New York

AMENDMENT LANGUAGE

State Constitutional Provisions

N.Y. Const. art. VIII, § 1: " . . . [N]othing in this constitution contained shall prevent a county, city or town from making such provision for the aid, care and support of the needy as may be authorized by law, nor prevent any such county, city or town from providing for the care, support, maintenance and secular education of inmates of orphan asylums, homes for dependent children or correctional institutions and of children placed in family homes by authorized agencies, whether under public or private control . . . "

N.Y. Const. art. XI, § 3: "Neither the state nor any subdivision thereof shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning." (Ratified in 1894, last amended in 1938)

Federal Enabling Act

Act of Feb. 22, 1889, 25 Stat. 676, ch. 180, § 4 (1889), requiring "the establishment and maintenance of systems of public schools, which shall be open to all the children of said States, and free from sectarian control."

IMPLEMENTING STATUTES AND REGULATIONS

Statutes

NY Educ. § 549: "To insure a healthy and safe school environment for children attending nonpublic schools, the state has the right to make grants for maintenance and repair expenditures which are clearly secular, neutral and non-ideological in nature."

NY Educ. § 559:

"1. The vitality of our pluralistic society is, in part, dependent upon the capacity of individual parents to select a school, other than public, for the education of their children. A healthy competitive and diverse alternative to public education is not only desirable but indeed vital to a state and nation that have continually reaffirmed the value of individual differences.

"2. The Supreme Court of the United States has recognized and reaffirmed this right of selection. This right, however, is diminished or even denied to children of lower-income families, whose parents, of all groups, have the least options in determining where their children are to be educated....

"4. In recognition of the initiative of parents who support both public and nonpublic education, it is a legitimate purpose for the state to partially relieve the financial burden of parents who provide a nonpublic education for their children which satisfies the compulsory education laws of the state. Such assistance is clearly secular, neutral and nonideological in nature and is consistent with the historical and continuing role of the state in providing a quality education for all children and in nurturing a pluralistic society.

"5. An Elementary and Secondary Education Opportunity Program is hereby established, which consists of tuition reimbursement for parents of low income, in order to provide partial assistance in meeting the financial burden of supporting the compulsory education of their children who are full-time students in New York nonpublic elementary and secondary schools."

RELEVANT CASES

State Courts

Grumet v. Cuomo, 659 N.Y.S.2d 173 (1997) (The Court of Appeals held that statute, allowing municipalities meeting certain criteria to form their own school districts, violated Establishment Clause, as it had non neutral effect of allowing one religious community, but no other group now or probably ever, to create its own school district).

St. James Church v. Board of Education of the Cazenovia Central School District, 621 N.Y.S.2d 486 (1994) (The Supreme Court held that: (1) programs to which students were being transported were "educational" within statutory definition; (2) provision of education law allowing leasing of buses to other organizations did not violate state and federal constitutional requirement of separation of church and state; and (3) any refusal to lease buses to organization based solely on religious viewpoint of program offered would constitute discrimination).

Grumet v. Board of Education of the Kiryas Joel Village School District, 618 N.E.2d 94 (N.Y. 1993) (see Grumet v. Cuomo).

Greve v. Board of Ed. of Union Free School Dist. No. 27, 351 N.Y.S.2d 715 (N.Y. App. Div. 2 Dept. 1974) (Public funding of a special teacher for a hearing-impaired student who attends a private school is constitutional as long as the teacher does not instruct the child in religion).

Cook v. Griffin, 364 N.Y.S.2d 632 (N.Y. App. Div. 1975)

Burdman v. Nyquist, 332 F. Supp. 460 (W.D.N.Y. 1971)

College of New Rochelle v. Nyquist, 326 N.Y.S.2d 765 (1971) (Granting of state aid to private college was not proscribed by that part of Blaine Amendment prohibiting state aid to an institution in which any 'denominational tenet or doctrine is taught,' where, inter alia, college did not teach a doctrine of particular religious denomination to exclusion of other denominations, and religious studies courses were of the type taught in any private and state institutions of higher learning).

Unitarian Universalist Church of Central Nassau v. Shorten, 314 N.Y.S.2d 66 (1970) (Day care center in church granted zoning exemption because constituted religious activity even though center entitled to state funding operated by separate corp).

Bd. of Ed. of Central School District No. 1 v. Allen, 228 N.E.2d 791 (N.Y. 1967) (Statute requiring school districts to purchase and loan textbooks upon individual request to pupils enrolled in grades 7 through 12 of a public or private school violated neither the federal nor the state constitution).

Bd. of Ed. of Central School District No. 1 v. Allen, 192 N.Y.S.2d 186 (1959) (Spending public funds to transport students to parochial schools is constitutional based on a state constitutional amendment passed by voters in 1938).

64th St. Residences v. City of New York, 174 N.Y.S.2d 1 (1958) (Sale of condemned land to denominational university not an unconstitutional grant or subsidy of public moneys to a religious corporation, since university was not receiving a gift, grant, or subsidy of public property).

Judd v. Bd. of Ed. of Union Free School District, 15 N.E.2d 576 (N.Y. 1938) (The Court of Appeals held a statute permitting public funding for transportation of children to private schools unconstitutional and void).

Lewis v. Board of Education of City of New York, 285 N.Y.S. 164 (1935) (The court upheld the authority of the board of education to allow religious groups to use public school facilities and finding constitutional the practice of purchasing and providing various versions of the Bible to public school students and allowing nonsectarian readings from the Bible during class).

