California

AMENDMENT LANGUAGE

State Constitutional Provisions

Cal. Const. art. IX, § 8: "No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State."

Cal. Const. art. XVI, § 5: "Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever; provided, that nothing in this section shall prevent the Legislature granting aid pursuant to Section 3 of Article XVI."

IMPLEMENTING STATUTES AND REGULATIONS

Statutes

Cal. Educ. § 60044: "No instructional materials shall be adopted by any governing board for use in the schools which, in its determination, contains:

(a) Any matter reflecting adversely upon persons because of their race, color, creed, national origin, ancestry, sex, handicap, or occupation.
(b) Any sectarian or denominational doctrine or propaganda contrary to law."

RELEVANT CASES

State Courts

· California Statewide Communities Development Authority v. All Persons Interested in the Matter of the Validity of a Purchase Agreement, 10 Cal. Rptr. 3d 803, 116 Cal. App. 4th 877 (2004) (The court affirmed judgment finding proposals for the issuance of tax-exempt bonds for the benefit of religious schools had violated Cal. Const. art. XVI, § 5. Also, where schools were pervasively sectarian, conduit financing had the direct and substantial effect of aiding religion). California Supreme Court granted review.

Park Access and Restoration Committee v. City of Laguna Niguel, 2004 Cal. App. Unpub. LEXIS 8165 (2004) (California constitutional provisions prohibiting support of nonpublic schools were not violated by the city's issuance of a permit to a parochial school for the exclusive use of a city park for three hours on weekdays to conduct physical education classes).

Wilson v. State Bd. of Educ., 89 Cal. Rptr.2d 745, 75 Cal. App. 4th 1125 (1999) (Charter Schools Act does not offend state constitutional provisions prohibiting the appropriation of public money for the support of sectarian or denominational schools).

California Teachers Ass'n v. Riles, 176 Cal. Rptr. 300, 29 Cal.3d 794, 632 P.2d 953 (1981) (provision of California Education Code superintendent of public instruction to lend textbooks used on public schools to students attending nonpublic schools, and which provided funds for that purpose were in violation of this section).

Board of Trustees of Leland Stanford Jr. University v. Cory, 145 Cal. Rptr. 136, 79 Cal.App.3d 661 (1978) (payment of funds in the amount of tuition for education directly to a student or to a public or private school on behalf of a special student who designates the school of his choice is not unconstitutional, since any benefit to private school is an "incidental" or "indirect" effect of the direct benefit to the student).

Johnson v. Huntington Beach Union High School Dist., 137 Cal. Rptr. 43 (Cal. App. 1977) (Permitting a Bible study club to meet and conduct its activities on a school campus during the school day violated the California constitutional provisions prohibiting public support of religious activities).

California Educational Facilities Authority v. Priest, 116 Cal.Rptr. 361, 12 Cal.3d 593, 526 P.2d 513 (1974) (fact that an institution of higher education is affiliated with, or governed by, a religious organization is insufficient, without more, to establish that state aid to that institution impermissibly advances religion).

Gordon v. Board of Ed. of City of Los Angeles, 78 Cal.App.2d 464, 178 P.2d 488 (1947) (provision in California Education Code allowing that pupils with written consent of parents may be excused from schools to participate in religious exercises or to receive religious instruction does not violate this section, though expense of preparation of literature and registration cards was paid by school system).

Bowker v. Baker, 73 Cal.App.2d 653, 167 P.2d 256 (1946) (portion of California Education Code permitting school districts to transport pupils of private schools at public expense did not infringe upon this section, prohibiting appropriation of public funds in aid of religious sects or in support of any denominational schools).

Evans v. Selma Union High School Dist. of Fresno County, 193 Cal. 54, 222 P. 801 (1924) (The King James version of the Bible is not a sectarian book, the purchase of which for a school library would violate Const. Art. 1, § 4, as to religious freedom, Art. 4, § 30, or this section, prohibiting appropriations of public money for sectarian purposes, or Pol.C. § 1607, subd. 3 (repealed), and § 1672 (repealed), requiring exclusion of sectarian, partisan, or denominational publications from schools and school libraries, because there are differences between it and other versions, or because it is of protestant authorship, used in Protestant Churches, and not approved by the Roman Catholic Church; the mere act of purchasing it carrying no implication of adoption of the dogma therein).

Boys' & Girls' Aid Soc. v. Reis, 71 Cal. 627, 12 P. 796 (1887) (provision of penal code [repealed in 1937], authorizing courts to suspend final judgment any conviction against a minor for a misdemeanor or felony, to commit him to the custody of the managers of a nonsectarian charitable institution conducted for the purpose of reclaiming minors, and, in their discretion, to direct payment of the expense of his custody in such institution to be made from the funds of the county where the criminal proceeding is pending, was constitutional; and was not in conflict with Const. Art. IX, § 8, since the latter provision of this section refers to common and public schools, such as are organized for the sole purpose of disseminating knowledge, and imparting scholastic instruction).

