Missouri

 

AMENDMENT LANGUAGE

State Constitutional Provision

·       Mo. Const. art. I, § 5: “That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no human authority can control or interfere with the rights of conscience; that no person shall, on account of his religious persuasion or belief, be rendered ineligible to any public office or trust or profit in this state, be disqualified from testifying or serving as a juror, or be molested in his person or estate; but this section shall not be construed to excuse acts of licentiousness, nor to justify practices inconsistent with the good order, peace or safety of the state, or with the rights of others.”

·       Mo. Const. art. I, § 6: “That no person can be compelled to erect, support or attend any place or system of worship, or to maintain or support any priest, minister, preacher or teacher of any sect, church, creed or denomination of religion; but if any person shall voluntarily make a contract for any such object, he shall be held to the performance of the same.  Const. of 1875, Art. II, § 6.”

·       Mo. Const. art. I, § 7: “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”

·       Mo. Const. art. III, § 38(a): “The general assembly shall have no power to grant public money or property, or lend or authorize the lending of public credit, to any private person, association or corporation, excepting aid in public calamity, and general laws providing for pensions for the blind, for old age assistance, for aid to dependent or crippled children or the blind, for direct relief, for adjusted compensation, bonus or rehabilitation for discharged members of the armed services of the United States who were bona fide residents of this state during their service, and for the rehabilitation of other persons. Money or property may also be received from the United States and be redistributed together with public money of this state for any public purpose designated by the United States.”

·       Mo. Const. art. IX, § 3(b): “In event the public school fund provided and set apart by law for the support of free public schools, shall be insufficient to sustain free schools at least eight months in every year in each school district of the state, the general assembly may provide for such deficiency; but in no case shall there be set apart less than twenty-five percent of the state revenue, exclusive of interest and sinking fund, to be applied annually to the support of the free public schools.” 

·       Mo. Const. art. IX, § 5: “The proceeds of all certificates of indebtedness due the state school fund, and all moneys, bonds, lands, and other property belonging to or donated to any state fund for public school purposes, and the net proceeds of all sales of lands and other property and effects that may accrue to the state by escheat, shall be paid into the state treasury, and securely invested under the supervision of the state board of education, and sacredly preserved as a public school fund the annual income of which shall be faithfully appropriated for establishing and maintaining free public schools, and for no other uses or purposes whatsoever.  Const. of 1875, Art. XI, § 6.”

·       Mo. Const. art. IX, § 8: "Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning 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 county, city, town, or other municipal corporation, for any religious creed, church, or sectarian purpose whatever."

·       Mo. Const. art. X, § 3: “Taxes may be levied and collected for public purposes only, and shall be uniform upon the same class or subclass of subjects within the territorial limits of the authority levying the tax. All taxes shall be levied and collected by general laws and shall be payable during the fiscal or calendar year in which the property is assessed. Except as otherwise provided in this constitution, the methods of determining the value of property for taxation shall be fixed by law.”

Statutes

·       RSMo 161.180 (state school fund)

·       RSMo 161.225 (state school funding)

·       RSMo 162.161 (public school transportation)

·       RSMo 162.996 (education services for handicapped children attending private schools)

·       RSMo 164.010 (compulsory attendance law)

·       RSMo 165.140 – 165.143 (private school transportation - held unconstitutional) RSMo RSMo 167.231 (public school transportation)

·       RSMo 167.251 (public school transportation)

·       RSMo 170.051 (lending of textbooks to all pupils)

·       RSMo 170.055 (lending of textbooks to non-profits schools)

·       RSMo 173.200 - 235 (financial assistance program - direct aid to college students)

 

RELEVANT CASES

State Courts

• Saint Louis University v. Masonic Temple Association, S.W.3d (Mo. 2007), No. SC88075 (Missouri Supreme Court held that the City of St. Louis did not violate the state's "Blaine Amendment" by providing "tax-increment financing" to Saint Louis University, a Jesuit, Catholic University, to assist in the construction of a 13,000-seat arena to be used for secular purposes such as sporting events and graduation ceremonies. While Article IX, Section 8 of the Missouri Constitution forbids state and local government from financially supporting schools "controlled by any religious creed, church or sectarian denomination whatever," the Supreme Court found that the University does not attempt to "indoctrinate the faith" nor is the University controlled by it.)
• Mallory v. Barrera, 544 S.W.2d 556 (Mo. 1976) (“Title I evinces a clear intention that state constitutional spending proscriptions not be pre-empted as a condition of accepting federal funds.”  Further, that Title I funds become “money donated to... a state fund for public school purposes.” and that “use of any part of Title I funds by the state to provide teaching services to elementary and secondary school children on the premises of parochial schools would... violate Article I, section 7, and Article IX, section 8.”  While Article III permits the use of federal money “for any public purpose designated by the United States,” it does not permit the use of funds otherwise proscribed by the Missouri constitution.  In dicta, the court also determined that the use of Title I funds to provide textbooks, library books, reading materials, and transportation to parochial school students is impermissible under the Missouri constitution).
• Americans United for Separation of Church and State v. Rogers, 538 S.W.2d 711 (Mo. 1976) (en banc), cert. denied, 429 U.S. 1029 (1976) (The court upheld a Missouri financial assistance program providing direct tuition grants to college students “to enable qualified full-time students to receive nonreligious educational services in a public or private institution of higher education of their choice.”  The program excluded aid for degrees in theology or divinity. The court found the program to be carefully “designed and implemented for the benefit of the students, not of the institutions and stated that “[i]nstitutions of higher education are able to boast of academic freedom, institutional independence, objective instruction, lack of indoctrination, faculty autonomy, mature students and a diversity of religious background in faculty and students.”)

