Attorney for Appellants Attorneys for Appellees
Kenneth J. Falk Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Thomas M. Fisher
Deputy Attorney General
Ellen H. Meilaender
Deputy Attorney General
Appeal from the Marion Circuit Court, No. 49C01-0001-CP-120
The Honorable William Lawrence, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0112-CV-863
October 29, 2003
This is an appeal from a summary judgment denying relief in an action brought by four Indiana taxpayers against Governor Frank O'Bannon and Superintendent of Public Instruction Suellen Reed, head of the Indiana Department of Education (collectively termed "the State"). The taxpayers' lawsuit challenges the "dual-enrollment" process whereby the State provides public funds "which are used to pay teachers who teach classes in parochial schools and which are used to provide such things as internet services to parochial schools." Br. of Appellants at 10. The taxpayers contend that this practice violates Article 1, Section 6 of the Indiana Constitution, which states: "No money shall be drawn from the treasury, for the benefit of any religious or theological institution." (Hereafter "Section 6.") Because this dual-enrollment process does not provide any substantial benefit to the participating parochial schools or directly fund activities of a religious nature, we hold that it does not violate Section 6, and we affirm the judgment of the trial court.
In granting summary judgment for the State, the trial court made extensive findings of fact and conclusions of law and concluded both that the plaintiffs/taxpayers did not have standing to bring their claim and that, even if they had standing, the challenged practice does not violate Section 6. Affirming solely on grounds of lack of standing, the Court of Appeals did not address the constitutional claim. Embry v. O'Bannon, 770 N.E.2d 943 (Ind. Ct. App. 2002). The plaintiffs petitioned for transfer.
Under Indiana Code § 21-3-4.5-1, a portion of the public funding allocated to
each Indiana public school corporation is directly proportional to that corporation's "average daily
membership" or "ADM." Students enrolled in private schools may be counted in
a public school corporation's ADM if the student also: 1) enrolls in the
public school, 2) has legal settlement in the school corporation, and 3) receives
instructional services from the school corporation. Ind. Code § 21-3-1.6-1.2. The
Indiana Department of Education issued memoranda to all public school superintendents in 1993,
1997, and 1999 advising that it interpreted Indiana Code § 21-3-1.6-1.1 to allow
nonpublic school students enrolled in at least one specific class in the public
school corporation to be counted in the corporation's ADM.
See footnote Thereafter, many public
school corporations entered into dual-enrollment agreements with private schools in which the public
schools agreed to provide various secular instructional services to private school students, on
the premises of the private school, in return for securing those students' enrollment
in their respective public school corporations. Among the courses offered to the
dual-enrolled students are fitness and health, art, foreign language, study skills, verbal skills,
music, and computer technology (including internet services).
The two plaintiffs from Lawrence Township in Marion County allege that their township
school corporation previously had a dual-enrollment agreement with two parochial schools. While
these agreements no longer exist, the plaintiffs object to the continued use of
state funds to benefit parochial schools in townships currently operating under similar dual-enrollment
agreements. The plaintiff from the city of Mishawaka pays sales tax and
local taxes and objects to an ongoing dual-enrollment arrangement between the School City
of Mishawaka and a number of Roman Catholic parochial schools, specifically, "the use
of state funds to pay public school teachers to teach parochial school students."
Br. of Appellants at 9. The fourth plaintiff, a taxpayer in
the city of Madison, objected to an arrangement in effect at the time
of the filing of this action between the Madison Community Schools and the
Prince of Peace Catholic Schools to provide computer equipment, internet services, and teachers.
Although the Madison arrangement has since been discontinued, this plaintiff continues to
object to the use of state funds to benefit parochial schools under dual-enrollment
agreements still in effect.
Id. Collectively, the plaintiffs claim that the
expanded curriculum and internet access made available for use by parochial school students
and paid for with public funds under these dual-enrollment agreements violate Article 1,
Section 6, of the Indiana Constitution. They assert no federal constitutional claims.