Federal Courts

· Barnes-Wallace v. Boy Scouts of America, 275 F. Supp. 2d 1259 (S.D. Cal. 2003) (City's long-term lease of public parkland to the BSA violated state and federal Establishment Clauses and the state constitution's No Preference and No Aid Clauses. A reasonable observer would perceive an advancement of religion as a result of the failure to use a neutral process in selecting lessees for the parklands). Granted review by Ninth Circuit.

Brown v. Woodland Joint Unified School Dist., 27 F.3d 1373 (9th Cir. 1994) (school district's use in grades one through six of teaching aid which asked children to discuss witches or create poetic chants did not violate California constitutional section providing that no sectarian or denominational doctrine shall be taught, or instruction thereon be permitted, directly or indirectly, in any of common schools of state; teaching aid was chosen for reasons unrelated to religion of witchcraft and use of teaching aid did not appear to endorse religion of witchcraft).

Walker v. San Francisco Unified School Dist., 741 F.Supp. 1386 (1990) (religiously neutral school located on premises of charitable and religiously affiliated organization was not sectarian or denominational, and thus, this Art. IX, sec. 8 was not violated by use of public funds at school; although school was not funded entirely by public funds, school was modeled after and controlled by public school system, and, with respect to education and instruction, school was under exclusive control of public school system).

SECONDARY MATERIALS

State Attorney General Opinions

76 Op. Atty. Gen. 52 (1993) (Pursuant to the Civic Center Act, California has established a "civic center" [designated public forum] in its public schools, thereby permitting the state to allow religious organizations which lack suitable facilities limited access to public school facilities for use on Sunday, or other noninstructional time, so long as the organization is charged an amount at least equal to the school district's direct costs).

64 Op. Atty. Gen. 61 (1981) (A private school, not church-operated, offering a religious-oriented curriculum or related religious activities on a voluntary basis could constitutionally qualify to receive voucher funding if the effect of the government aid had only a "remote, indirect, and incidental" effect upon religion and adequate provisions were made to ensure that the public funds thus provided were used only for secular purposes; however a private school, not church-operated that "mandates" its pupils to participate in a religious- oriented curriculum would be eligible for such voucher funding only if it met the criteria by which a voluntary religious program would be tested and, in addition, the school were determined not to be a "sectarian" or "religious" school).

29 Op. Atty. Gen. 91 (1957) (With proper statutory authority, there is probably no constitutional objection to the furnishing by the State without charge State adopted textbooks to colleges and universities operated by private persons, corporations, or churches with accredited teacher training programs, for primary purpose of acquainting students in teacher training courses with State adopted books then in use).

25 Op. Atty. Gen. 316 (1955) (Religious prayers may not be made part of the curriculum of the public schools; the Gideon Bible may not constitutionally be distributed through the facilities of the public school system; selections from recognized version of the Bible may not be read in schools for religious purposes, though the Bible may be used for reference, historical, or other nonreligious purposes).

Books and Articles

Appropriation of Public Funds to Private Schools, 42 A.B.A.J. 160 (1956).

Establishment Clause and the California Textbook Loan Programs: California Teacher Association v. Riles, 9 PEPP. L. REV. 960 (1982).

Toward the Logical and Consistent Adjudication of Establishment Clause Cases, 5 W. ST. U.L. REV. 117 (1977).

Timothy J. Blied, Case Note, Limitations on Permissible State Aid to Church-Related Schools Under the Establishment Clause: Wolman v. Walter, 5 PEPP. L. REV. 573 (1978).

Myron Blumberg, Comment, Limitation on State Power to Give Material Aid and to Compel Conduct with Respect to Religion, 26 S. CAL. L. REV. 186 (1952).

Margaret C. Crosby, New Frontiers: Individual Rights Under the California Constitution, 17 HASTINGS CONST. L.Q. 81 (1989).

Anthony P. De Marco, Note and Comment, Vouchers: The Unconstitutionality of State-Funded Scholarship Redemption at California Religious Institutions, 22 WHITTIER L. REV. 1161 (2001).

William Klein, Education Code Section 37113--Permitting Parochial School Children to Attend Public School Classes Violates California Constitution, 24 SANTA CLARA L. REV. 947 (1984).

Gerald A. Kurland, Textbook Loans to Sectarian Schools, 70 CAL. L. REV. 959 (1982).

David W. Louisell and John H. Jackson, Religion, Theology, and Public Higher Education, 50 CAL. L. REV. 751 (1962).

Steven R. Van Sicklen, Comment, Use of Public Funds by Private Schools via Educational Vouchers, 3 PAC. L.J. 90 (1972).

Other

Public and Private Higher Education in California, Report of Joint Committee on Higher Education, Supp. to Appendix to the Journal of the Assembly, Reg.Sess. 1969.

State Aid to Private Medical Schools, Report of Assembly Interim Committee on Ways and Means, Vol. 21, No. 20, 1965 to 1967, p. 16. Vol. 2 of Appendix to Journal of Assembly, Reg.Sess. 1967.

REPEAL EFFORTS

Amendment of § 8, proposed by Senate Const. Amend. No. 40 (1982), was rejected in the general election held Nov. 2, 1982.

See the Heritage Foundation website for a list of state contacts.