The opinion
Honorable J. J. Brown, Director
Vocational Rehabilitation DFvLsion
State Department of Education
Austin, Texas
Dear Sir: Opinion No. O-2412
Re: Authority of the Vocational Reha-
bilitation Division of the State
Department of Education to pay
tuition of physically handicapped
persons In denominational schools.
We have your letter requesting an opinion on the a-
bove subject which reads as follows:
?everal years ago the Vocational Rehablli-
tation Department in the State Department of Educa-
tlon patronized denomlnatlonal schools and the
Comptroller's Department brought up the question
as to the legality of the State Department of
Education patronizing denominational schools. Mr.
Gagnor Kendall who at that time was Assistant At-
torney General made an exhaustive study of this
matter and told the Director of VocatIonal Re-
habilitation, J. J. Brown, that he felt sure that
if a ruling was made it would be to the effect
that the Vocational Rehabilitation Department
could not patronize a denominational school. We
didnot ask that a ruling be made but simply
withdrew all students from denominational schools.
From time to time the question is again brought
up by various denominational schools as to why
physically handicapped people cannot have their
tuition paid in denominational schools."
In addition to the facts set out Fn your letter, you
have advised us that it is the'practice of your department to
select the school and course of training which will be best
adapted to the needs and.talents of the applicant; that you
pay no money to the applicant, but make payment of tuition
direct to the school.
We understand that vocational rehabilitation is admln-
lstered by your department under the authority of Senate Bill
Honorable J. 3. Brown, page 2 O-2412
No. 86, Chapter 23, Acts of the 1st Called Session of the 41st
Legislature, 1929, and pursuant to the regulations of the Fed-
eral Board for Vocational Education as provided by an Act of
Congress passed June 2, 1920, and amended June 5, 1924, en-
titled "An Act to provide for the promotion of vocational
rehabilitation of persons disabled in industry or otherwise,
and their return to civil employment." The Federal and
State governments both contribute funds for carrying out the
purposes of your department.
Your question resolves itself to a determination of
whether or not the payment of tuition by your department to
denominational schools for the training of persons eligible for
assistance Is prohibited by Article I, Section 7, of the
Constitution of Texas which reads as follows:
"No money shall be appropriated, or drawn from
the Treasury for the benefit of any sect, or re-
ligious society, theological or religious seminary;
nor shall property belonging to the State be ap-
propriated for any such purpose."
The exact question here involved has never been directly
passed upon by the appellate courts of Texas, so far as we have
been able to ascertain. The above quoted constltutional pro-
vision, however, clearly prohibits state aid to religious in-
stitutions. Does the payment of tuition constitute aid to
the institution?
In Jernlgan v. Finley, 90 Tex. 205, 38 S. W. 24, the
Texas Supreme Court in construing the a{alogous provision,
Art. VII, Sec. 5, which reads in part, .....And no law shall
ever be enacted appropriating any part of the permanent or
available school fund to any other purpose whatever; nor shall
the same or any part thereof ever be approprFat;edto or used
for the support of any sectarian school. . . . declared~:
"The Legislature cannot do by Indirection what it cannot do
directly."
We believe that If State monies were used to pay the
tuition fees of students in denominational schools the State
would thereby be contributing indirectly to the support of such
schools.
The Supreme Court of South Dakota in Synod v. State
(1891) 2 S. D. 366, 50 N. W. 632, held that the payment of
tuition of certain students, by the state, to a Presbyterlan
university was an appropriation for "the benefit of" a sec-
tarian school ln violation of Art. VI, Sec. 3, of the South
Dakota Constitution which provided that "no money or property
Honorable J. J. Brown, page 3 O-2412
of the state shall be given or appropriated for the benefit
,-ofany secterian or religious society or institution."
A similar provision in the Constitution of Kentucky
was held to prohlblt the payment, by the Stste, of tuition of
certain pupils in a sectarian school. Williams v. Stanton
Graded Common School Dlst., 173 Ky. 708, 191 S. W. 507. The
Kentucky Court of Appeals declared:
I,
. . . to make clear and certain our deter-
mination to preserve the spirit of the Constitu-
tion and its efforts to keep separate church and
school, we not only hold that it is a violation
of the Constitution to appropriate any part of
the common school fund 'in aid of any church,
sectarian, or denominational school', but equally
unlawful for the trustees of any common or graded
school, or educational institution supported
in whole or in part by public funds raised by
taxation, or dedicated to common.school purposes,
to enter into any contracts, agreements or ar-
rangements through or under which such school or
educstional institution may be brought directly
or indirectly under the influence, control, or
supervision of any denominational or sectarian
institution or school."
The Wisconsin Supreme Court declared in State et rel
Van Straten v. Milquet, 180 Wls. 109, 192 N. W. 392, that a
school district bus might not carry any children to a parochial
school.
See also: Cook County v. Chicago Industrial School,
125 Iii. 540, 18 N. E. 183; State ex rel Nevada Orphan
&&um7;; Hallock (1882) 16 Nev. 385; Otkin v. Lawkln, 56
. ; Jenkins v. Andover, 103 Mass. 94.
Under the foregoing authorities we believe that your
department is forbidden by Art. I, Sec. 7, of the Texas Constl-
tutlon, supra, to pay tuition of any persons ln denominational
or sectarian schools.
Honoreble J. J. Brown, page 4 O-2412
Yours very truly
ATTORNEY GENERAL OF TEXAS
BY s/Walter R. Koch
Walter R. Koch
Assistant
WRK:GO:wc
APPROVED AUG 16, 1940
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
This Opinion Considered And Approve In Limited Conference