When reviewing a grant or denial of summary judgment, our standard of review is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Tankersley v. Parkview Hosp., Inc., 791 N.E.2d 201, 203 (Ind. 2003). Where the dispute is one of law rather than fact, our standard of review is de novo. Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 39 (Ind. 2002); see also LCEOC, Inc. v. Greer, 735 N.E.2d 206, 208 (Ind. 2000). The issues presented in this appeal are issues of law, not fact, and will be reviewed accordingly.
As we recently held in Cittadine, however, "Pence did not alter the public
standing doctrine," 790 N.E.2d at 983, which has been recognized in Indiana case
law for more than one hundred and fifty years and remains viable today.
Id. at 980, 983. Because the plaintiffs' complaint is not grounded
on a claim of private rights, but rather on their shared public interest
as taxpayers in the allegedly unconstitutional expenditure of public funds, they fall within
the public standing exception to the general standing requirement, and are entitled to
bring this action. This result is also consistent with State ex rel.
Johnson v. Boyd, 217 Ind. 348, 28 N.E.2d 256 (1940), in which this
Court addressed the claims of taxpayers challenging certain acts of the School City
of Vincennes as violative of Article I, § 6.
Our standard of review of state constitutional claims is well established. It
a search for the common understanding of both those who framed it and those who ratified it. Furthermore, the intent of the framers of the Constitution is paramount in determining the meaning of a provision. In order to give life to their intended meaning, we examine the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions. In construing the constitution, we look to the history of the times, and examine the state of things existing when the constitution or any part thereof was framed and adopted, to ascertain the old law, the mischief, and the remedy. The language of each provision of the Constitution must be treated with particular deference, as though every word had been hammered into place.
City Chapel Evangelical Free Inc. v. City of South Bend, 744 N.E.2d 443, 447 (Ind. 2001).
The text of Section 6 is brief: "No money shall be drawn from
the treasury, for the benefit of any religious or theological institution." Ind.
Const. art. I, § 6. This language did not appear in Indiana's
See footnote but was a product of the 1850-51 constitutional convention and was
included in our constitution of 1851 without any substantive discussion at the convention.
The various religious clauses now contained in Sections 2 through 7 of Article
1 were introduced together at the convention as Resolution Number 11, sections 2
and 3, in a report of the "committee on the rights and privileges
of the inhabitants of this State" by the committee's chair, delegate Robert Dale
Owen, on October 31, 1850.
Journal of the Convention of the People
of the State of Indiana at 165 (reprint 1936) (1851). The sections
reported were ordered to a second reading. Id. at 166. Resolution
Number 11 underwent its second reading on December 4, 1850, during which minor
changes were made in wording and arrangement, none of which altered the language
of what is now Section 6. Id. at 349-50. The resolution
was passed without discussion on third reading on December 5, 1850, by a
vote of 122-0, and was referred to the committee on revision, arrangement and
phraseology, id. at 352, where it emerged on February 1, 1851 in its
present form and location as Section 6 of Article 1. Id. at
Although there is no recorded discussion surrounding the consideration and adoption of Section 6, the framers' intentions are evidenced in the address by delegate Owen prepared at the conclusion of the convention for the purpose of informing the people of Indiana regarding the changes proposed in the revised constitution and aiding in securing its adoption:
In addition to the guarantees which find a place in the old Constitution, to secure the rights of conscience and prevent the imposition, on the citizen, of any tax to support any ministry or mode of worship against his consent, it is provided, that no person shall be rendered incompetent as a witness, in consequence of his opinions in matters of religion; and that no money shall be drawn from the treasury for the benefit of any religious or theological institution. Both these provisions are found in the Constitutions of Michigan, Wisconsin, and others of recent date.
Id. at 964. The delegates formally approved the address on February 8,
1851. Id. at 972.
The framers' purpose to "prevent the imposition, on the citizen, of any tax
to support any ministry or mode of worship against his consent" does not
expressly include or make any reference to educational institutions with religious affiliations.