• Paster v. Tussey, 512 S.W.2d 97 (Mo. 1974) (A statute relating to the lending of school textbooks to all pupils and teachers, whether public or religious created a “free textbook fund” separate from the “Public School Fund” for the likely purpose of overcoming Article IX, Section Five prohibitions.  The court determined that the program, as it related to providing textbooks to private school teachers, clearly violated Article I, Section Six.  Applying the “pupil-benefit theory,” even if the individual child was the primary beneficiary of the textbook, that “individuals… can have and promote the sectarian purpose, and by attending a private school designed for such a purpose do, in fact, promote the sectarian objective for which Art. IX, s 8, prohibits the expenditure of any public funds.”)
• McDonough v. Aylward, 500 S.W.2d 721 (Mo. 1973) (Recovery of personal property taxes paid under protest.  Pro se plaintiff challenged payment of tax dollars used for public education as interfering with his First Amendment right to send his children to private religious school while depriving him of the practical economic means to do so.  The court affirmed dismissal of the suit and held the taxation was not in violation of the First or Fourteenth Amendment).

• Special District for the Education and Training of Handicapped Children of St. Louis County v. Wheeler, 408 S.W.2d 60 (Mo. 1966) (1) Placing publicly funded speech therapists on private school grounds violated the Article IX, Section Five requirement that public school funds shall only be used for “establishing and maintaining free public schools.”  2) State’s compulsory attendance law prohibited the splitting of a student’s daily classroom instruction among two different schools. Hence, parochial school students could not attend speech therapy classes on public facilities during part of their school day).
• McVey v. Hawkins, 258 S.W.2d 927 (Mo. 1953) (Missouri Supreme Court held that a school district’s transportation of grade school children by public school bus for a portion of their trip to and from a private parochial school located outside the school district, at no additional expense to the school district, violated the Missouri constitutional provision prohibiting the expenditure of public school funds in support of sectarian schools).
• Berghorn v. Reorganized School District No. 8, Franklin County, 260 S.W.2d 573 (Mo. 1953) (Taxpayer suit to enjoin school district from providing funds for parochial school.  Religious instruction took place in Catholic churches abutting the school building before the regular school day, and the teachers were nuns accredited and paid by the school district.  The Court determined the “schools to a great degree were ‘managed and administered in a manner to promote the interests and policies of the Roman Catholic Church and of adherents of the Roman Catholic faith’ [and therefore] not entitled to be supported by public school money or public funds.”) 

• Harfst v. Hoegen, 163 S.W.2d 609 (Mo. 1942) (Taxpayer suit to enjoin school district from providing funds for schools operated by a Roman Catholic order.  Customarily, the Catholic students attended mass before school hours, religious instruction was provided during recess periods, and participation by non-catholic children in these activities was not compulsory.  The nuns comprising the teaching staff were paid by the school district.  The court determined that the school was controlled by the Roman Catholic Church and not the school board, and therefore could not receive state funds as prohibited by the Blaine Amendment and various other state constitutional provisions).

