ELONORA F. BLOOM & others [Note 1] vs. SCHOOL COMMITTEE OF SPRINGFIELD & another.

KAPLAN, J. 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, Section 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, Section 48, which they claimed to be unconstitutional. The Attorney General was allowed to intervene in the action, [Note 2] and the defendant and intervener moved to dismiss the complaint for

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failure to state a claim. [Note 3] 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) [Note 4] ran thus. By St. 1973, c. 1196 (with amendment by St. 1975, c. 652), the following was added to G. L. c. 71, Section 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, [Note 5] and which does not discriminate in its entrance requirements on the basis of race or color, [Note 6] 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

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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; [Note 7] 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 a particular program could be held unconstitutional on a showing that the books might be put to sectarian uses; [Note 8] and the plaintiffs offer to make such a showing if the action is permitted to go to trial.

We agree with the plaintiffs' first contention and need not pass on the second.

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3. The anti-aid amendment. Under the rather uncertain language of art. 18 of the Amendments as adopted in 1855, [Note 9] public aid had been granted in several instances to private schools, and a major subject of the constitutional convention of 1917 was proposals for a more specific amendment that would prohibit the practice altogether. See 1 Debates in the Massachusetts Constitutional Convention, 1917-1918, at 1-230 (particularly at 63, 174-176, 194) (1919); R. L. Bridgman, The Massachusetts Constitutional Convention of 1917, 22-40 (1923); Opinion of the Justices, 214 Mass. 599 (1913). Proponents of such an amendment urged that liberty of conscience was infringed whenever a citizen was taxed to support the religious institutions of others; that the churches would benefit in independence and dignity by not relying on governmental support; and, more generally or colloquially, that to promote civic harmony the irritating question of religion should be removed from politics as far as possible, and with it the unseemly and potentially dangerous scramble of religious institutions for public funds in ever-increasing amounts. 1 Debates, supra at 68, 74-79, 161-164.

The amendment that emerged from the convention and was voted by the people, going into effect in October, 1918, was sweeping in its terms: it prohibited any use of public money or property for the aid of any private school, whether or not parochial, and whether elementary, secondary, or on college or university level. The text of the five sections of the amendment as adopted in 1917

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is set out in the margin. [Note 10] In 1974 the core prohibitory language of Section 2 was recast without (as we think) any change of meaning here material, but an exception was engrafted: the Commonwealth may now make grants-in-aid to private institutions of higher education or their

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students. [Note 11] We reproduce in the margin the whole of the present Section 2, [Note 12] inserted by art. 103 of the Amendments to the Constitution, and set out here the part, important for our present purpose, which carries forward the basic prohibition of 1917: "No grant, appropriation or use of public money or property or loan of credit shall be made or authorized by the Commonwealth or any political subdivision thereof for the purpose of founding, maintaining or aiding any infirmary, hospital, institution, primary or secondary school, or charitable or religious undertaking which is not publicly owned and under the exclusive control, order and supervision of public officers or public agents authorized by the Commonwealth or federal authority or both ...."

We think it must be accepted that it would be a transgression of the Constitution for a city or town to loan textbooks to private primary or secondary schools. A program

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of that order would be a use of public property for the purpose of aiding such schools in carrying out their essential function.

It is suggested, however, that the program envisaged by the statute is saved because possession of the books is (at least nominally) in the pupils rather than in the schools they attend. We believe the difference is without significance under the terms of our anti-aid amendment. For the stricture of our amendment is not limited to direct transfer of money or property from the government to the treasuries or possession of the schools. Rather it speaks of the "use" of public money or property for "maintaining or aiding" the schools. The textbook loan scheme of the challenged statute makes a "use" of public property, and the effect is to "aid" the schools, and in their very teaching function. To fall within the natural meaning of the constitutional prohibition the scheme need not necessarily replicate the features of a direct transfer; but as a matter of fact it does so substantially. Suppose the books had been turned over to the schools directly. [Note 13] In that case the schools would distribute the books to their pupils. Portions of the books would be assigned for reading or for exercises within them, all as part of the class regimen. Teachers would develop the meaning of the books by classroom methods or exercises. The material would form the basis of examinations. But this is just the homely pattern of conduct that would be followed with the books provided under the statute. [Note 14]