There is evidence that the noun "ministry," aside from its secular meanings, was
understood at the time to mean "[e]cclesiastical function or profession; agency or service
of a minister of the gospel or clergymen in the modern church, or
priests, apostles, and evangelists in the ancient." Noah Webster, An American Dictionary
of the English Language 716 (1856). This may suggest that the framers
intended Section 6 to prohibit public funds only for ecclesiastical functions.
This interpretation may also be bolstered by comparing the language of Section 6 to its counterparts in the Michigan and Wisconsin constitutions identified by delegate Owen as its sources. Michigan's first state constitution provided that "[n]o money shall be drawn from the treasury for the benefit of religious societies, or theological or religious seminaries." Mich. Const. of 1835, art. I, § 5 (emphasis added). See footnote Wisconsin's 1848 Constitution similarly states, in part, "nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries." Wis. Const. art. I, § 18 (emphasis added). See footnote Thus the choice by the framers of Indiana's Section 6 to exclude the phrase "or religious or theological seminaries" may indicate that they did not intend it to apply to religious schools.
During the period of Indiana history after statehood in 1816, education developed slowly. Our 1816 constitution declared, "[i]t shall be the duty of the General Assembly, as soon as circumstances will permit, to provide, by law, for a general system of education," Ind. Const. of 1816, art. IX, § 2 (emphasis added), but no tax support was mandated. Donald F. Carmony, Indiana, 1816-1850: The Pioneer Era 363 (Indiana Historical Bureau & Indiana Historical Society 1998). To the extent that elementary school education existed before the early 1830s, it was substantially provided by the family or by religious or private schools. Id. at 368. Similarly, "[f]rom statehood until 1850 secondary education was mainly at seminaries and academies or at similar institutions with various names" and "conducted principally under private or religious auspices." Id. at 394. Because the distinction between public and private schools was so unclear, the meager public funds available for education were often distributed to public and independent schools alike, including those run by churches. Carl F. Kaestle, Pillars of the Republic: Common Schools and American Society, 1780-1860, at 166-67 (Hill and Wang 1983). By 1845-50, it is estimated that "less than half of the youth between ages five and twenty-one attended such schools for as much as three months in a year" and "[n]umerous of these schools were private or denominational schools, recognized and in part financed from taxes and proceeds from public school funds." Carmony, supra, at 393.
During this same period, however, significant efforts were underway to change Indiana's education
practices. Special educational conventions were held in 1837, 1839, 1847, and 1848.
Id. at 378, 390. In an August 1848 statewide referendum of
140,410 voters, 56% favored, and 44% opposed, a system of free common schools
throughout the state supported by taxation. See id. at 391. Caleb
Mills, an ordained Presbyterian minister and one of the key founders of, and
a professor at, Wabash College, was the preeminent advocate of education system improvement
in Indiana in the mid 1800s. Charles W. Moores, Caleb Mills and
the Indiana School System 373 (Wood-Weaver Printing Co. 1905). He presented a
series of six addresses to the General Assembly highlighting the existing illiteracy in
the state; urging a statewide system of free public schools and new forms
of raising revenue for public education; securing and adequately compensating better teachers; providing
standard textbooks; increasing the number of schools and improving school facilities; and creating
a state superintendent to direct the school system.
Id. at 369-70.
In four letters to the members of the constitutional convention, Mills also presented
many of his views regarding education. See id. at 550-77. Public
education did receive considerable attention at the 1850-51 constitutional convention,
See footnote which was reflected
in its adoption of Article 8 establishing and providing funding for a common
school system and creating the position of State Superintendent of Public Instruction.
