Hampden. Civil action commenced in the Superior Court on October 27, 1976. The case was heard by Cross, J., on a motion to dismiss. The Supreme Judicial Court granted a request for direct appellate review.
Hennessey, C.j., Quirico, Braucher, Kaplan, Wilkins, Liacos, & Abrams, JJ.
Constitutional Law, "Anti-aid" amendment, Use of public money or property, Schools. Education. School and School Committee.
The opinion of the court was delivered by: Kaplan
Statute 1973, c. 1196, amending G. L. c. 71, § 48, by providing that a school committee of a municipality, at the individual request of a pupil in a private school approved under § 1 of c. 76, shall lend free of charge to him textbooks which shall be the same as those purchased by the committee for use in the public schools, is unconstitutional on its face as authorizing the "use" of public property in "maintaining or aiding" private primary or secondary schools in violation of the text and purposes of art. 103 of the Amendments to the Massachusetts Constitution, recasting § 2 of art. 46 of the Amendments. [39-44]
Discussion of cases of the United States Supreme Court bearing on the present decision. [44-47]
Limits of the present decision considered. [47-48]
The court is presented with the question whether a statute requiring school committees to loan textbooks to pupils attending private schools (sectarian and nonsectarian) offends against the provision of the Constitution of the Commonwealth which forbids the use of public money or property "for the purpose of founding, maintaining or aiding" such schools.
1. Statement. Thirteen taxable inhabitants of Springfield (see G. L. c. 40, § 53) sued the local school committee in the Superior Court for Hampden County seeking a declaration and eventual injunctive relief that would prevent the committee from expending money for textbooks under the second paragraph of G. L. c. 71, § 48, which they claimed to be unconstitutional. The Attorney General was allowed to intervene in the action, *fn2 and the defendant and intervenor moved to dismiss the complaint for failure to state a claim. *fn3 The motions were granted without opinion, and from the ensuing judgment the plaintiffs appealed. We granted direct appellate review.
2. The complaint. The complaint (as somewhat amplified by an agreed statement) *fn4 ran thus. By St. 1973, c. 1196 (with amendment by St. 1975, c. 652), the following was added to G. L. c. 71, § 48, which in its first paragraph contains a general authorization of school committees to purchase textbooks and other school supplies: "The committee, at the individual request of a pupil in a private school which has been approved under section one of chapter seventy-six, *fn5 and which does not discriminate in its entrance requirements on the basis of race or color, *fn6 shall lend free of charge to him text books which shall be the same as those purchased by the committee for use in the public schools. Such text books shall be loaned free to such pupils subject to such regulations as the committee may prescribe."
The defendant school committee made preparations to carry out the quoted provision, specifying a line item expenditure of $200,000 in its 1976-1977 budget for the purchase of textbooks for use by children attending private elementary and secondary schools in Springfield. (This was approximately 32% of the total authorized budget for textbooks and library books.) The committee also adopted a "Procedure for Ordering Textbooks for Pupils Attending Private Schools." Pupils could sign up for the books by subject and grade at their respective schools, and school officials would forward the lists to the Springfield school department. Vendors were to deliver the books direct to the schools where they would be stamped with the Springfield public school stamp, and issued to the pupils. In the spring the books would be inventoried at the schools, and those books requested by pupils for the following year were to be collected and stored at the schools, the others returned to the school department by mutual arrangement.
In view of potential litigation, the school committee on advice of counsel did not expend the $200,000 for the stated purpose but transferred the sum to other accounts; *fn7 nor was any amount budgeted for the book loans for 1977-1978.
The plaintiffs alleged, and now argue, two constitutional points. First, they say the statutory provision is invalid on its face under the terms of our "anti-aid" amendment -- art. 46 of the Amendments to the Constitution of the Commonwealth. Second, conceding that the Supreme Court has held textbook loan provisions similar to that in question here to be not invalid on their face under the "no-establishment" clause of the First Amendment, the plaintiffs say that the Court has left open the possibility under that clause that a particular program could be held unconstitutional on a ...