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The immaterality or unreality of the distinction proffered in defense of the statute is borne out by opinions of the Justices in the context of the anti-aid amendment itself. Legislation proposed in 1970 would have authorized the Commonwealth to reimburse private schools for part of the cost of their secular instruction--in effect, a partial subsidy. Because "[t]he language [of the amendment] unquestionably was designed to preclude entirely aid to all nonpublic institutions from appropriated public funds with minor exceptions not here relevant," the Justices found the plan impermissible and so informed the Senate. Opinion of the Justices, 357 Mass. 836, 844 (1970). [Note 15] Shortly afterwards the House of Representatives sought advice about a plan to issue to the parents of private school pupils vouchers to be drawn on the Treasurer of the Commonwealth and to be used toward tuition payments. The Justices said: "The present bill seems to us to involve an indirect form of aid to nonpublic schools which, if enacted, would have in substance the same practical effect as the measure which we recently considered. We are of opinion that the present bill would violate Section 2 of art. 46." Opinion of the Justices, 357 Mass. 846, 850 (1970). We may conclude here by noting that the Attorney General expresses his own dissatisfaction with the attempt to square the plain meaning and effect of the statute at bar with the constitutional provision. [Note 16] But in

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seeking to escape from this predicament, he recommends a reading of the statute which is merely fanciful, and which, even if accepted, would not appear to avoid the constitutional bar. [Note 17]

4. Discussion of Supreme Court cases. As already intimated, there is no need for us to support our conclusion by entering upon the rather controversial decisional history under the vaguer no-establishment clause. [Note 18] But we note, first, that the Supreme Court has been regularly unreceptive to schemes of circumvention which resemble that attempted by the present legislation; second, that the Supreme Court's book loan cases are themselves anomalous.

Holding unconstitutional the loan of instructional material and equipment (other than books), the Court found irrelevant that "the state legislature decided to channel the goods through the parents and pupils. Despite the technical change in legal bailee, the program in substance is the same as before: The equipment is substantially the same; it will receive the same use by the students; and it may still be stored and distributed on the nonpublic school premises." Wolman v. Walter, 433 U.S. 229, 250 (1977). A tuition reimbursement plan was similarly struck down in Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973): the fact that

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the funds went to parents and students, not the schools, failed to legitimate the program. Id. at 781. And see Lemon v. Kurtzman, 403 U.S. 602, 614 (1971) (Court declines to join in "a legalistic minuet").

As the defendants point out, the Supreme Court has upheld loans of secular textbooks to parochial school students under the no-establishment clause. Board of Educ. of Cent. School Dist. No. 1 v. Allen, 392 U.S. 236 (1968), followed in Meek v. Pittinger, 421 U.S. 349 (1975); Wolman v. Walter, supra. [Note 19] (Our anti-aid amendment marks no difference between "aids," whether religious or secular. [Note 20]) The Court, however, has strongly indicated that it is dissatisfied with its handiwork, which suggests that there might now be support for holding otherwise if the question were one of first impression. When the Court last year ruled out loans of various instructional materials and equipment, it recognized an inconsistency with its book loan cases: "There is, as there was in Meek, a tension between this result and Board of Education v. Allen, 392 U.S. 236 (1968) .... Board of Education v. Allen has remained law, and we now follow as a matter of stare decisis the principle that restriction of textbooks to those provided the public schools is sufficient to ensure that the books will not be used for religious purposes. In more recent cases, however, we have declined to extend that presumption of neutrality to other items in the lower

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school setting.... When faced, however, with a choice between extension of the unique presumption created in Allen and continued adherence to the principles announced in our subsequent cases, we choose the latter course." Wolman v. Walter, supra at 251-252 n.18.

The Allen case indeed appears anomalous when considered against the sweep of Supreme Court cases concerning aid to church-affiliated schools. In retrospect Allen seems a false inference from Everson v. Board of Educ. of Ewing, 330 U.S. 1 (1947), which validated as a general safety measure a program for busing private as well as public school children at State expense: it is noteworthy that Mr. Justice Black, who wrote for a narrow majority in Everson, dissented vigorously in Allen. Incompatible with Allen is Lemon v. Kurtzman, supra, the case which disallowed a plan for "purchase" of secular educational services at private schools on the ground that this must involve excessive "entanglement" of government with religion--there was stress on the impossibility of distinguishing in practice the religious activities of the schools from their secular endeavors which alone were supposedly to be aided. Id. at 616-617. Inconsistent is Wolman v. Walter, supra, so far as it held impermissible the furnishing of bus rides for field trips, and the supply of instructional means such as maps and audio-visual aids, the Court perceiving that any of these could be applied to sectarian purposes. See also Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973). Cf. New York v. Cathedral Academy, 434 U.S. 125 (1977).