However, we find nothing in the convention debates associated with Article 8 that
illuminates our analysis of the delegates' intentions as to Section 6 of Article
While Caleb Mills was focusing Indiana's legislative and constitutional leaders upon the need
for a system of free public schools and methods of financing the system,
the "common school movement" launched in the 1830s by vocal activists in the
eastern states appears to have been advancing a wider agenda. As a
large number non-Protestants immigrated in the 1820s and 1830s, fears that the growth
of the Catholic population would threaten the nation's future unity led many to
advocate a school system that would "teach common values," "combat the bad examples
of parents," "spread republican values," and "secure social stability." Diane Ravitch,
Traditions of Education, in A Primer on America's Schools 8-9 (Terry M. Moe
ed., Hoover Institution Press 2001). One of the arguments frequently advanced in
favor of common schools was that "the increase of foreign immigration . .
. is a menace to our free institutions, and that these new elements
can be best assimilated in a system of publicly supported and publicly directed
common schools." Ellwood Patterson Cubberly, Public Education in the United States: A
Study and Interpretation of American Educational History 165-66 (Houghton Mifflin Co. 1934) (1919).
The leaders of the movement were predominantly native-born Protestants who had "no
qualms about supporting a common-school policy that was openly Christian, avowedly nonsectarian, and
implicitly Protestant." Kaestle, supra, at 98. Historian Lloyd P. Jorgenson presents
evidence in his study The State and the Non-Public School, 1825-1925 that many
of the common school movement leaders were "among the most vitriolic anti-Romanists of
their time." Id. at 33 (University of Missouri Press 1987). He
writes: "There was no mistaking the motivation behind these campaigns; the leaders openly
and boastfully made anti-Catholicism the dominant theme of their attacks." Id. at
With respect to Indiana, however, although the framers and ratifiers presumably were apprised
of these developments in other states, it appears that such biases may not
have significantly motivated the Indiana education reform movement during the period before the
1850-51 constitutional convention. By 1850, less than six percent of Indiana's inhabitants
See Tyler Gregory Anbinder, Nativism and Slavery: The Northern Know
Nothings and the Politics of the 1850s, at 71 n.57 (Oxford University Press
1992). It was after 1850 that Indiana experienced a rapid growth of
the Roman Catholic and immigrant populations. L.C. Rudolph, Hoosier Faiths: A History
of Indiana's Churches and Religious Groups 29 (Indiana University Press 1995). Although
the forces most openly advocating anti-immigrant and anti-Catholic positions, the "Nativism" movement and
the Know-Nothing Party, flourished in the East in the late 1840s, these forces
did not become politically significant in Indiana until the years following the adoption
of the 1851 constitution. Emma Lou Thornbrough, Indiana in the Civil War
Era: 1850-1880, at 60-61 (1966). Informed by history and by the recorded
dialogue among the delegates at the constitutional convention, it appears that anti-Catholic and
anti-immigrant biases may not have significantly influenced Indiana's 1851 constitution.
Because the present case may be determined on another basis, we need not
here decide the issue of whether the framers and ratifiers intended Section 6
to apply to religious schools. The determinative issue is whether the dual
enrollment process challenged by the plaintiffs confers substantial benefits upon the participating parochial
schools or directly funds activities of a religious nature. Neither the text
of Section 6 nor the circumstances surrounding its adoption, as outlined above, provide
guidance as to whether the phrase "for the benefit of" in Section 6
was intended to erect an absolute prohibition against any expenditure of public money
that might confer merely pecuniary incidental benefit to a religious institution. Upon
the issue of incidental benefits, we find guidance in prior Indiana case law.
As observed by the plaintiffs, there are only two appellate decisions that
involve Section 6.
In State ex rel. Johnson v. Boyd, 217 Ind. 348, 28 N.E.2d 256
(1940), this Court permitted the public school system in Vincennes to serve approximately
800 school children who had previously been attending Roman Catholic parochial schools prior
to their closure by church authorities, by conducting public schools in the same
parochial school buildings, and by employing as staff for the schools the "Sisters
and Brothers [of] various Catholic orders." Id. at 358, 28 N.E.2d at
261. The Court focused on the total control of the schools by
the public school system and found that they were no longer parochial schools.
It observed, "[w]e see no valid reason why the said school trustees
should not have leased the buildings and equipment furnished by the church authorities"
and noted with approval cases from other jurisdictions that permitted religious buildings or
facilities to be rented or used for the purpose of conducting public schools.
