of the school, and the basis and reason for such salutary service should extend to all school children attending nonprofit, accredited schools. To not do so appears narrow and insensitive of the welfare of nonpublic school attendees. Missouri formerly furnished this service and over one-half of the states now provide transportation to nonpublic, accredited schools. The furnishing on a nondiscriminatory basis of bus transportation to all would not crumble the time-honored wall of church-state separation.

¶3*388The majority holds that the laws of Missouri “can only be interpreted as permitting transportation only to public school pupils” and that such laws do not invidiously discriminate against parochial school children. In applying the traditional test of “reasonable classification,” the majority concludes that “Missouri’s decision to promote the separation of church and state by refusing to provide school bus transportation to church-sponsored school pupils . is not irrational, but promotes a legitimate State purpose.”

¶4My disagreement with the majority’s equal protection analysis is its conclusion that Missouri’s decision to deny bus transportation for pupils to church-sponsored schools has a rational basis in fostering church-state separation. First, even the Missouri legislative policy does not clearly indicate that the history of bus transportation of school children in Missouri has been seen as establishing or aiding any particular religion. From 1939 to 1963, Missouri Revised Statutes § 167.140 provided for bus transportation to “pupils attending private schools of elementary and high school grades, except such schools as are operated for profit.” Clearly, the Missouri legislature thought for years that bus transportation for pupils attending private and nonprofit schools did not violate the Missouri and United States Constitutions or Missouri laws. As discussed by the majority, the Supreme Court of the State of Missouri in McVey v. Harris, 364 Mo. 44, 258 S.W.2d 927 (1953), held that transportation to pupils attending private schools was prohibited by the Constitution of Missouri. However, the question remains whether furnishing bus transportation for public school children, while denying the same to church-sponsored pupils, violates the United States Constitution.

¶5In 1947, the Supreme Court of the United States in Everson v. United States, 330 U.S. 1, 17, 67 S.Ct. 504, 512, 91 L.Ed. 711 (1947), held that the First Amendment did not prohibit “New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as part of a general program under which it pays the fares of pupils attending public and other schools.” The Supreme Court announced that it agreed with New Jersey that the spending of state funds for such bus transportation would not endanger the necessary wall between church and state as required by the First Amendment. It seems to be a strange anomaly also to say, as the defendants argue, that Missouri’s denial of bus transportation for parochial pupils rationally promotes the separation between church and state. The two positions border being contradictory. Can New Jersey make a rational decision that bus transportation for all pupils does not endanger the separation of church and state, while Missouri takes the opposite, but supposedly also rational decision, that the denial of bus transportation for church-sponsored school pupils does promote the separation of church and state? Admittedly, states disagree, for 27 states do provide this questioned type of bus transportation, and 23 states do not. In light of the Supreme Court’s announcement in Eversonand, according to the policies of 27 states, I would say that the only rational decision today is that bus transportation for children to church-sponsored schools does not endanger the separation between church and state.

¶6The factual basis for the classification between public and private school children relating to transportation is bereft of reason, relevance, and logic. In principle, though not factually, this case is similar to Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966), in which a New Jersey statute required unsuccessful appellants who were sentenced to jail to repay the cost of the transcript which the state had furnished. The statute did not require payment from unsuccessful appellants who were only fined or who were given probation or suspended sentences. The Court found that the purpose of the act was to reimburse the state and that the repaying of the transcript’s cost by the *389designated class did not have any relevance to the purpose for which the classification was made. Rinaldi v. Yeager, supra at 309.

¶7Similarly, in this case the parents of church-sponsored pupils are designated as a class that does not receive the benefits of free transportation when the paying of such bus transportation costs by the parents of these children has no relevance to promoting the separation of church and state. If Missouri wanted to be entirely neutral concerning bus transportation, it would require all parents to pay for the bus transportation for their children, rather than providing bus transportation only for public school pupils.

¶8Several facts are particularly bothersome and serve to demonstrate the irrationality of the classification in this contested busing field. The school bus carrying the pupils to public schools passed the Luetkemeyer children, proceeded past the Luetkemeyer’s parochial school, and deboarded the public school children at their school. This absurd result certainly cannot be seriously contended as promoting a “rational” purpose of separation between church and state. The children are all citizens of the same state and country. Their parents all pay the same burdensome taxes imposed on citizens generally, and yet, because of their attendance at privately accredited schools, the Luetkemeyer children walk or use private transportation while others ride at public expense.1 The discrimination is patent^, invidious, and somewhat odious. Further, bus transportation is the safest means of transporting children to school. In view of all these above facts, to which defendants stipulated, it is difficult to perceive how the State can still argue that the denial of bus transportation for children to church-sponsored schools furthers the separation of church and state. Bus transportation is for the benefit of children, not the establishment of any particular religion or school.

¶9The majority emphasizes the Supreme Court’s recent decision of Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973). The Court did say in dicta that a state could rationally conclude as a matter of legislative policy that “constitutional neutrality as to sectarian schools might best be achieved by withholding all state assistance.” Norwood v. Harrison, supra at 462, 93 S.Ct. at 2809 (citation omitted). However, the Court in Norwoodwas presented with a much different factual situation than in this case. In Norwood, the Court held that Mississippi could not lend textbooks to school children who attended private schools that were admittedly discriminating on a racial basis. The Court noted that private schools in Mississippi had grown from 17 in 1963-64 to 155 in 1970 with a virtually all-white student enrollment. In effect, the funding of this textbook program by Mississippi was partially financing a racially discriminatory private educational system. The inapplicability of Everson and Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), to Norwoodconcerning the providing of public assistance to sectarian schools must be viewed in connection with Mississippi’s program to provide textbooks to children who were attending virtually all-white private schools that had grown nine-fold at the same time that integration was beginning to be effectively implemented in Mississippi. In the case at bar, the parents, who merely desire state-supplied bus transportation for the safety of their children, are only asserting their constitutional rights and are not attempting to further unconstitutional practices, as were the parents in Norwood. In addition, this service is for the benefit of the children, not the school.

¶10*390I would hold that Missouri’s denial of bus transportation for pupils to church-sponsored schools constitutes a clear violation of the Equal Protection Clause of the Fourteenth Amendment. Missouri does not have to furnish bus transportation at all, but having decided as a matter of state policy to furnish such transportation for the welfare and safety of public elementary and high school students, that transportation should be open to all students attending accredited schools.

¶11The Equal Protection standard of Eisenstadt v. Baird, 405 U.S. 438, 446-447, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), that persons standing in the same relationship to the governmental action challenged should be uniformly treated, means that children attending private schools should be afforded the same safety and welfare measures of protection in attendance as those attending public schools, no more, no less. Common justice requires it.

¶12In giving substance and reality to the Equal Protection Clause, the Supreme Court said:

“In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly, 113 U.S. 27 [5 S.Ct. 357, 28 L.Ed. 923] (1885); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 [31 S.Ct. 337, 55 L.Ed. 369] (1911); Railway Express Agency v. New York, 336 U.S. 106 [69 S.Ct. 463, 93 L.Ed. 533] (1949); McDonald v. Board of Election Commissioners, 394 U.S. 802 [89 S.Ct. 1404, 22 L.Ed.2d 739], (1969). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similai’ly circumstanced shall be treated alike.’ Royster Guano Co. v. Virginia, 253 U.S. 412, 415 [40 S.Ct. 560, 561, 64 L.Ed. 989] (1920).”

¶13Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253-254, 30 L.Ed.2d 225 (1971).

¶14I would hold that the Missouri statutes denying bus transportation to nonpublic school children are unconstitutional and issue an injunction against their enforcement.