Federal Courts

• Felter v. Cape Girardeau School District, 810 F. Supp. 1062 (E.D. Mo. 1993) (Unique needs of a disabled student required transportation of the student to and from the sidewalk of the private school as part of a federal program, and that such transportation did not violate the Missouri Constitution. The services benefited the student, rather than the parochial school, and would not support, benefit, or sustain the private school.  The court’s narrow holding was applicable only to the facts of the case as transportation to a parochial school, rather than between a parochial school and public school would violate the Missouri Constitution).
• Widmar v. Vincent, 454 U.S. 263 (1981) (A regulation of the University of Missouri that created a public forum on its facilities among students groups, but denied access to the public facilities for religious student groups violated the fundamental principle that such regulation of speech must be content-neutral.  Further, that the state’s interest in achieving greater separation between church and state was not sufficiency compelling to justify the discrimination).
• Barrera v. Wheeler, 531 F.2d 402 (8th Cir. 1976) (Remanded. See 475 F.2d 1338).
• Wheeler v. Barrera, 417 U.S. 402 (1974) (The court affirmed finding that petitioner had not done enough for respondent, but held that issue of onsite instruction was not a federal law question. The Act evinced a clear intention that state constitutional proscriptions would not be preempted. The court held that petitioner was not required to provide onsite instruction, the mandate was to provide comparable services. The court held that respondent was not entitled to any particular form of service, and it was petitioner's role, not the court's, to formulate a suitable plan. See 475 F.2d 1338).
• Barrera v. Wheeler, 475 F.2d 1338 (8th Cir. 1973) (Action by parents of private school children for equitable distribution of Title I funds, which should “benefit the educationally deprived child whether attending a public or a non-public school.”  The court determined that it is the responsibility of the state to “provide the lawful means and machinery for effectively assuring educationally disadvantaged non-public school children… participation in a meaningful program… comparable in size, scope and opportunity to that provided eligible public school children.” The state is only required to provide comparable, but not identical, services to eligible private school students).

• Luetkemeyer v. Kaufmann, 364 F. Supp. 376 (W.D. Mo. 1973) (Although the Everson and Allen cases provide that states may constitutionally provide certain services to pupils attending religious schools such as transportation and textbooks, under the child benefit theory, the Constitution does not require the states to do so.  Education is not a federally protected constitutional right.  Hence, there is no substantial federal question.  Missouri’s decision to promote the separation of church and state by refusing to provide transportation to sectarian school students is not irrational; it promotes a legitimate state purpose.  Missouri’s purpose of church-state separation is a compelling state interest).

• Brusca v. Missouri ex rel. State Board of Education, 332 F. Supp 275 (Mo. 1971), aff’d 406 U.S. 1050 (Taxpayers and parents of parochial school children claimed Missouri Blaine Amendment and similar provisions violated the First and Fourteenth Amendments to the U.S. Constitution.  They alleged that their compulsory taxpayer support of public schools “abridged, diminished and destroyed” the plaintiffs’ free exercise of religion.  They argued “that some alternative program, such as tuition grants, would be free of government entanglement [Lemon].”  The court decided the case on the narrow issue “that to the extent the Religious Clauses of the First Amendment do not prohibit such financial aid, they do not require that it be given by the state).

 

SECONDARY MATERIALS

State Attorney General Opinions

·       1989 Op. Atty. Gen. No. 30-89. (1. The Establishment Clause, through the Fourteenth Amendment, prohibits county health centers from providing speech therapy services and certain public health lectures to the students of sectarian schools on the premises of those schools during normal school hours.  2.  Neither the Establishment Clause nor Article I, Sections 6 and 7, nor Article IX, Section 8, of the Missouri Constitution prohibit county health centers from providing diagnostic and screening health services to the students of sectarian schools, whether or not on the grounds of those schools.)

·       1982 Op. Atty. Gen. No. 26. (An incorporated village may construct recreational facilities such as outdoor basketball or tennis courts with village funds and may lease property for this purpose from a church or not-for-profit civic organization.)

·       1979 Op. Atty. Gen. No. 148. (Remedial guidance, counseling, and other auxiliary services may be provided to any child after the regular school day, on weekends, or during the summer on public school premises or neutral sites, conducted by school district employees, regardless of whether the child regularly attends a public or parochial school.  Secular instructional materials and/or equipment used in connection with the program may be provided to participating pupils.  Bus transportation designed solely for the purpose of transporting pupils from their nonpublic schools to the public school site may not be provided.)

·       1979 Op. Atty. Gen. No. 31. ((1) Federal funds paid directly to the Board of Education of the City of St. Louis under the provisions of the federal Emergency School Aid Act (ESAA) constitute public funds which are subject to the spending proscriptions of the Missouri Constitution.  (2) The Missouri Constitution prohibits the use of public school personnel paid with ESAA funds to provide teaching services to children attending sectarian schools on the premises of the sectarian schools during the regular school day.)

·       1977 Op. Atty. Gen. No. 102. (The public school districts in this state may not use funds available to them under Part B of Title IV of the Elementary and Secondary Education Act of 1965 to provide the services described therein to nonpublic school children on nonpublic school premises.  The Department of Elementary and Secondary Education may not provide assurances pursuant to Section 403(a)(3) of Title IV (20 U.S.C. § 1803(a)(3)) that Title IV funds will be used to benefit children attending nonpublic schools as required by Section 406 (20 U.S.C. § 1806).