Id. at 368, 28 N.E.2d at 265. Noting that the teachers,
while members of religious orders, were nevertheless properly licensed, taught the course of
education prescribed by the State Board of Education, and provided no sectarian instruction
in the schools during school hours, the Court held that their salaries did
not violate Section 6 as benefits for religious or theological institutions. Id.
at 372-73, 28 N.E.2d at 266-67.
In Center Township of Marion County v. Coe, 572 N.E.2d 1350 (Ind. Ct.
App. 1991), the Trustee of Center Township provided emergency shelter assistance to the
homeless under Indiana Code § 12-2-1-6 by entering into agreements with private religious
mission shelters whereby the township paid the missions to feed and shelter a
number of the township's homeless. The missions required attendance at religious services
as a condition of receiving services, and some homeless persons complained that they
were forced to attend the services against their will because no other shelters
were available. In the resulting class action, the Court held that Section
6 was not offended by the mere fact that benefits accrued to the
religious missions under the agreements, but ruled for the plaintiff class because the
agreements themselves unconstitutionally conditioned access to publicly funded shelter on attendance at religious
[W]e must conclude that the Trustee's use of the missions under these circumstances does violate the Appellees' constitutional rights. The trial court's order does not, however, prohibit the use of religious missions as vendors of shelter services if the missions do not condition the receipt of shelter on attendance at religious services. As long as the missions provide the statutorily mandated benefit in a manner which does not infringe the Appellees' constitutional rights, the use of missions to provide shelter services is within the broad discretion of the Trustee.
Id. at 1360.
A similar approach has been taken in those states after which Article I
§ 6 was modeled Wisconsin and Michigan. In State ex rel.
Warren v. Nusbaum, 198 N.W.2d 650 (Wis. 1972), the plaintiffs alleged that a
statute authorizing the state to contract with a church-related university for the purchase
of dental education services violated the Wisconsin Constitution's prohibition against using public funds
"for the benefit of religious societies, or religious or theological seminaries." Wis.
Const. art. I, § 18. The Wisconsin Supreme Court stated that:
"For the benefit of" is not to be read as requiring that some shadow of incidental benefit to a church-related institution brings a state grant or contract to purchase within the prohibition of the section. This court has held that ". . . we cannot read sec. 18 (of Art. 1, Wisconsin Constitution) as being so prohibitive as not to encompass the primary-effect test. . . ." The applicability of the primary-effect test is to make "the crucial question . . . not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion." It is the primary effect of monies going from the state treasury to a religious society or church-related institution that determines if such payment is "for the benefit of" such society. . . . Payments under a proper contract for providing dental education by a church-related university need not be payments "for the benefit of" a religious society or such church-related institution but can be payments for the advancement of the dental health of the citizens of this state. Art. 1, sec. 18 of the state constitution would not be violated by a proper statute, a proper contract, or payments made pursuant to such contract and statute.
Id. at 659 (emphasis added and footnotes omitted). In a later Wisconsin
case of the same name, State ex rel. Warren v. Nusbaum, 219 N.W.2d
577 (Wis. 1974), the Wisconsin Supreme Court upheld the constitutionality of a state
statute authorizing school boards to contract with private educational services to provide educational
benefits to children with exceptional needs if such needs could not be met
by the state. The Court noted: "[t]he primary effect of [the statute]
is not the advancement of a religious organization but the providing of special
educational services to the handicapped children of Wisconsin, a secular purpose. Some
incidental benefit may accrue to a religious organization . . . ."
Id. at 585.
