# People Ex Rel. Klinger v. Howlett

> Illinois Supreme Court · October 1, 1973 · 56 Ill. 2d 1

URL: https://www.frixlaw.com/law-library/cases/9527270

## Case

- **Full name:** The PEOPLE Ex Rel. LAWRENCE E. KLINGER, Appellant, v. MICHAEL J. HOWLETT, Auditor of Public Accounts, Appellee
- **Court:** Illinois Supreme Court
- **Decided:** October 1, 1973
- **Citations:** 56 Ill. 2d 1; 305 N.E.2d 129; 1973 Ill. LEXIS 204
- **Precedential status:** Published
- **Opinion:** Dissent by Kluczynski
- **Judges:** Schaefer, Kluczynski, Ward
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9527270

## How later opinions describe it (automated extraction)

- holding that analysis of constitutionality of state-supported religious activity under Illinois and United States Constitutions is coextensive

## Opinion text

MR. JUSTICE KLUCZYNSKI, dissenting:
I agree with the majority disposition of Public Act 77 — 1890, which attempted to provide a monetary reimbursement to qualified parents who send their children to nonpublic schools. However, I disagree with the resolution of Public Act 77 — 1891 (Books and Services Act) and Public Act 77 — 1895 (Educational Development Board Act).
The majority finds it unnecessary to determine whether the State grants for secular textbooks services to nonpublic schools are paid to the respective school districts or the parents of nonpublic school students. The plain reading of section 8 of Public Act 77 — 1891 (Ill. Rev. Stat., 1972 Supp., ch. 122, par. 1028) demonstrates that the payments are payable by the State to the local school district which is liable to account for its expenditures in this program to State authorities.
Despite the United States Supreme Court ruling in Board of Education v. Allen, 392 U.S. 236 , 20 L. Ed. 2d 1060 , 88 S. Ct. 1923 , that upheld the State’s authority to loan secular textbooks to nonpublic school students, the majority herein has determined that the present statute, which is analogous to that involved in Allen, is constitutionally deficient under the first amendment. The majority premises its position on several grounds. It says that the statute expressed an erroneous philosophy for the reason that the State does not have a “duty” to provide such aid nor are any parents “entitled” to reimbursement for their expenses incurred in providing their children with private schooling. It evidently reasons that all students are not treated alike. The majority further finds fault in such aid because it believes that the State subsidizes textbook expenses for nonpublic school students while local taxpayers bear the burden of supplying these same items for secular institutions. It concludes that parents of nonpublic school children obtain an economic benefit to the exclusion of other parents.
I disagree with these premises. In Allen the statute at issue imposed a duty upon local school boards to purchase and loan secular textbooks, upon request, to nonpublic school students. ( 392 U.S. 236 , 239 n.3, 20 L. Ed. 2d 1060 , 1063 n.3, 88 S. Ct. 1923 .) In Board of Education v. Bakalis, 54 Ill.2d 448 , we upheld the statutory requirement of local school boards to provide the same transportation facilities to nonpublic school students as those provided to public school pupils. From the statute considered in Bakalis it is possible to conclude that a nonpublic school student became entitled to this transportation. It is further evident that such aid could conceivably reduce one of the possible expenses attendant to a private education. I must conclude in light of Allen and Bakalis that the first basis which the majority utilizes to disallow secular textbook aid presents a semantical rather than constitutional objection.
I do not find the majority rationale convincing that all students are not treated alike. It is obvious to me that a public school student who rents or is loaned his text material is treated exactly the same as his nonpublic school counterpart who receives the same items under the same distribution terms. The majority position also seems to be founded on its objection as to who will bear the tax burden of implementing this program. At the outset of the majority opinion three factors are specified for determination as to whether legislation violates the establishment clause of the first amendment. The majority opinion fails to demonstrate how its position is related to any of these criteria. Moreover, all local taxpayers contribute to support of local schools while all taxpayers throughout the State would contribute to support programs involved in Public Act 77 — 1891. There is no contention that each taxpayer within his respective classification would not be treated equally, and even if such argument was made it would arise from a violation under the fourteenth rather than first amendment. (See People ex rel. County Collector of Cook County v. Northwestern University, 51 Ill.2d 131 .) Nor can the majority construe secular textbook aid as improper because it confers an economic benefit, upon request, to those parents who choose to send their children to nonpublic schools by reducing a possible expense attendant thereto. This position was specifically rejected in the Allen decision. 392 U.S. at 243-44 , 20 L. Ed. 2d at 1066 .