 

·       1976 Op. Atty. Gen. No. 178. (Contracting school districts are obligated to pay the tuition fee prescribed in Section 178.510. RSMo, for those nonpublic school pupils residing within their boundaries who are over the age of 16 years and who desire to attend area vocational schools on a part-time basis.)

 

·       1971 Op. Atty. Gen. No. 156. (A six-director school district in the State of Missouri may contract with a private or parochial transportation system to provide the transportation services which the board is authorized to furnish pursuant to Section 167.231, RSMo 1969.)

 

·       1971 Op. Atty. Gen. No. 133. (1. Person standing in the parental relation to a child between sixteen and eighteen years of age who has not completed the elementary school courses in the public schools of Missouri, or its equivalent, comes within the provisions relating to compulsory attendance at a part-time school.  2. All children in the State of Missouri between the ages of six and twenty years have a constitutional right to a public school education. All children who are entitled to a public school education as a matter of right but who do not fall within the age group of the Compulsory School Attendance Law may attend a public school on a part time basis subject to a school district's reasonable rules and regulations. 3. Public school authorities operating an area vocational school must enroll a private school student who desires to participate in the vocational instruction offered at the school outside of the regular school day if the student is within the age group of children entitled to a public education as a matter of right.)

 

·       1970 Op. Atty. Gen. No. 82. (A school district is authorized to allow the use of school premises by church or religious organizations for religious purposes during times when the use for school purposes is not required, provided that a fair and adequate consideration is received for such use.)

 

·       1970 Op. Atty. Gen. No. 56. (There is nothing in the Missouri Constitution or statutes or the United States Constitution prohibiting the placing of student teachers in parochial or private schools as part of the student teaching programs at Northeast Missouri State College.)

 

·       1970 Op. Atty. Gen. No. 26, 7-9. (Although Title I funds are “appropriated” by the state, they remained federal funds, and therefore could be used under certain circumstances to permit instruction on the premises of private schools.)

 

·       1969 Op. Atty. Gen. No. 337. (A state college or university does not violate constitutional provisions by giving credit for course taught by representative of religious denomination, so long as university premises or facilities are not used.)

·       1968 Op. Atty. Gen. No. 354. (An agency of the state government may be authorized by the legislature to contract and cooperate with private medical schools for the purpose of training Missourians in the medical profession.)

·       1968 Op. Atty. Gen. No. 313. (State college or university may establish courses, a division or department of religion for the purpose of teaching about religion as distinguished from the teaching of religion.  The courses offered, as well as all courses of the institution, both in plan and practice must maintain a strict religious neutrality as defined by the courts.) (emphasis added).

·       1963 Op. Atty. Gen. No. 157. (It is permissible for regular faculty members to teach academic courses about religion as part of the curriculum of a state supported college.)

·       1953 Op. Atty. Gen. No. 96. (Effects of decision in McVey v. Hawkins...”  “It is the opinion of this office that the case of McVey... held unconstitutional the provisos of Sections 165.140 and 165.143, RSMo 1949, purporting to authorize the expenditure of public funds for transportation of children to private schools, and that the holding of such portions of the above statutes unconstitutional renders such portions null and void from their very enactment.  It is the further opinion of this office that, under the present state of law, boards of education have no legal basis for aiding private school transportation for either elementary or high school pupils...”)

 

Law Review Articles

·       Public Aid to Parochial Education in Missouri, 1976 Wash. U.L.Q. 279

 

·       State Aid to Nonpublic Schools, 15 St. Louis U.L.J. 616 (1971).

 

Legislative Proposals

 

During the 2000 legislative session, Representative David L. Reynolds, a Democrat, sponsored a bill to place on the 2000 election ballot a proposal to repeal Article IX, Section Eight -- the Blaine Amendment.[1]  The last reported action relating to this bill is referral to the Education and Secondary Committee on January 6, 2000.  See HJR39.

 

Other significant proposals were introduced in the 1995 and 1996 legislative sessions.  During the 1995 legislative session, SJR017 proposed a constitutional amendment to provide education vouchers to every student in the state for use at either public or private schools.  HJR1 proposed a constitutional amendment to provide scholarships for the same purpose.  In the 1996 legislative session, SB0786 proposed the “Parental Choice in Education Act” which would have provided a pilot program for school children in certain districts to receive need-based scholarships to be used at either public or private grade schools.

 

Current proposals include HB1991 which would require schools to provide transportation for private and parochial school students, SB755 which would exempt retailers from sales tax for inventory donated to public or private education entities, and SJR30 which would allow school districts to transport private school students with transportation. 

 

REPEAL EFFORTS

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

© 2003 The Becket Fund for Religious Liberty