In Advisory Opinion re Constitutionality of P.A. 1970, No. 100, 384 Mich. 82,
180 N.W.2d 265 (1970) the Michigan legislature requested an opinion from the Michigan
Supreme Court on the constitutionality of a state statute authorizing public school teachers,
paid with public funds, to teach secular subjects in private schools "to foster,
improve and advance the quality of secular education, wherever offered, as an integral
element of the public welfare." Id. at 270. In finding the
statute constitutional, the court said:
"[I]ncidental benefits" to religious sects or societies do not invalidate an otherwise constitutional statutory program plainly intended and formulated to serve a public purpose. The same rule must apply to our interpretation of the third sentence of art. 1, § 4. To adopt a strict "no benefits, primary or incidental" rule would render religious places of worship and schools completely ineligible for all State services. There is no evidence, furnished or imaginable, that the people intended such a rule when they adopted this provision of the Constitution. Furthermore, a strict "no benefits" rule might result in direct conflict with the final sentence of art. 1, § 4, which guarantees that no person shall have his rights, privileges and capacities diminished or enlarged on account of religious beliefs.
Id. at 274.
Similarly, in Dept. of Natural Resources v. Bd. of Trustees of Westminster Church
of Detroit, 318 N.W.2d 830 (Mich. App. 1982), the Michigan Court of Appeals
upheld the validity of a 50-year lease entered into in 1925 by the
Department of Conservation (lessor) and the Board of Trustees of Westminster Church of
Detroit (lessee). The plaintiffs claimed that the lease benefited the church in
violation of Article 2 § 3 of the 1908 Michigan Constitution, which read,
"No money shall be appropriated or drawn from the treasury for the benefit
of any religious sect or society, theological or religious seminary; nor shall property
belonging to the state be appropriated for any such purpose." The court
stated that, "[w]hile the constitution forbids the state from appropriating property for a
religious purpose, it does not prohibit the state from contracting to lease property
to a religious organization for valid consideration." Id. at 832.
The interpretations by Michigan and Wisconsin of their state constitutional counterparts to our
Section 6, permitting incidental state benefits to religious institutions, are consistent with this
Court's decisions in Boyd and Coe described above.
While acknowledging that dual-enrollment programs do not provide any payment of public funds
directly to religious institutions, the plaintiffs urge that the dual-enrollment agreements provide specific
benefits to parochial schools because they make it unnecessary for the schools to
hire and pay as many teachers, and because the schools may use the
resources thus saved to expand curriculum and attract students. It is not
disputed, however, that the dual-enrollment programs provide obvious significant educational benefits to the
Indiana children for whom participation in a dual-enrollment program affords educational resources and
training in subjects they would not otherwise receive. The programs likewise benefit
the State by furthering its objective to encourage education for all Indiana students.
In addition, the public school systems providing instructional services under a dual-enrollment
plan benefit from increased public funding. Compared with the substantial educational benefits
to children, the increased attainment of the State's objectives, and the additional funds
made available to participating public school systems, we find any alleged "savings" to
parochial schools and their resulting opportunities for curriculum expansion would be, at best,
relatively minor and incidental benefits of the dual-enrollment programs.
In summary, while the text of Article 1, Section 6, in the context
of history may be helpful in discerning whether its framers and ratifiers specifically
intended it to apply to the funding of religious schools, the text and
its historical context do not inform us whether the framers intended to prohibit
all public funds from providing merely incidental benefits to religious and theological institutions.
Indiana case law, however, has interpreted Section 6 to permit the State
to contract with religious institutions for goods or services, notwithstanding possible incidental benefit
to the institutions, and to prohibit the use of public funds only when
directly used for such institutions' activities of a religious nature. Because the
dual-enrollment programs permitted in Indiana do not confer substantial benefits upon any religious
or theological institution, nor directly fund activities of a religious nature, such dual-enrollment
programs do not violate Section 6.
Rucker, J., concurs. Shepard, C.J., concurs in result. Sullivan, J., concurs
in part 1 and concurs in result in part 2, with separate opinion
which Shepard C.J. joins. Boehm, J., concurs in result, with separate opinion,
in which Sullivan, J. concurs.