What the Court said about textbooks in Norwood v. Harrison, 413 U.S. 455 (1973), also merits attention. The case held that the loan by the State of textbooks to students in racially exclusive private schools violated the State's constitutional duty not to aid racial discrimination. (This is certainly not an issue in Massachusetts. See note 6, supra.) With secularity irrelevant, the book loans to pupils appeared identical with other substantial assistance to the schools themselves: "This Court has consistently

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affirmed decisions enjoining state tuition grants to students attending racially discriminatory private schools. A textbook lending program is not legally distinguishable from the forms of state assistance foreclosed by the prior cases. Free textbooks, like tuition grants directed to private school students, are a form of financial assistance inuring to the benefit of the private schools themselves.... Textbooks are a basic educational tool and, like tuition grants, they are provided only in connection with schools; they are to be distinguished from generalized services government might provide to schools in common with others [citations omitted]." 413 U.S. at 463-465.

5. Limits of the present decision. Our holding today that the questioned part of G. L. c. 71, Section 48, is unconstitutional on its face does not imply any decision that sundry general benefits not entering into the educational process at elementary and secondary schools are also offensive to the Constitution. [Note 21] As an example, and without now passing on the matter, we may note that provision of busing (G. L. c. 76, Section 1) is distinct from a textbook program. [Note 22] It might be enough to say, as the Supreme Court did in Everson, that busing is simply a community safety measure like police and fire protection; but even when the question is inquired into more closely, it is seen that the "aid" involved is quite remote: the pupil individually "consumes" the bus ride entirely; busing has no role in the teaching function, the school's essential enterprise; no technique of circumvention is involved; and there is no "entanglement" risk comparable to that involved in the selection of textbooks (see note 16, supra). The furnishing of health services (G. L. c. 71, Section 57) seems comparable to

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busing, and subsidized school meals may fall into the same category. [Note 23] (G. L. c. 71, Section 72. St. 1948, c. 548, Section 12, as appearing in St. 1970, c. 871, Section 4.) Exemptions from property taxation accorded to schools (G. L. c. 59, Section 5) entail no "grant, appropriation or use" of public money within the meaning of the anti-aid amendment, as was made clear at the 1917 convention. See 1 Debates in the Massachusetts Constitutional Convention, 1917-1918, at 361 (1919); R. L. Bridgman, The Massachusetts Constitutional Convention of 1917, at 34 (1923); Massachusetts Soc. for the Prevention of Cruelty to Animals v. Commissioner of Pub. Health, 339 Mass. 216, 229-230 (1959); Worcester v. New England Inst. & New England School of Accounting, Inc., 335 Mass. 486, 490 (1957); Walz v. Tax Comm'n, 397 U.S. 664, 671-672 (1970). [Note 24]

6. Conclusion. We recognize the difficulties of the textbook loan issue. Its proper resolution under the First Amendment has given the Supreme Court much trouble, evidenced by its ambivalent attitude toward the Allen decision. The resolution of the question under varying State Constitutions has divided the State courts among and within themselves. [Note 25] More generally, we are aware of

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the conflicting arguments of policy brought to bear on the issue of assistance to private education, and we acknowledge the weight of the argument that centers on the importance

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of nonpublic schools for the promotion of social pluralism and encouragement of experimentation in educational method. We acknowledge, too, that for some the choice of a religious school for children is a matter of conscience, and yet under present conditions may be out of reach for economic reasons. But for this Commonwealth, the counter arguments have prevailed to the extent of an anti-aid amendment, and we do not think any plausible interpretation of it could tolerate the particular legislation under review. If there is to be a relaxation of the State's present limitations on public aid to private education, it is fitting that the voters of the Commonwealth should command it, as they have done before.

The judgment appealed from is reversed, and a judgment will enter enjoining the enforcement of the second paragraph of G. L. c. 71, Section 48. [Note 26]

So ordered.