I would thus uphold that portion of the circuit court’s judgment which sustains secular textbook assistance to nonpublic school students under the rationale of Allen, whose principle has been continuously reaffirmed by the United States Supreme Court. Sloan v. Lemon, 413 U.S. 825, 832 , 37 L. Ed. 2d 939, 945 , 93 S. Ct. 2982 ; Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 775 , 37 L. Ed. 2d 948, 964 , 93 S. Ct. 2955, 2966 ; Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, 481 , 37 L. Ed. 2d 736, 743 , 93 S. Ct. 2814, 2819 ; Lemon v. Kurtzman, 403 U.S. 602, 616 , 29 L. Ed. 2d 745, 758 , 91 S. Ct. 2105 .
The majority further invalidates those statutory provisions in Public Act 77 — 1891 which would provide for “School Health Services,” such as physician, surgical, nursing and dental care, to nonpublic school students. The majority concedes that these services “are either purely secular or they can be determined to be secular without such policing as would amount to ‘excessive entanglement.’ ” However, the majority overturns these programs, concluding again that they do “not treat all students alike. *** services furnished to nonpublic school students *** are paid for by the State; those furnished to public school students are paid for by local taxpayers.”
I have heretofore expressed my views concerning the propriety of such reasoning and need not reiterate them. Additionally I believe that the majority deems Sloan v. Lemon, 413 U.S. 825 , 37 L. Ed. 2d 939 , 93 S. Ct. 2982 , of controlling significance to resolution of both textbook aid and the medical, dental and other associated auxilary programs. In Sloan a State plan for tuition reimbursement to parents of nonpublic school students was determined to be violative of the first amendment. In viewing the substance of that legislation the United States Supreme Court differentiated between those State programs which conferred “ ‘indirect’ and ‘incidental’ benefits” to all parents regardless of whether their children attended public or nonpublic schools and those plans which resulted in the “ ‘sponsorship’ or ‘financial support’ of religion or religious institutions.” (413 U.S. at 832-3, 37 L. Ed. 2d at 945, 93 S. Ct. at 2987.) It is plainly evident that Sloan does not support the majority position.
I would hold that the medical and the related auxilary services in Public Act 77 — 1891 are proper. It is apparent that these programs cannot be considered a direct or substantial attempt to benefit religious education. Rather they are designed to insure the general health and safety of all children without regard to the educational system their parents choose. The United States Supreme Court has upheld the constitutionality of similarly designed legislation (see Everson v. Board of Education, 330 U.S. 1 , 91 L. Ed. 711 , 67 S. Ct. 504 ; Lemon v. Kurtzman, 403 U.S. 602, 616 , 29 L. Ed. 2d 745, 758 , 91 S. Ct. 2105 ), and such view is not without support in this court. Board of Education v. Bakalis, 54 Ill.2d 448, 473 (Ryan, J., specially concurring).
The majority strikes down the other auxilary services (guidance counseling, psychological services, remedial and therapeutic programs for educationally disadvantaged children) established by Public Act 77 — 1891. Despite the circuit court’s determination that the services will be secular in nature, the majority concludes that these programs “are not susceptible of supervision to assure strictly secular content.” It relies upon Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472 , 37 L. Ed. 2d 736 , 93 S. Ct. 2814 . In Levitt the statute provided that nonpublic schools were to be given State tax monies to reimburse these institutions for testing services. Compensation was given on a per-pupil basis and included expenses for State-required tests as well as those drafted by nonpublic school teachers. The latter category was found to comprise the overwhelming majority of tests given. It was further noted that there was no auditing system to determine if the amount of funds provided exceeded actual costs, nor was there a provision for the return of funds not used for testing. The Supreme Court found that the statute “as written and applied by the. Commissioner of Education” was violative of the first amendment because the statute did not set forth safeguards nor were other means available to prevent a substantial risk that tests composed by private school teachers would consciously or otherwise contain religious instruction. 413 U.S. at 479, 37 L. Ed. 2d at 742, 93 S. Ct. at 2818-2819.