Cittadine was not a constitutional case. That is, there was no unconstitutional
expenditure of public funds alleged in that case. Cittadine did discuss our
opinion in Pence v. State, 652 N.E.2d 486 (Ind. 1995), the principal authority
relied on by the Court of Appeals in this case. In that
discussion, we unanimously held that the public standing doctrine permits claims that government
action is unconstitutional but, because [s]tanding is a key component in maintaining our
state constitutional scheme of separation of powers, Pence, 652 N.E.2d at 488, the
availability of taxpayer or citizen standing is limited to extreme circumstances, Cittadine, 790
N.E.2d at 983 (quoting Pence, 652 N.E.2d at 488) (emphasis in Cittadine).
Today's opinion deals with one such extreme circumstance a challenge brought under
Article I, § 6, of the Indiana Constitution which imposes an explicit limitation
on the expenditure of state funds for the benefit of religious or theological
Flast v. Cohen, 392 U.S. 83 (1968), provides a useful analogy. In
Flast, the Supreme Court held that federal taxpayers had standing to challenge the
expenditure of federal funds for teaching some subjects in and purchasing instructional materials
for religious schools as a violation of the Establishment Clause of the First
Amendment. In doing so, the Court created an exception to the general
rule stated in Frothingham v. Mellon, 262 U.S. 447 (1923), that a litigant
does not have standing when the sole basis for standing is that litigants
status as a federal taxpayer. The Court explained that standing is about
whether the party seeking relief has alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions. Flast, 392 U.S. at 99 (quoting Baker v. Carr,
369 U.S. 186, 204 (1962)). Because taxpayers may have the requisite interest
in certain circumstances, the Court found that there was no absolute bar in
Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and
spending programs. Id. at 101.
The crux of the standing question, the Court said, rests on the nexus
between the status asserted by the litigant and the claim he presents.
Id. at 102. For federal taxpayers, the necessary nexus requires both that
the violation and the precise nature of the constitutional infringement alleged relate to
ones status as a taxpayer. Id. Essentially, the taxpayer must show
that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of
the congressional taxing and spending power and not simply that the enactment is
generally beyond the powers delegated to Congress by Art. 1, § 8.
Id. at 102-03. The taxpayers in Flast showed just that, as they
challenged Congresss expenditure of funds as a violation of the Establishment Clause, which
places a specific limit on Congresss taxing and spending power.
Although Flast does not control this case, its reasoning applies here. As in Flast, the taxpayer-plaintiffs assert a violation of an explicit limit on the General Assemblys ability to draw funds from the treasury. They challenge the power of the General Assembly to spend public funds on the dual-enrollment process because the expenditures allegedly violate Article I, § 6, of the Indiana Constitution: No money shall be drawn from the treasury, for the benefit of any religious or theological institution. This is not a case in which a party challenges government action as exceeding its power where no clear limit is placed on that power. These taxpayers have a concrete interest in having taxpayer funds spent in a manner consistent with the explicit limit imposed on the General Assemblys spending power by Art. I, § 6.
We unanimously made clear in Cittadine that we exercise . . . judicial
discretion with cautious restraint under the circumstances in deciding constitutional claims so as
not to overstep the constitutional limitations on the judiciarys authority. 790 N.E.2d
at 983. Because there is an explicit constitutional provision that restrains the
Legislature in this case, the Court does not overstep these limitations in deciding
Shepard, C.J., joins.
I part company with the majority insofar as it concludes or implies that
Article I, Section 6 of the Indiana Constitution has nothing to say about
funding for parochial schools. That section provides in rather clear language that
No money shall be drawn from the public treasury for the benefit of
any religious or theological institution. Even if we accept the meager historical evidence
that animus towards Catholics was not part of the thinking of the delegates
to the 1851 Indiana constitutional convention, it seems quite a stretch to conclude
that a parochial school is not a religious institution within the meaning of
that constitutional provision. No one claims that the church-affiliated schools involved in
this litigation provide a purely sectarian curriculum. Rather, although they raise their
pupils in different faiths, each of these schools teaches its own single religious
or theological doctrine as creed. That in my view plainly renders each
of them a religious institution.