Ford v. O'Shea, 244 N.Y.S. 38 (1929) (Citizen held not entitled to enjoin board of education from conducting public school in church owned premises, where not showing use of public money for religious denomination).

People ex rel. Lewis v. Graves, 156 N.E. 663 (N.Y. 1927) (The Court of Appeals of New York upheld as constitutional a public school policy permitting children to leave school early once a week for a half an hour of religious instruction.

Stein v. Brown, 211 N.Y.S. 822 (1925) (Excusing children early from public school for religious lessons and printing cards used by denominational religious institution unlawful).

Smith v. Donahue, 195 N.Y.S. 715 (1922) (The court held unconstitutional a statute permitting the expenditure of public funds to purchase textbooks for private schools).

St. Patrick's Church Society of Corning v. Heermans, 124 N.Y.S. 705 (N.Y. Sup. Ct. 1910) (A contract to provide water to all schools, both public and private, in the city is not unconstitutional since the decision of a private individual to dispose of his property does not relate to public property or money).

O'Connor v. Hendrick, 77 N.E. 612 (N.Y. 1906).

Sargent v. Board of Education of City of Rochester, 69 N.E. 722 (N.Y. 1904) (The legal right of the board of education to employ sisters to educate orphans in an asylum operated by a religious organization is constitutional).

Federal Courts

Committee for Public Education and Religious Liberty v. United States Department of Education, 942 F. Supp. 842 (E.D.N.Y. 1996) (Funding of program providing remedial instruction and support services to public and sectarian elementary and secondary school students in NYC lawful).

Felton v. United States Department of Education, 787 F.2d 35 (2d Cir. 1986) (Granting one-year stay of judgment declaring unconstitutional New York City's use of funds to send public school teachers into sectarian schools to provide instruction under Education Consolidation and Improvement Act of 1981).

Committee for Public Ed. and Religious Liberty v. Nyquist, 413 U.S. 756 (1973) (Each of New York's aid provisions [e.g., maintenance and repair grants, tuition reimbursement grants, income tax benefit to parents of nonpublic schoolchildren] had primary effect which advanced religion and offended constitutional provision against laws respecting the establishment of religion).

SECONDARY MATERIALS

State Attorney and Comptroller General Opinions

· 1979 Op. State Compt. 698. (No violation of either this section or Const. Art. 8, § 1, where an historical society leases to a religious organization, for several hours a week for school purposes, an historical edifice which was purchased and is supported by town moneys paid to the historical society pursuant to contract.)

1967 Op. Atty. Gen. Sept. 13. (Contracts, between the Regents and Fordham University and a named individual, entered into to implement an award of an Albert Schweitzer Chair in the Humanities to Fordham University constitute direct aid to a sectarian institution and are, therefore, unconstitutional.)

1965 Op. Atty. Gen. July 15. (State or local property, credit or public funds may not be used in remedial programs in respect to children enrolled in sectarian school.)

1957 Op. Atty. Gen. 145. (Cities can contract with faith-based organizations to provide recreational activities for the elderly so long as the activities are not conducted in churches, religious schools, or facilities where religious instruction is offered, and the organization only receives enough funds to cover operational costs.)

1952 8 Op. State Compt. 249.

1950 Op. Atty. Gen. 210. (Section does not forbid use of noninstructional facilities of denominational schools by publicly supported youth projects as a matter of law.)

1949 5 Op. State Compt. 137. (A town may not permit the use of its property by religious organizations for the purpose of giving religious instruction to school children.)

1943 Op. Atty. Gen. 119. (The same building can be used for Sunday School and child care but a church cannot use funds public funds to provide the child care in the building).

1943 Op. Atty. Gen. 118. (Though a building is owned by a religious corporation, public or non-sectarian private agencies can still use it for non-educational projects).

1934 Op. Atty. Gen., 51 St. Dept. 70. (State aid can be given to a public high school where Bible study is allowed as a special course so long as it is limited to no more than one of the 15 units required for graduation.)

Other State Attorney General Documents

Report on Non-Public Education, State of New York Office of the Attorney General, May 2002.

State Legislative History

from NY EDUC § 3202-C (authorizing nonpublic students to attend TAG at public schools):

"5. As the financial crisis in nonpublic education worsens, an increasing number of pupils who would otherwise attend nonpublic schools are expected to enroll in public schools whose facilities are already over-burdened. Should this become a sudden and massive movement, the quality of education for all pupils would suffer and a heavy additional burden would be imposed upon the taxpayers of this state.

"6. By providing acceptable secular educational services to a substantial segment of the state's school-age population, nonpublic schools assist the state in meeting its educational responsibility to all children and confer substantial benefits upon the taxpayers of this state."

Books and Articles

Stanley H. Friedelbaum, Free Exercise in the States: Belief, Conduct, and Judicial Benchmarks. 63 ALB. L. REV. 1059 (2000).

School Choice Vouchers and the Establishment Clause. 58 ALB. L. REV. 543 (1994).

Purchase and Loan of Textbooks to Students of Sectarian Schools and the Blaine Amendment. 31 ALB. L. REV. 152 (1967).

First Amendment and Federal Aid to Church Related Schools. 17 SYRACUSE L. REV. 609 (1966).

81 A.L.R. 2d 1309 (1962).

41 A.L.R. 3d 344.

REPEAL EFFORTS

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