Levitt is inapplicable to the present case. Here, section 16 of Public Act 77 — 1891 mandates that proper accounting procedures be adopted to accurately determine the amount of funds used for these auxilary services (Ill. Rev. Stat., 1972 Supp., ch. 122, par. 1036), and, as the majority recognizes, this amount is payable to the public school districts and not to nonpublic schools. I also believe that this statute envisions that these auxilary services, unlike Levitt, be furnished by the local school district and would not in any manner be controlled or influenced by the nonpublic school or its employees. Sections 17 and 18 of Public Act 77 — 1891 additionally permit each school district and the Superintendent of Public Instruction to adopt rules and regulations pertinent to the implementation of the Act. (Ill. Rev. Stat., 1972 Supp., ch. 122, pars. 1037, 1038.) This feature further distinguishes the present case from Levitt, for here exists statutory authorization which may permit adoption of any necessary additional safeguards relative to the auxilary programs to prevent the intrusion of religious precepts by means of appropriate rules and regulations. The aforementioned characteristics may make possible a strictly secular program content and may obviate any inherent potential conflict which the majority fears.
Public Act 77 — 1891 was passed by the General Assembly on June 27, 1972 (Laws of 1972, vol. 1, p. 258), and became effective on July 1, 1972. This action was commenced immediately thereafter. The record does disclose that proposed rules and regulations had been formulated to implement Public Act 77 — 1891, and it was further established that they might be altered. The circuit court found that these administrative regulations did not create an excessive entanglement between the State and religious institutions. However, it would appear from that court’s opinion that no determination was made as to whether these rules and regulations were sufficient to insure the secular content of the auxilary programs. I would therefore vacate the judgment of the circuit court as it pertains to these services and remand the matter to that court to consider the latter issue. Upon remand the appropriate public officials, who are presumed to act in accordance with law (City of Chicago v. Ben Alpert, Inc., 368 Ill. 282, 288 ), might deem it necessary to revise the rules and regulations thereby curing any deficiency which might exist relative to safeguarding the secular content of these programs. Until such determination is made, I would reserve constitutional consideration of several of the auxilary service programs established by Public Act 77-1891.
In regard to Public Act 77 — 1895 the majority concludes that, absent the implementation of the statutory directives, resolution of its constitutionality cannot occur, yet it reverses the circuit court judgment that this statute is valid. I would uphold the circuit court determination, based upon the presumption of constitutionality attendant to legislative enactments. (North Shore Post No. 21 of the American Legion v. Korzen, 38 Ill.2d 231, 233 ), as well as upon evidence contained in the record which reflects that this statute will be implemented under rules and regulations similar to those promulgated by the Federal government under Title III ( 20 U.S.C. sec. 841 et seq.), which established a comparable Federal program. Moreover, the majority’s reversal leaves unclear the status of this legislation. This action originated because the Auditor of Public Accounts was in doubt as to the constitutionality of the several statutes and thus refused to process vouchers or issue warrants pursuant thereto. This doubt has not been resolved, and, by setting aside the circuit court order for a writ of mandamus, implementation of Public Act 77 — 1895 may be precluded.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9527270. Public record. Not legal advice.