There is nothing wrong with this, of course. Indeed, other provisions of the Indiana Constitution affirm the rights of religious groups that I think surely include the right to operate their own schools. Similarly, in Article VIII, the constitution provides for public support for public education. Thus, as the trial court pointed out, public support for education of parochial pupils in subjects not offered by parochial schools seems perfectly appropriate to me.
It is an entirely different question, however, whether all citizens of the state
can be compelled to pay for religious education with tax dollars. The
Indiana Constitution answers that in the negative. Article 1, Section 6 specifically
prohibits public expenditures for religious institutions. Schools of every denomination and faith
are surely among these institutions and the only issue is whether a particular
expenditure is for the benefit of the school. The majority reaches its
conclusion that parochial schools may not be religious institutions by pointing to three
items of historical interest: 1) one respected member of the 1851 convention, Robert
Owen, described the Indiana provision as found in the then-recently adopted constitutions of
Michigan and Wisconsin; 2) Michigan and Wisconsin prohibit expenditures for religious seminaries; 3)
as understood in the mid 19th Century, a seminary was a school of
any type, whether or not religiously affiliated. From these propositions, the majority
concludes that Indianas founders, by prohibiting funding of religious institutions, intended to remove
religious schools from the list of prohibited beneficiaries of public largesse. I
reach the opposite conclusion. One obvious inference from these facts is that
we should take Robert Owen at his word. If the Indiana provision is
found in other earlier constitutions which barred funding of religious schools (described as
seminaries by our sister states), it follows that parochial schools, Catholic or otherwise,
were precisely the target of Article I, Section 6. And to the
extent there is significance in the selection of institutions rather than seminaries, I
would think that difference in language supports the conclusion that the 1851 Constitution
intended to expand, not contract, the type of religious entities for which public
expenditure is prohibited. Surely a school or seminary is one form of
institution as the term was and is commonly understood.
To the extent the majority finds Michigan and Wisconsin authority significant, I submit
that these states both assume that a parochial school is a religious institution
and resolve the issue before them solely on the question of whether an
expenditure is for the benefit of the institution. On that issue, both
states focus on whether legislation has the primary effect of advancing religion, and
whether the legislature designed the legislation to benefit a parochial school. Leading
cases from both states assume they are addressing a religious institution when dealing
with parochial schools and proceed to the for the benefit of analysis.
For example, in Advisory Opinion re Constitutionality of P.A. 1970, No. 100, 180
N.W.2d 265 (Mich. 1970), relied on by the majority, the Michigan Supreme Court
focused on the legislative purpose of the act in question and the primary
effect of the legislation, noting that incidental benefits accrued do not, by themselves,
invalidate a legislative enactment. Id. at 270, 274. In Jackson v.
Benson, 578 N.W.2d 602 (Wis. 1998), the Wisconsin Supreme Court specifically identified the
case as turning on whether or not the legislations primary purpose was for
the benefit of a religious institution, not whether the parochial school was a
religious seminary as the term appears in the Wisconsin Constitution, Article 1, Section
18. Id. at 621. The Wisconsin Supreme Court was quite specific:
[u]nlike the court of appeals, which focused on whether sectarian private schools were
religious seminaries under art. 1, § 18, we focus our inquiry on whether
the aid provided by the amended MPCP is for the benefit of such
religious institutions. Id. In resolving this second issue, the court took an
approach similar to the majoritys approach to the for the benefit of problem:
[t]he crucial question, under art. 1, § 18, as under the Establishment Clause,
is not whether some benefit accrues to a religious institution as a consequence
of the legislative program, but whether its principal or primary effect advances religion.
Id. (citations omitted).
In sum, I agree that the legislation involved in this case is constitutional
because it does not expend funds for the benefit of a religious institution.
But the majority would implicitly leave the door open to public funding
of sectarian schools. The Constitution stands squarely against that proposition, and for
that reason I respectfully dissent from the portion of the majority opinion addressing
the religious institutions issue.
SULLIVAN, J., concurs.